RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            3 June 2004
      DOCKET NUMBER:   AR2003091491


      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             |
|     |Ms. Carolyn Wade                  |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Luther L. Santiful            |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 DA Form 1059 (Service School Academic
Evaluation Report) for the period 7 April 1998 – 16 June 1998 be amended to
show that he satisfactorily completed Unit Supply Specialist Basic NCO
(Noncommissioned Officers) Course (BNCOC) Class 5-98.

2.  The applicant states that he attended BNCOC from 6 April 1998 to 16
June 1998 and that he was administratively relieved from the course 4 days
prior to completion.  He states that his dismissal was due to an alleged
offense of driving under the influence (DUI) of alcohol.  He states that as
it is with most NCO Education System (NCOES) schools, when an infraction
occurs, the school automatically removes the Soldier from the course.  He
states there was no hearing and he was assumed to be guilty of whatever
rules the school decided to use as grounds for dismissal.  He states, in
effect, that he unknowingly cooperated with the school without benefit of
counsel and was dismissed from BNCOC.  He states that on the day of his
dismissal, he was falsely accused of an alleged DUI and that the school
failed to produce any authoritative documents supporting the allegation.
He states that he was dismissed based on pure speculations, hearsay, and
gossip.  He states, in conclusion, that the authoritative documents from
the Virginia Department of Motor Vehicles and the Texas Department of
Public Safety show no DUI occurred in either state and that the school
failed to provide any concrete evidence to justify his dismissal from the
course.

3.  The applicant provides a copy of Orders Number 084-252, State of Texas,
Adjutant General's Department, dated 25 March 1998 temporarily assigning
the applicant to Fort Lee, Virginia for Unit Supply Specialist BNCOC.

4.  The applicant provides a copy of DA Form 1059, dated 11 June 1998.

5.  The applicant provides a copy of his driving record transcript from the
Virginia Department of Motor Vehicles reflecting a history of his driving
record in the State of Virginia.

6.  The applicant provides a copy of his driving record transcript from the
Texas Department of Public Safety, Driver Records Bureau, dated 3 February
2003, reflecting a history of the applicant's driving and absent any
alcoholic beverage offenses or related suspensions under the alcohol
beverage code.

7.  The applicant provides a copy of DA Form 705 (Army Physical Fitness
Test Scorecard), dated 7 April 1998, which shows he was a "no go," or
failure for test one.

8.  The applicant provides a copy of Fort Lee Form 352 (Periodic Leadership
Development Counseling Record) for the period 6 April 1998 to 6 May 1998
addressing his performance and conduct.

9.  The applicant provides a copy of a memorandum for record, dated 24
October 2000, from the primary BNCOC small group leader (SGL) attesting to
his character and that he had completed all of the required course work.

10.  The applicant provides a copy of an amendment to Orders Number 084-
252, State of Texas, Adjutant General's Department, dated 25 March 1998,
advising him of his dismissal from BNCOC and officially ending his TDY
assignment on 12 June 1998.

11.  The applicant provides a copy of a document from the Henrico County
Court, Richmond, Virginia, certifying that the document to which this
authentication is affixed is a true copy of a record in the Henrico
District Court.

12.  The applicant provides a front and back copy of a Warrant of Arrest
Misdemeanor (State), Commonwealth of Virginia for unlawfully violating
Section 18.2-266, Code of Virginia, dated 17 May 1998 by DUI.

13.  The applicant provides a copy of a $430.00 money order receipt made
payable to the Henrico General District Court and a certified mail receipt.

14.  The applicant provides a copy of a Certificate of Completion from the
State of Texas Drug and Alcohol Driving Awareness Program, dated 17 April
1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 10 June 1998.  The application submitted in this case is dated
9 June 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’s military records show he enlisted in the Texas Army
National Guard and as a Reserve of the Army on 26 July 1984 for period of 6
years.  The
applicant was ordered to 15 weeks of individual active duty for training
(IADT) at Fort Benning, Georgia.  Following completion of all required
military training, the applicant was awarded military occupational
specialty (MOS) 11B (Infantryman) and was returned to his unit.  The
applicant has progressed through the ranks and continues to serve through a
series of continuous extensions.

