RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 February 2005
      DOCKET NUMBER:  AR20040000721


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 that his bad conduct discharge (BCD) be upgraded
to that of an honorable discharge and that records pertaining to his court-
martial conviction be expunged.

2.  The applicant, a pharmacy specialist, states that he suffered from
plantar fasciitis (heel spurs).  He adds that he was in excruciating pain
because of a cast that was "erroneously [improperly] applied" to his right
leg and foot.  He was prescribed Tylox [oxycodone and acetaminophen], a
controlled substance, for his pain.  However, he took 13 capsules of Tylox
from the pharmacy without a prescription and he was caught and court-
martialed.

3.  The applicant states that his medical condition, which was the cause of
his actions, was never taken into consideration at trial.  Therefore, the
issue of duress was never entertained.  He states he served 6 months in
confinement and was released early for good behavior and he did not go
through the appeals process to which he was entitled.  He adds that he
graduated from a foreign medical school and he wanted to do his residency
training as a medical officer, instead he enlisted as a pharmacy
technician.  He believes his punishment has served its intentions. He has
demonstrated remorse for his actions and the ability to conform to the
guidelines and parameters that society deems appropriate.  He has been a
law-abiding citizen and an upgrade of his discharge would assist him in
pursuing his medical career.

4.  The applicant provides:

      a.  DD Form 214 (Certificate of Release or Discharge from Active
Duty), issued 11 October 1988.

      b.  Resume.

      c.  Certification and transcripts from the University Autonoma De
Tamaulipas School of Medicine showing completion of various courses.

      d.  Court-Martial Proceedings and supporting documents.

      e.  Criminal History Records Search document from Louisville,
Kentucky, dated 24 May 2000; from Corpus Christi, Texas, dated 7 June 2000;
and from San Antonio (Texas) Police Department, 16 June 2000, showing no
history of arrests or local outstanding warrants.

      f.  Military medical documents, dated between September 1986 and
6 January 1988, which show he complained of chronic pain in the right foot.
 He was diagnosed with plantar fasciitis and he was treated with pain
medication, to include Tylox.  On 25 November 1986, a recommendation was
made to remove a cast from his body.  There is no evidence that it was
improperly applied.

      g.  Personal reference statements written by Texas State officials,
several county judges, his sister, an employer, and a number of individuals
working in the medical field.  The statements describe the applicant as
being dedicated, caring, efficient, honest, extremely conscientious,
dependable, well-liked, and that he demonstrates high moral values.

      h.  Several letters written by the applicant to various organizations
requesting assistance in upgrading his discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 October 1988.  The application submitted in this case is
dated 15 April 2004.

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 available evidence shows that prior to enlisting in the military,
the applicant attended medical school at the Universidad Autonoma De
Tamaulipas, Matamoros, Mexico from 1979 to 1983, graduating as a surgeon in
December 1983.

4.  On 21 May 1985, the applicant enlisted in the Regular Army for 4 years,
training in military occupational specialty (MOS) 91Q (Pharmacy Specialist)
and in pay grade E-3.  Following completion of all required military
training, he was awarded MOS 91Q.  On 21 September 1985, he was advanced to
pay grade
E-4.  On 28 January 1986, he was assigned to Fort Sill, Oklahoma with duty
in his MOS.

5.  On an unknown date during a routine unit drug test, the applicant
tested positive for THC (tetrahydrocannabinol), the active ingredient in
marijuana.  He received nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice, for wrongful use of marijuana.  The NJP
proceedings are no longer contained in the available record, but the
applicant was reduced on 23 April 1986 from E-4 to E-3 as punishment.

6.  On 10 August 1986, the applicant was stopped by law enforcement
officers for transporting an open container [of alcohol] in his vehicle.
Given a breathalyzer test, he registered a reading of 0.12 and was charged
with driving while intoxicated (DWI).  On 2 September 1986, a civilian
court convicted the applicant of DWI and, on 4 November 1986, he received a
general officer letter of reprimand for this offense.

7.  On 15 August 1986, a bar to reenlistment was initiated against the
applicant.  Cited as the bases for the bar to reenlistment were the
applicant's receipt of NJP (nonjudicial punishment) for wrongful use of
marijuana and his arrest for driving while intoxicated (DWI) on 10 August
1986.  It was noted that the applicant's offenses raised serious questions
about his judgment, his involvement with alcohol and drugs, and his
suitability for continued service.

