RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060013910 


	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.


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	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 report of separation (DD Form 214) be corrected to reflect that he was discharged in the pay grade of E-2 and that he be paid all back pay and allowances to which he is entitled. 

2.  The applicant states that nonjudicial punishment (NJP) was imposed against him that reduced him from the pay grade of E-3 to E-2 and that at the time he was discharged he was erroneously discharged in the pay grade of E-1.  Accordingly, his records should be corrected to reflect his discharge in the pay grade of E-2 and paid all back pay and allowances that he is due.  

3.  The applicant provides a copy of his Record of Proceedings under Article 15, UCMJ (DA Form 2627) and a copy of his report of separation (DD Form 214).  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 23 June 2003.  The application submitted in this case is dated 28 September 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 born on 2 April 1981 and was single when he enlisted in the Regular Army on 31 August 2000, for a period of 3 years, training as a cannon crewmember, assignment to Fort Campbell, Kentucky and a $7,000 cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Fort Campbell for assignment to an artillery battery.  He was advanced to the pay grade of E-2 on 28 February 2001 and to the pay grade of E-3 on 31 August 2001.  

4.  The applicant went absent without leave (AWOL) on 22 October 2001 and remained absent until 14 May 2002; however, the record is silent as to any punishment imposed for that offense.    

5.  He again went AWOL on 17 May 2002 and remained absent until he was returned to military control on 6 March 2003.  On 14 April 2003, NJP was imposed against him for the last AWOL offense.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 30 days), extra duty and restriction.  

6.  On 2 May 2003, the applicant’s commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12C for misconduct.  He cited as the basis for his recommendation the applicant’s periods of AWOL, his failure to respond to repeated counseling sessions, his repeated failure to go to his place of duty and his failure to pay his just debts.      

7.  On 20 May 2003, after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.   

8.  The appropriate authority approved the recommendation for discharge on 16 June 2003 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, the applicant was reduced to the pay grade of E-1 on 16 June 2003 and was discharged under other than honorable conditions on 23 June 2003, under the provisions of Army Regulation 635-200, paragraph 14-12C for misconduct.  He had served 2 years, 7 months and 24 days of total active service and had approximately 479 days of lost time due to AWOL.

10.  Army Regulation 635-200 serves as the authority for enlisted separations.  It provides in paragraph 1-13 that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct immediate reduction to the lowest enlisted pay grade. 

DISCUSSION AND CONCLUSIONS:

1.  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.
   
2.  The applicable regulation requires that an individual be reduced to the lowest enlisted pay grade when a Soldier is discharged under other than honorable conditions (UOTHC).  Inasmuch as the separation authority directed on 16 June 2003 that he be discharged UOTHC, he was properly reduced to the pay grade of E-1 on that date and was subsequently discharged in that pay grade on 23 June 2003.  

3.  Accordingly, his records correctly show that he was discharged UOTHC in the pay grade of E-1 and the applicant has failed to show through the evidence submitted with his application and the evidence of record that he was improperly reduced to that pay grade.  

4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 June 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 June 2006.  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

__x__  ___x_  __x_  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.


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          CHAIRPERSON

INDEX

CASE ID
AR20060013910
SUFFIX

RECON

DATE BOARDED
20070329
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.133.0000
322/reduction
2.

3.

4.

5.

6.