RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050006012


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Article 15 be set aside and
all rights and privileges be restored.

2.  The applicant states the National Personnel Records Center stated the
Article 15 was not a matter of record.  Following an infraction in which
the Uniform Code of Military Justice (UCMJ) is involved, the prima facie
case or the elements of a crime must be satisfied:  some named person must
report the irregularity, it must be an infraction of the rule of law, and
the injured party or the prosecution must present sufficient evidence to
sustain the charge.  Because there is no record or official transcript of
the Article 15, complete with all the necessary elements of the crime, it
was not and is not a valid case.

3.  The applicant provides no additional evidence.  However, the Board
considered a case from the applicant with related issues on 11 September
2001 (in Docket Number AR2001057503).  He requested reconsideration twice.
His requests were administratively closed both times.  Supporting evidence
from those cases is available.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 February 1964.  The application submitted in this case is
dated 31 March 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  After having had prior service in the Regular Air Force and the U. S.
Air Force Reserve, the applicant enlisted in the Regular Army on 14
February 1961.

4.  By letter to the applicant dated 18 January 1962, the applicant's
commander informed him it was reported to him (the applicant's commander)
that the applicant disobeyed a lawful order of a noncommissioned officer
(NCO) to sweep and clean a floor after having been ordered to do so.  (In
an October 2001 request for reconsideration of the 11 September 2001 case,
the applicant contended he was given the "order" by a Specialist Five, not
by an NCO.)  It was further reported to his commander that he failed to
repair, to wit: he was absent from reveille without authority.  (In an
October 2001 request for reconsideration of the 11 September 2001 case, the
applicant contended he was instructed to go to Augsburg after the
"insubordination" incident.  He arrived too late to report to the First
Sergeant.  He was assigned a bunk and told to report to the First Sergeant
in the morning.  He reported to the First Sergeant and was told he had been
reported as being absent from formation.)  The applicant was informed the
commander proposed to impose punishment pursuant to Article 15.

5.  By 1st endorsement dated 18 January 1962, the applicant acknowledged
receipt of the commander's proposed intentions.  The applicant stated he
did not demand trial by court-martial and no matters in mitigation,
extenuation, or defense were submitted.

6.  By 2d endorsement dated 18 January 1962, the applicant's punishment was
 a reduction to Private, E-2.  He was advised of his right to appeal.  By
3d endorsement dated 18 January 1962, the applicant indicated he did not
intend to appeal.

7.  The applicant was promoted to Private First Class, E-3 on 15 March
1963.  He was honorably discharged as a Private First Class, E-3 on 6
February 1964.

8.  On 5 February 2003, the National Personnel Records Center informed the
applicant, "The information you were seeking concerning your Article 15
from 1962 is not a matter of record."

9.  Army Regulation 27-10 is the current regulation that prescribes
policies and procedures pertaining to the administration of military
justice.  Chapter 3 states a commander will personally exercise discretion
in the non-judicial process by evaluating the case to determine whether
proceedings under Article 15 should be initiated; determining whether the
Soldier committed the offense(s) where Article 15 proceedings are initiated
and the Soldier does not demand trial by court-martial; and determining the
amount and nature of any punishment if punishment is appropriate.

10.  Army Regulation 27-10 (effective 1 January 1969) superseded, among
other regulations, Army Regulation 22-15.

11.  Army Regulation 22-15 (effective 1 February 1963) appears to have been
the regulation that established the use of the DA Form 2627 (Record of
Proceedings under Article 15, UCMJ).

12.  The Manual for Courts-Martial, United States, 1951, paragraph 32
stated that, upon receipt of charges or information indicating a member of
his command had committed an offense punishable by the UCMJ, the commander
exercising immediate jurisdiction over the member would make, or cause to
be made, a preliminary inquiry into the charges or the suspected offenses
sufficient to enable him to make an intelligent disposition of them.  The
inquiry was usually informal.

DISCUSSION AND CONCLUSIONS:

1.  The National Personnel Records Center informed the applicant the
Article     15 was not a matter of record.  The applicant uses this
information to support his contention that, because there is no record or
official transcript of the Article 15, complete with all the necessary
elements of the crime, it was not and is not a valid case.

2.  To the contrary, the Article 15 action is a matter of record.  By
letter and three endorsements, all dated 18 January 1962, Article 15 action
under the UCMJ was taken against the applicant.  The National Personnel
Records Center appears to have meant that the document currently identified
as an "Article 15," the DA Form 2627, was not a matter of record.  However,
it appears the DA Form 2627 was not established as the document used to
record Article 15 proceedings until  1 February 1963.

3.  It appears the non-judicial punishment proceedings were conducted in
accordance with applicable law and regulations; the punishment imposed was
within legal limits; and the record of proceedings (letter and three
endorsements) is properly on file.  In the absence of extraordinary
circumstances the Board is reluctant to substitute its judgment for that of
the commander who was on the scene on the question of guilt, at this late
date, and on the basis of incomplete evidence.

4.  The applicant had an opportunity to demand trial by court-martial, but
he elected not to do so.  He had an opportunity to present matters in
mitigation, extenuation, or defense (which could have included a statement
on his own behalf), but he elected not to do so.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 February 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           5 February 1967.  The applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __tmr___  __rjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006012                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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