8.  The applicant's medical records show a long-standing problem with foot
pain caused by plantar faciitis.  Various medical approaches were employed
to deal with the problem, including orthotics, soft and hard casts,
injections, and pain medication (Tylox).  On 9 December 1986, the applicant
was evaluated for drug dependency.  He admitted that between July and
December 1986, he had obtained prescriptions for Tylox from the Emergency
Room and from a podiatrist. He also admitted that he had taken
approximately 35 to 40 Tylox capsules without a prescription while working
the pharmacy.  The examining physician determined the applicant had abused
Tylox, but he doubted physical dependency.

9.  Court-martial charges were preferred against the applicant for larceny
and wrongful use of Tylox – a  controlled substance – and disobeying a
lawful command.  The applicant entered into a pretrial agreement and pled
guilty to the offenses of larceny and wrongful use of a controlled
substance.  On 5 March 1987, he was convicted by a general court-martial of
larceny, wrongful use of a controlled substance, and of disobeying a lawful
order.  He was sentenced to confinement for 12 months, a forfeiture of
$400.00 pay per month for 12 months, a BCD, and reduction to pay grade E-1.

10.  On 17 April 1987, the sentence was approved, except for that portion
of the sentence that pertained to the execution of a BCD.  He was
transferred to the US Army Correctional Activity, Fort Riley, Kansas.

11.  On 14 July 1987, the applicant was released from confinement and
placed on excess leave pending completion of the appellate review process.

12.  On 17 November 1987, the United States (US) Army Court of Military
Review affirmed only that portion of the sentence that provided for
confinement for 6 months, a forfeiture of $400.00 pay per months for 6
months, reduction to pay grade E-1 and separation with a BCD.  The
appropriate authority ordered the BCD to be duly executed.

13.  On 19 November 1987, the US Army Legal Services Agency, Falls Church,
Virginia advised the applicant of the above decision, his right to petition
the US Court of Military Appeals for a grant of review, and of the process
used for petition.  The available evidence does not show the applicant ever
petitioned the Court of Military Appeals for grant of review.

14.  On 11 October 1988, the applicant was discharged in absentia under the
provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of
conviction by a special court-martial.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) shows that he completed 3 years and
10 days of active military service and he had approximately 131 days of
lost time due to being in military confinement.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that
a Soldier will be given a BCD pursuant only to an approved sentence of a
general or special court-martial.  The appellate review must be completed
and the affirmed sentence ordered duly executed.

16.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, Section
1552, the authority under which this Board acts, the ABCMR is empowered to
change the severity of the sentence imposed in the court-martial process
only if clemency is determined to be appropriate.  Clemency is an act of
mercy, or instance of leniency, to moderate the severity of the punishment
imposed.
17.  The applicant's letters of support from judges, politicians, medical
professionals, friends and relatives all speak highly of his character,
integrity and professionalism.  Some point out that he has paid dearly for
one mistake made more than 20 years ago and argue that he has been
sufficiently punished and is now worthy of clemency.

18.  The Appellate Defense Counsel raised the issue of duress and
motivation for committing the offenses in pleading before the US Army Court
of Military Review. Presumably that court considered the issues before
affirming the conviction and reassessing the sentence.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

2.  The applicant's training demonstrates a vast knowledge of the proper
handling of controlled substances and that he also understood the laws and
penalties associated with abusing or mishandling controlled substances.

3.  The applicant's post-service conduct, while admirable, is not
sufficient to warrant clemency in this case.  He knowingly abused alcohol
and drugs and willingly violated a trust placed in him as a pharmacist
specialist.

4.  The Military Justice Act of 1983 (Public Law 98-209), provides, in
pertinent part, that military correction boards may not disturb the
finality of a conviction by court-martial.  The Board cannot expunge the
applicant's conviction from his record.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 October 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
10 October 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JLP___  __TAP___  __KWL___  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.



                                  Jennifer L. Prater
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000721                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19881011                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 3                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

"Plantar fasciitis is commonly known as "heel spur."  Plantar fasciitis is
an inflammation of the plantar fascia. "Plantar" means the bottom of the
foot, "fascia" is a type of connective tissue, and "itis" means
"inflammation".  Heel spurs are soft, bendable deposits of calcium that are
the result of tension and inflammation in the plantar fascia attachment to
the heel.  Heel spurs do not cause pain.  They are only evidence (not
proof) that a patient may have plantar fasciitis.  The plantar fascia
encapsulates muscles in the sole of the foot.  It supports the arch of the
foot by acting as a bowstring to connect the ball of the foot to the heel.
The condition is usually caused by a change or increase in activities, no
arch support, lack of flexibility in the calf muscles, being overweight, a
sudden injury, using shoes with little cushion on hard surfaces, using
shoes that do not easily bend under the ball of the foot, or spending too
much time on the feet.

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