4.  On 25 March 1998, the applicant was ordered to active duty for a TDY
assignment at Fort Lee to attend BNCOC from 6 April to 16 June 1998.

5.  On 17 May 1998, the applicant was arrested for violating Section 18.2-
266, Code of Virginia, by driving under the influence of alcohol.  He was
subsequently tried and found guilty by a judge only.  It appears that his
DUI of alcohol charge was plea-bargained to a charge of reckless driving.
He was fined $430.00 and told to attend a safe driving program.

6.  On 7 June 1998, the applicant's classmates submitted a memorandum to
the Commandant, NCO Academy requesting an exception to policy on his
behalf.  They indicated that the applicant was recently involved in an
altercation involving drinking and driving.  They also indicated that they
understood the policy of the NCO Academy, but were requesting that the
applicant receive his DA Form 1059 through the mail.

7.  On 11 June 1998, the applicant received a Service School Academic
Evaluation Report (AER) indicating that he was administratively relieved
from the BNCOC for disciplinary reasons.  It stated that the applicant had
violated Article 111 of the Uniform Code of Military Justice.  The AER
indicates that the applicant was an outstanding student, but his behavior
outside of the classroom was unbecoming of a noncommissioned officer (NCO).
 The AER also indicates that the applicant was relieved from BNCOC for DUI
and failing to obey an order/regulation.

8.  On 11 June 1998, the applicant was provided a copy of DA Form 1059.
Also on 11 June 1998, a memorandum was prepared for the applicant informing
him that his AER was a referred report and as such he was required to
acknowledge receipt of it.  He was advised that he could make a
comment/statement if he believed that the rating or remarks were incorrect.
 The applicant was also advised that the appeal procedures were outlined in
paragraph 1-15, Army Regulation 623-1.  It appears that the applicant did
not receive the memorandum before departing Fort Lee and it was forwarded
to the applicant.  As of 10 September 1998, acknowledgement had not been
received.

9.  On 9 June 2003, the applicant submitted an application to the Army
Board for Corrections of Military Records (ABCMR) requesting amendment to
DA Form 1059 to reflect that he satisfactorily completed BNCOC 98-05.

10.  On 17 July 2003, in the processing of this case, a staff advisory
opinion was requested from the Chief, Army National Guard Bureau (NGB).  On
15 August 2003, the NGB returned the request without action because of a
lack of information regarding the procedures that were or were not followed
in accordance with Army Regulation 350-1 (Army Training and Education).
Although the NGB did not provide an advisory opinion, it suggested that the
applicant resubmit his application with supporting documentation showing he
met all the academic requirements to complete BNCOC and what evidence, if
any, the school had that he was under investigation for DUI.  The NGB also
suggested that if the new documentation was favorable, the ABCMR might want
to consider approving the applicant’s request.

11.  On 15 August 2003, the applicant was provided a copy of the NGB’s
response to the request for an advisory opinion.  On 22 September 2003, the
applicant provided two additional documents in support of his rebuttal.  He
provided Fort Lee Form 352, dated August 1993 and a document authenticating
his driving record in the State of Virginia from the Virginia Department of
Motor Vehicles.  The applicant also repeated his request that his issue be
reevaluated and that a judgment be made to amend the DA Form 1059
reflecting he completed the course in a satisfactory manner.

12.  The evidence of record indicates the NCO Academy’s knowledge of the
applicant’s DUI came from the applicant informing them of the DUI incident.


13.  On 18 May 2004, the ABCMR provided the applicant a copy of information
obtained from the Henrico County General District Court and the Federal
Bureau of Investigation to make comments.  The ABCMR also requested missing
documents referenced in an attachment.  On 25 May 2004, the applicant
provided the documents, but did not make any comments.

14.  Army Regulation 350-1 prescribes policies, procedures, and
responsibilities for developing, managing, and conducting Army training and
education programs.  Paragraph 3-18 of this regulation states that under
certain conditions, students may be dismissed from courses before course
completion.  However, to protect students from unfair, illegal, or
prejudicial practices, school commandants and commanders will publish
policies and establish procedures to determine if students should be
dismissed from training.

