RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2007
      DOCKET NUMBER:  AR20070001493


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 record be corrected to show
he held the rank of private first class/E-3 (PFC/E-3) and not private/E-1
(PVT/E-1) on the date of his discharge.

2.  The applicant states, in effect, he accepted a chapter 9 discharge and
never received an Article 15.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 May 1981, the date of his discharge.  The application
submitted in this case is dated 15 January 2007.

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's record shows that he enlisted in the Regular Army and
entered active duty on 22 June 1979.  He was trained in, awarded, and
served in military occupational specialty (MOS) 71L (Administrative
Specialist).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was promoted to PFC/E-3 on
26 April 1980, and that this is the highest rank he attained while serving
on active duty.  It also shows that he was reduced to private/E-2 (PVT/E-2)
on 11 September 1980, and to PVT/E-1 on 17 September 1980.

5.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on four separation occasions.
6.  On 11 September 1980, the applicant accepted NJP for being for being
absent without leave (AWOL) from 29 through 30 August 1980.  His punishment
for this offense was a reduction to PVT/E-2 (Suspended for 60 days),
forfeiture of $99.00 and 14 days of extra duty.  On 16 September 1980, the
suspended reduction was vacated and the applicant was reduced to PVT/E-2.

7.  On 17 September 1980, the applicant accepted NJP for disobeying the
lawful order of his superior commissioned officer, for being absent without
authority on 1 September 1980, and for willfully damaging military
property.  His punishment for these offenses was a reduction to PVT/E-1,
forfeiture of $75.00 and 12 days of restriction and extra duty.

8.  On 3 October 1980, the applicant accepted NJP for wrongfully possessing
marijuana.  His punishment for this offense was a forfeiture of $113.00 and
14 days of restriction and extra duty.

9.  On 3 November 1980, the applicant accepted NJP for being derelict in
the performance of his duties.  His punishment for this offense was a
forfeiture of $113.00 and 7 days of confinement.

10.  On 15 April 1981, the applicant was determined to be rehabilitation
failure from the Army Drug and Alcohol Prevention Control Program (ADAPCP)
by his ADAPCP counselor and the Director of Rehabilitation.

11.  On 21 April 1981, the unit commander notified the applicant that
action was being initiated to separate the applicant under the provisions
of chapter 9, Army Regulation 635-200, as an ADAPCP rehabilitation failure.
 In his request that the applicant be discharged, the unit commander stated
that the applicant had no desire to serve in the unit, the Army, or any
other branch of service.  He indicated that since the applicant's arrival
in the unit, he accepted NJP on four separate occasions.  He further
indicated the applicant had received numerous counseling statements and had
been relieved for cause from two duty positions.

12.  On 22 April 1981, the separation authority approved the applicant's
discharge under the provisions chapter 9, Army Regulation 635-200, and
directed the applicant receive an honorable discharge.  On 5 May 1981, the
applicant was discharged accordingly.  The separation document (DD Form
214) issued to the applicant confirms he held the rank of PVT/E-1 on the
date of his discharge and that his date of rank was 17 September 1980.  The
applicant authenticated this document with his signature on the date of his
discharge.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he never received an Article 15 and was
never reduced from the rank of PFC/E-3 was carefully considered.  However,
the evidence of record includes four DA Forms 2627 (Record of Proceedings
Under Article 15, UCMJ) that confirm the applicant accepted NJP under
Article 15 on four separate occasions.

2.  The NJP imposed on the applicant on 17 September 1980 resulted in his
reduction to PVT/E-1, as evidenced by a DA Form 2627 on file.  As a result,
it is clear the applicant's reduction to PVT/E-1 was the result of this
properly imposed Article 15 action by his unit commander and therefore,
there is an insufficient evidentiary basis to support granting the
requested relief.

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 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 May 1984.  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

___CG __  __RWS__  __KSJ __  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.




                                  _____Curtis Greenway_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001493                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1981/05/05                              |
|DISCHARGE AUTHORITY     |AR 635-200 C9                           |
|DISCHARGE REASON        |ADAPCP Rehab Failure                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Mitrano                             |
|ISSUES         1.       |133.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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