RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060004424


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen Raub                    |     |Chairperson          |
|     |Mr. Frank Jones                   |     |Member               |
|     |Mr. Qawiy Sabree                  |     |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 rank of specialist four (SP4), E-4 be
restored and his bar to reenlistment be removed.

2.  The applicant states that he volunteered to go to Vietnam.  He states
that amnesty was given to draft dodgers.  He also states that he left his
base at Vinh Long and stayed downtown for 1 or 2 days.  He came back on his
own after 9 or 10 months and his commanding officer “busted” him to E-1.
He asks for his rank to be restored and his bar to reenlistment removed.
He wants to be given amnesty for what he did.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 1 September 1971.  The application submitted in this case is dated 10
March 2006.

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 was inducted into the Army on 26 August 1969.  He
completed training as an armorer/unit supply specialist.  He was advanced
to private E-2 on 26 December 1969.  The applicant arrived in Vietnam on 3
March 1970 and was advanced to private first class (PFC) on 26 March 1970.

4.  He was promoted to SP4, E-4 on 14 July 1970.

5.  Item 44 (Time Lost under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) on the applicant’s DA Form 20 (Enlisted
Qualification Record) shows he was absent without leave (AWOL) from
11 November 1970 to 16 November 1970 (sic).  There is no record of
nonjudicial punishment under Article 15, Uniform Code of Military Justice
(UCMJ) for this period of AWOL.
6.  On 11 December 1970, the applicant accepted nonjudicial punishment
under Article 15, UCMJ for being absent from his place of duty on 8
December 1970 from 0700 hours to 0930 hours.  His punishment consisted of a
reduction to PFC, pay grade E-3 and 2 hours of extra duty for 14 days.

7.  On 7 January 1971, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for being absent from his place of duty on 2 January 1971
(0700 hours to 1700 hours) and for being absent from his place of duty on
3 January 1971 (0700 hours to 1115 hours).  His punishment consisted of a
reduction to the rank of private pay grade E-1, a forfeiture of $50.00 pay
per month for 1 month, 14 days extra duty, and 14 days restriction to the
Vinh Long Army Airfield Compound.

8.  He departed Vietnam on 21 January 1971.

9.  He was advanced to private E-2 on 7 February 1971.

10.  Item 44 on the applicant’s DA Form 20 shows he was AWOL from 15 June
1971 to 22 June 1971.  There is no record of nonjudicial punishment under
Article 15, UCMJ for this period of AWOL.

11.  On 20 July 1971, the applicant’s company commander submitted a
certificate of unsuitability for reenlistment in accordance with Army
Regulation 601-280, chapter 1, section 8 because he considered the
applicant a substandard Soldier who should be barred from reenlistment in
the service.  The unit commander indicated the applicant received two
Articles 15, for being AWOL from 15 June 1971 to 23 June 1971 and for
destruction of government property.  The intermediate and senior
intermediate commanders recommended approval of the certificate of
unsuitability for reenlistment.

12.  On 20 July 1971, the applicant acknowledged that he had read and
understood the allegations by his company commander concerning his
unsuitability for reenlistment and elected not to submit a statement in his
behalf.

13.  On 26 July 1971, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for willfully damaging military property of the United
States by breaking three window panes in the first floor latrine, of a
value of about $17.00.  His punishment consisted of a forfeiture of $20.00
pay per month for 1 month and restriction to the company area for 14 days.

14.  The appropriate authority approved the bar to reenlistment on 5 August
1971.

15.  Headquarters, U.S. Army Training Center and Fort Campbell Special
Orders Number 215, dated 31 August 1971, released the applicant from active
duty in the rank of private E-2 and transferred him to the U.S. Army
Reserve on the following date.

16.  The applicant was honorably released from active duty on 1 September
1971 under the provisions of Army Regulation 635-200, paragraph 5-3 for
other good and sufficient reason when determined by Secretarial Authority
and Department of the Army (DA) Message P131940Z, dated August 1971.  He
completed 1 year, 11 months, and 23 days of active military service with 14
days of lost time due to being AWOL.

17.  His DD Form 214 shows his rank and pay grade as private E-2 with a
date of rank of 7 February 1971.

18.  Item 30 (Remarks) on the applicant’s DD Form 214 shows the entry “Bar
to reenlistment table 2-5 AR 601-210 applies.”

19.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents prepared for Soldiers upon retirement, discharge, or release from
active military service or control of the Army.  It establishes
standardized policy for the preparation of the DD Form 214.  In pertinent
part it states that the DD Form 214 is a synopsis of the Soldier's most
recent period of continuous active duty.  It provides a brief, clear-cut
record of active Army service at the time of release from active duty,
retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SP4, E-4 on 14 July 1970.

2.  The evidence of record shows the applicant was reduced from SP4 to PFC
on 11 December 1970 as a result of nonjudicial punishment under Article 15
for being absent from his place of duty.

3.  The evidence of record shows the applicant was reduced from PFC to
private E-1 on 7 January 1971 as a result of nonjudicial punishment under
Article 15 for being absent from his place of duty on two separate
occasions.

4.  The applicant was advanced back to private E-2 on 7 February 1971 and
was separated from active duty in the rank of private E-2.

5.  Based on the evidence of record, the applicant was properly reduced
based on his nonjudicial punishments with a subsequent advancement only to
PV2.  Therefore, there is on basis for restoring the applicant’s rank to
SP4.

6.  The evidence of record shows a bar to reenlistment was imposed against
the applicant for nonjudicial punishments under Article 15 for being AWOL
from 15 June 1971 to 23 June 1971 and for destruction of government
property.

7.  The applicant acknowledged that he read and understood the allegations
by his company commander concerning his bar to reenlistment.  He was also
provided the opportunity to submit a statement in his own behalf, but he
declined to do so.

8.  After a review of the evidence of this case, it is determined that the
applicant has not presented sufficient evidence which warrants showing his
bar to reenlistment was removed.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 September 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 August 1974.  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

AR______  FJ______  QS______  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.




                                  Allen Raub____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004424                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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