RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014423 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann, Jr. 

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, in effect, that his nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, be voided, and that his rank and fine be restored to him.  The applicant requests to personally appear before the Board.

2.  The applicant states that he was very tired and while attending riot control training he dozed off for a few minutes.  He states that he was demoted and fined.  He feels that based on his service in the Republic of Vietnam, the punishment was unjust. 

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 September 1968, the date of his release from active duty.  The application submitted in this case is dated 10 October 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.  On 19 September 1966, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 13B1O (Field Artillery Crewman).

4.  On 11 February 1967, the applicant was assigned for duty as a Cannoneer with the 7th Battalion, 11th Artillery Brigade, in the Republic of Vietnam.

5.  On 20 September 1967, the applicant was awarded the Purple Heart for wounds received in action against a hostile force on 17 September 1967.

6.  Unit Order Number 1, 7th Battalion, 11th Artillery Brigade, dated 1 January 1968, promoted the applicant to the rank of corporal, pay grade E4.

7.  General Orders Number 526, 25th Infantry Division, dated 5 February 1968, awarded the applicant the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from March 1967 to March 1968.

8.  General Orders Number 978, 25th Infantry Division, dated 4 March 1968, awarded the applicant the Bronze Star Medal for heroism on 19 December 1967. During an intense mortar and ground attack, he immediately left the safety of his bunker to extinguish a fire which had started in his section's ammunition bunker.  Despite the danger from enemy small arms fire and fragments from a nearby exploding ammunition dump, the applicant extinguished the flames and remained in position to guard his section's men and equipment from the infiltrating enemy.

9.  On 16 April 1968, the applicant was reassigned for duty as a prime mover driver with the 3rd Battalion, 30th Artillery Brigade, Fort Sill, Oklahoma.

10.  Unit Order 109, 30th Artillery Brigade, date unknown, reduced the applicant to the rank of private first class, pay grade E3.  The applicant's records are devoid of evidence explaining the reason for his reduction.

11.  On 18 September 1968, the applicant was transferred to the United States Army Reserve Control Group (Annual Training).  He had completed 2 years of creditable active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance before the Board should be denied since his case does not require a formal hearing.  If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board.

2.  The evidence of record clearly shows that the applicant's service in the Republic of Vietnam was heroic.  

3.  There is no available evidence regarding the circumstances surrounding his subsequent reduction in rank. 

4.  In the absence of evidence to the contrary, it is presumed that he was reduced in accordance with law and regulations applicable at the time.  Without knowing the reasons for his reduction, a determination as to whether or not his 
heroic action in the Republic of Vietnam would have been mitigating cannot be made.

5.  In view of the above, the applicant's request should be denied.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 September 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
17 September 1971.  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

__JEV_   _  __PHM  _  ___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.




_       _James E. Vick_____
          CHAIRPERSON




INDEX

CASE ID
AR20060014423
SUFFIX

RECON
 
DATE BOARDED
 20070424
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126.0400
2.

3.

4.

5.

6.