RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 SEPTEMBER 2006
      DOCKET NUMBER:  AR20060000807


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 records be corrected by restoring his
rank to Command Sergeant Major (CSM).

2.  The applicant states that he was accused of grabbing a Soldier by his
collar.  At first, he wanted a court-martial but his chain of command told
him to take the Article 15; however, about a week later they took his CSM
rank from him.  He was transferred to Fort McClellan, Alabama, and was
treated with great indifference.  He lost his need to be a Soldier, so
after 26 years of service he got out.  He realizes that this happened over
20 years ago, but had to appeal this decision because he felt he was
treated unfairly, and wants to get the rank he earned back.

3.  The applicant provides copies of his Enlisted Evaluation Reports, his
awards, and a copy of his DD Form 214 (Certificate of Release or Discharge
from Active Duty), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 30 November 1983.  The application submitted in this case is dated
18 November 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 enlisted in the Regular Army on 14 October 1957 and
remained in the military for over 26 years, retiring on 30 November 1983,
in the rank of Sergeant Major, pay grade E-9.

4.  The applicant's records indicate he served in Alaska, Korea, Vietnam,
and Panama.



5.  On 27 November 1982, the applicant accepted nonjudicial punishment
under the provisions of Article 15, Uniform Code of Military Justice, for
assaulting a Private E-2, by shoving him into a wall.  His punishment was a
forfeiture of $250.00 per month for 2 months.

6.  On 26 November 1982, the applicant received a Letter of Reprimand for
his conduct on 30 October 1982, in which he was charged with disorderly
conduct and communicating a threat.  His commander directed that the letter
of reprimand be placed in the efficiency portion of his Official Military
Personnel File.

7.  On 30 November 1982, the applicant acknowledged receipt of the Letter
of Reprimand, stating he had read and understood the unfavorable
information presented against him, and elected not to make a statement.

8.  The applicant received a "Relief for Cause" Noncommissioned Officer
Enlisted Evaluation Report (NCOER) for the period July 1982 to December
1982. His relief for cause was based on the applicant having received an
Article 15 and a Letter of Reprimand for two separate incidents of
misconduct; one involving assault and the other involving an altercation
with a girlfriend.

9.  The applicant's NCOER notes that prior to his misconduct he had
exemplified the finest in Soldiering qualities, and was a superb trainer,
counselor, and leader.

10.  The applicant was transferred to Fort McClellan, Alabama, in January
1983.

11.  On 7 November 1983, his request for exception to policy to allow him
to submit his retirement papers prior to being on current installation 12
months was approved.

12.  On 30 November 1983, the applicant retired, under the authority of
Title 10, United States Code, Section 3914.  His DD Form 214 indicates he
retired in the rank of Sergeant Major and at the pay grade of E-9.

13.  The applicant submits copies of some of his NCOERs, awards and letters
of appreciation.  These documents attest to his high quality of service,
his no nonsense approach to Soldiering, and his ability to counsel problem
Soldiers.





DISCUSSION AND CONCLUSIONS:

1.  Evidence shows, while the applicant had achieved the rank of CSM, his
acts of misconduct resulted in his receiving an Article 15, a Letter of
Reprimand, his being relieved from his position, and the removal of his CSM
status.

2.  At the time of the applicant's retirement he was serving in the rank of
Sergeant Major, and there is no justification for restoring his rank to
CSM.

3.  The Board notes the applicant's years of service; however, his acts of
misconduct were inappropriate and do not warrant the relief requested.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 November 1986.  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

__LS  ___  ___PS __  ___AM __  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.




                                  _____ Linda Simmons_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000807                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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