RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      7 August 2007
      DOCKET NUMBER:  AR20070004696


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine Fields              |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 he be reinstated to his rank of
Specialist Four.

2.  The applicant states, in effect, he believes the reason for his being
reduced in rank was totally personal in nature.  He was processing out of
his company and his bags were packed.  When he came to get his bags, the
commander had them opened and began going through them.  When he finished,
he instructed him to come down stairs to his office.  Upon arrival in his
office, he handed him a form – a bar to reenlistment and reduction in rank
to Private, E-2.  He stated he had disobeyed a lawful order to come to his
office.

3.  The applicant adds that he never had a chance to appeal the action nor
did he understand the future consequences.  He followed the last order
which was to re-pack his bags and to report to the commander's office.

4.  The applicant provided nothing in support of his request beyond his
application to the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error and
injustice which occurred on 21 January 1983, the date of his release from
active duty.  The application submitted in this case is dated 15 March
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 enlisted in the US Army Reserve on 4 March 1977 and on
18 March 1977 he enlisted in the Regular Army for a period of 3 years.  He
successfully completed basic combat training at Fort Knox, Kentucky.  He
attended the Sheridan Turret Mechanics Course at Fort Knox; however, he did
not complete this course.  He was sent to Fort Lee, Virginia, and underwent
training and was awarded the military occupational specialty 76Y,
Unit/Organization Supply Specialist.

4.  The applicant was honorably discharged on 21 January 1980 for the
purpose of immediate reenlistment.  He reenlisted for 3 years on 22 January
1980.

5.  Item 18 (Appointments and Reductions), of the applicant's DA Form 2-1,
Personnel Qualification Record, Part II, shows he was promoted to the rank,
Specialist Four, on 1 April 1980.

6.  On 31 July 1981, the applicant received non-judicial punishment
under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ), for absenting himself from his place of duty from 0800
to on or about 1145 hours, on 26 July 1981. The imposed punishment was
an official reprimand and a reduction in pay grade to E-3 (suspended for
90 days).  The applicant did not appeal the punishment.

7.  On 17 February 1982, the applicant was counseled by his commander about
his intention to bar him from reenlistment.  The applicant submitted a
statement in his own behalf.  In this statement, the applicant stated he
felt the bar to reenlistment should not take effect because he had not in
anyway refused an overseas assignment.  He stated he had volunteered to be
assigned overseas and added that he felt he was being "double jeopardized"
for his past mistakes.

8.  On 4 March 1982, the applicant's commander submitted a DA Form 4126-R,
Bar To Reenlistment Certificate, into command channels.  The commander
cited 1 record of non-judicial punishment, 2 records of non-payment of just
debts, and 8 other factual and relevant indicators of untrainability or
unsuitability which included:  4 letters of counseling, 1 statement of
counseling, and 2 letters of reprimand.

9.  On 5 March 1982, the bar to reenlistment was approved by the
appropriate approving authority.  The applicant acknowledged the bar to
reenlistment on the same day.  The applicant was given 15 days in which to
submit an appeal to the bar to reenlistment.

10.  On 16 May 1982, the applicant received non-judicial punishment under
the provisions of Article 15 of the UCMJ, for failing to go to his
prescribed place of duty on 1 April 1982 and, for wrongfully
appropriating a 2 1/2 ton vehicle, property of the US Army, on 5 April
1982.  The imposed punishment was a reduction in pay grade to E-2 and 14
days extra duty (7 days extra duty were suspended for 90 days).  The
applicant did not appeal the punishment.
11.  On 23 August 1982, the applicant received non-judicial punishment
under the provisions of Article 15 of the UCMJ, for disobeying a lawfully
given order, an order it was his duty to obey on 3 August 1982.  The
imposed punishment was a reduction in pay grade to E-1 (suspended for 120
days), 14 consecutive days of extra duty, and 14 days restriction to the
company area, mess hall, health clinic, chapel and post exchange.  The
applicant did not appeal the punishment.

12.  The applicant was honorably released from active duty, in the rank and
pay grade of Private, E-2, on 21 January 1983, under the provisions of Army
Regulation 635-200, Chapter 16, paragraph 16-5b, at the expiration of his
term of service.  The separation code applied to the applicant's DD Form
214, Certificate of Release or Discharge from Active Duty, is KGF.  The
narrative reason for his separation, "Locally Imposed Bar to Reenlistment,"
was entered in item 28, of his DD Form 214.  On the date of his release
from active duty, the applicant had completed a total of 5 years 10 months
and 4 days of active Federal service, with no record of time lost.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was reduced for misconduct on 16 May
1982 when he failed to go to his prescribed place of duty on 1 April 1982
and, for wrongfully appropriating a 2 1/2 ton vehicle, the property of the
US Army, on 5 April 1982.

2.  The applicant's contention that he was informed he was being barred
from reenlistment while he was outprocessing is not supported by the
evidence.

3.  On 17 February 1982, over 11 months prior to the expiration of his term
of service, the applicant was counseled by his commander about his
intention to bar him from reenlistment.

4.  The evidence shows the Bar to Reenlistment Certificate was introduced
into command channels on 4 March 1982 and was approved on 5 March.  The
evidence further shows the applicant acknowledge the bar to reenlistment
on 5 March 1982.  The applicant did not complete the terms of his
reenlistment contract until 21 January 1983, approximately 10 and a half
months after the bar to reenlistment was imposed.
5.  The applicant's contentions that he never had a chance to appeal the
actions imposed or understood the future consequences are not supported
by the evidence in this case.  Each time non-judicial punishment was
imposed upon him, he was given the opportunity to appeal.  The applicant
elected not to appeal.

6.  When the bar to reenlistment was approved, he was given 15 days in
which to submit an appeal.  The applicant either failed to or elected not
to appeal the bar to reenlistment.

7.  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 failed to
submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the
applicant's request.

9.  Records show the applicant should have discovered the alleged error
or injustice now under consideration on 21 January 1983; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 20 January 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

__RJF___  _E.F.____  _LDS___  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 D. Simmons_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070004696                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070807                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.9213                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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