RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20050018085


      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             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 that his summary court-martial be vacated and he
be administratively restored to the rank of sergeant (E-5).

2.  The applicant states that the incident that led to his court-martial
occurred while he and several other Soldiers were horsing around, it was a
joke, and no one involved took it as anything else.  He indicates that he
was on the E-6 promotion list at the time of the court-martial and as such
actually lost two grades.  He attempted to appeal the sentence and get
supporting statements from the other Soldiers but they were told not to
assist him.  He states that he was not only punished as directed by the
court-martial but again by the loss of two grades and the bar to
reenlistment.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 November 1982, the date of his discharge.  The
application submitted in this case is dated 16 December 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.  The applicant entered active duty on 9 August 1976, completed training,
and was awarded the military occupational specialty 95B (Military
Policeman).  He reenlisted on 7 November 1979.

4.  The applicant was promoted to sergeant (E-5) effective 1 July 1980 with
a date of rank of 9 June 1980.

5.  Headquarters Law Enforcement Command Summary Court-Martial Order Number
6, dated 5 April 1982, indicates that the applicant was found guilty of
wrongfully soliciting a sergeant to commit assault by chambering a round in
his .45 caliber pistol, handing it to a fellow sergeant, and telling the
sergeant to shoot him.  His sentence was reduction to pay grade E-4 and
forfeiture of $545.00 pay per month for one month.

6.  A 18 June 1982 Form Letter FPFL 375 indicates the applicant signed a
“self-imposed Bar to Reenlistment in lieu of overseas service”.

7.  The applicant was honorably discharged on 5 November 1982 under Army
Regulation 935-200, chapter 4, completion of required service.

8.  Army Regulation 635-200, chapter 4 provides, in pertinent part, that a
Soldier will be separated upon expiration of enlistment or fulfillment of
service obligation. It also provides that Soldiers who are precluded from
retention for any reason will not be retained beyond the last day of the
month in which their ETS falls.

9.  The statutory authority under which this Board was created (Title 10,
United States Code, section 1552, as amended) precludes any action by this
Board which would disturb the finality of a court-martial conviction.

DISCUSSION AND CONCLUSIONS:

1.  The Board does not have the authority to disturb the finality of the
court-martial and the applicant has failed to provide sufficient evidence
that the actions and punishment was excessive or out of proportion with the
offense for which he was found guilty.

2.  Without a finding that the court-martial was unduly harsh restoration
of his lost rank is not warranted.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 November 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 November 1985.  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

__MJF___  __MKP  ___GJP         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.




                                  __Margaret K. Patterson___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018085                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |. . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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