15.  Paragraph 3-18 further states that students may be considered for
dismissal from courses when their personal conduct is such that continuance
in the course is not appropriate (for example, if a student violates
regulations, policies, or established discipline standards).  No formal
adjudication of guilt by a military or civilian court or by a commander
under Article 15 of the Uniform Code of Military Justice (UCMJ) is
necessary to support dismissal under this paragraph.


16.  Paragraph 3-18b(1) states that no formal adjudication of guilt by a
military or civilian court or by the commander under Article 15 of the UCMJ
is necessary to support dismissal.

17.  Paragraph 3-18e states the following procedures apply in cases where
dismissal is considered for motivational, disciplinary, or academic
reasons:


      (1) The training supervisor will notify the student in writing of the
proposed action, the basis for the action, the consequences of
disenrollment, and the right to appeal. The supervisor will advise the
student that any appeal must be submitted within 7 duty days after receipt
of the written notification of the dismissal action.  Appeals will be
submitted to the school commandant or commander.


      (2) The student will acknowledge by endorsement within 2-duty days
receipt of the written notification of dismissal action.  The endorsement
must indicate whether or not the student intends to appeal the dismissal
action.  Students who elect to appeal will remain actively enrolled in the
course pending disposition of their appeals.


18.  Paragraph 3-18g states the UCMJ does not apply to ARNG soldiers on
full-time training duty under Title 32, U.S. Code.  Accordingly, school
commandants and commanders will forward an ARNG Soldier's case to the state
Adjutant General for appropriate disposition.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was arrested for DUI on 17
May 1998 and that he was subsequently found guilty of reckless driving and
ordered to pay a $430.00 fine and attend a safe driver program.  That he
was convicted of reckless driving does not alter the basic fact that he was
initially arrested for DUI.

2.  The evidence of record shows the applicant was administratively
relieved from the BNCOC 98-05 on 12 June 1998 for a DUI offense.  The
evidence of record also shows the DUI offense happened approximately 26
days before the applicant was relieved from the BNCOC 98-05.

3.  The evidence of record also shows the applicant was relieved from the
BNCOC 98-05 for violating Article 111 of the UCMJ, and failing to obey an
order/regulation.
4.  The evidence of record shows the applicant exhibited behavior
unbecoming of an NCO during off duty hours.  The applicant’s AER noted that
he displayed a lack of self-discipline resulting in his being dismissed
from the BNCOC for DUI.

5.  The applicant contends that he was not advised of his rights, that he
was not afforded a hearing, and that he was not provided counsel.  The
evidence of record shows two copies of the memorandum informing him that
his AER was a referred report were forwarded to him at his parent unit with
instructions to return a signed copy to the school in the self-addressed
return envelope.  This memorandum advised the applicant of his rights and
the appeals process.  There is no indication the applicant received the
forwarded copy, or if he did, that he returned it to the NCO Academy.

6.  The applicant also contends that the school did not produce any
authoritative documents to support their position of dismissing him for an
alleged DUI.  The evidence of record shows the school’s source of
information for the alleged DUI was the applicant’s self-confession as
noted in the primary SGL memorandum for record, dated 24 October 2000.
Furthermore, AR 350-1 states that no formal adjudication of guilt by a
military or civilian court or by the commander under Article 15 of the UCMJ
is necessary to support dismissal.

7.  The evidence of record shows the applicant submitted driving record
transcripts from the State of Virginia showing no history of DUI as
additional evidence and a copy of Periodic Leadership Development
Counseling Record for the period 6 April to 5 May 1998, but he did not
submit any documentation from the NCO Academy supporting his contention
that he met all of the academic requirements to complete BNCOC.

8.  The applicant has not provided sufficient evidence to support his
contention or overcome the presumption of regularity that the NCO Academy
acted in a proper and equitable manner when the applicant was
administratively removed from the BNCOC Class 5-98.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 June 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 10 June 2001.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



                 Luther L. Santiful
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003091491                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040603                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |111.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |