RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 March 2004
      DOCKET NUMBER:   AR2003091394


      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             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Roger W. Able                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Robert J. Osborn, II          |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 discharge Under Other Than Honorable
Conditions (UOTHC) be upgraded to a general discharge.

2.  The applicant states by listing Army Discharge Review Board issue
numbers, that he was not a drug and alcohol rehabilitation failure, and
that he would like his record of court-martial convictions, his record of
convictions by civil authorities while he was in the Army, and his
application for compassionate reassignment to be taken into consideration
in determining whether his discharge should be upgraded.

3.  The applicant does not provide any documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 23 February 1988.  The application submitted in this case is dated 15
May 2003.

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 limitation 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 Regular Army on 5 February 1986 in pay
grade E-3.  He was awarded the military occupational specialty of medical
specialist.

4.  While on active duty, the applicant was counseled in writing on four
occasions for:  his involvement in a disturbance in the billets; leaving
his weapon unsecured and unguarded during a field training exercise;
violation of barracks visitation policy by having a woman in his room; and
failing to report to morning formation.

5.  While on active duty, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniformed Code of Military Justice, on three
occasions for:  violation of barracks visitation policy by having a woman
in his room; incapacitation to perform his duties due to prior indulgence
in intoxicating liquor or drugs; and possession of cocaine.

6.  On 29 June 1987, the applicant’s commander notified him of his intent
to recommend that he be barred from reenlistment.  The reasons for the bar
were his three NJP’s, disobeying a lawful order, missing formation, and
failing to report to required drug and alcohol counseling sessions.  The
applicant submitted a letter in his own behalf.  In that letter, the
applicant stated that contrary to what his record of offenses would
indicate, he did care about the Army.  He enlisted to provide a means to
finish school so he would have a better future.  He continued that he was
told that if a soldier needed help, to ask for it.  He continued that he
had cried for help, but nobody had heard him.  He then looked for help by
trying to escape from the pain.  He argued that he knew his job and could
get the job done.  He concluded that he did not want to leave the Army and
asked for a chance to prove himself.

7.  The bar to reenlistment was approved by the appropriate authority.

8.  On 27 August 1987, the applicant was tried by a summary court-martial
for using cocaine, for failing to go to his appointed place of duty, and
for being disorderly.  However, he was only found guilty of using cocaine.
His sentence consisted of a forfeiture of $250.00 and 30 days confinement.

9.  In October 1987, the applicant’s commander notified him of his intent
to recommend his discharge due to misconduct consisting of discreditable
involvement with civil or military authorities and conduct prejudicial to
good order and discipline.  The applicant was provided with the rights
inherent with such a recommendation.

10.  The applicant submitted a conditional waiver, wherein he agreed to
waive his right to an elimination board in exchange for a general
discharge.  The applicant’s chain of command all recommended disapproval of
the applicant’s request.  The convening authority disapproved the request
and directed that a board of officers be convened.

11.  On 25 January 1988, a board of officers convened to determine whether
the applicant should be discharged or retained, and if discharged, what
characterization of service he should receive.  The board of officers found
“That a clear pattern of continued misconduct has been established.”  The
board of officers recommended that the applicant be separated with an UOTHC
discharge.

12.  The applicant appealed the board of officer’s findings and
recommendation, stating that he believed that the presence of his former
first sergeant and drug and alcohol counselor would have made a big
difference in the board of officer’s decision.  He argued that those two
individuals had knowledge of his problems and the positive progress he had
been making.

13.  After considering the applicant’s appeal, the convening authority
approved the board of officer’s findings and recommendation, waived further
rehabilitation and counseling, and directed that the applicant be separated
with an UOTHC discharge.

14.  Accordingly, on 23 February 1988, the applicant was separated with an
UOTHC discharge for a pattern of misconduct.  He had 1 year, 11 months and
28 days of creditable service, and 20 days of lost time.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  Paragraph 1-18d of this
regulation provides for waiving rehabilitative transfer when a
determination is made that further duty of the soldier would (1)  Create
serious disciplinary problems or a hazard to the military mission or to the
soldier, or (2)  Be inappropriate because the soldier is resisting
rehabilitation attempts, or (3) Rehabilitation would not be in the best
interests of the Army as it would not produce a quality soldier.  Paragraph
1-18 of that regulation specifies that soldier’s being considered for
separation under the provisions of chapters 13, 14 and 15 are entitled to
have a board of officers consider their cases unless that right is waived.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows that he was afforded due process
throughout his military career, and that he exercised his right to submit
matters in his own behalf, to submit a conditional waiver, to have a board
of officers consider his case, and to submit an appeal of his board of
officer’s findings and recommendation.

2.  The applicant’s record of four written counseling’s, three NJP’s and
one summary court-martial conviction certainly establishes sufficient
grounds to find that the applicant had a pattern of misconduct.

3.  While the applicant’s statements during his period of active Federal
service clearly indicate that he had the desire to complete his enlistment,
his records show that he continued to commit acts of misconduct.  The
record shows that the applicant’s commander imposed progressively harsher
punishment on the applicant.  This punishment did not deter the applicant’s
misconduct.  It was only when the commander’s punishment proved ineffective
did he initiate action to eliminate the applicant.

4.  Without evidence of a violation of law or regulation, or evidence of
post-service conduct which is so meritorious as to mitigate his conduct
which on active duty, there is no basis in which to recommend upgrading the
applicant’s properly issued discharge.

5.  The applicant’s statement that he was not a drug and alcohol
rehabilitation failure is confusing, since he was not separated for that
reason.  There is no record that the applicant was convicted by civil
authorities while he was on active duty.  Also, there is no record that he
applied for compassionate reassignment.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 February 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 February 1991.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds_____  ___rjo___  ___rwa_  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.




            __________Roger W. Able________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003091394                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040318                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |