RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 JULY 2006
      DOCKET NUMBER:   AR20050018162


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Donald Lewy                   |     |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 general discharge be
upgraded to honorable and that he be issued a more favorable Reentry (RE)
Code that will allow him to enlist in the Armed Forces.

2.  The applicant states, in effect, that he was unjustly discharged for a
conviction by civil authorities for driving under the influence (DUI) and
was not afforded an opportunity to correct his actions.  He goes on to
state that other Soldiers are allowed to stay in the military with a DUI
offense on their records; however, he was not afforded the same
opportunity.  He goes on to state that since his discharge he has completed
the Department of Veterans Affairs (VA) Recovery Program and has worked
through his Post-Traumatic Stress Disorder with his VA psychologist.  He
further states that he has been living with the shameful discharge for 11
years and believes that he deserves to have it changed.

3.  The applicant provides a copy of a letter he received from the ADRB
informing him that his next course of action was to apply to this Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 December 1993.  The application submitted in this case is
dated 19 December 2005.

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.  He initially enlisted in the Texas Army National Guard (TXARNG) on 21
July 1989 and was ordered to active duty for training (ADT) on 28 June 1990
to undergo his training.  He completed his training as a combat engineer at
Fort Leonard Wood, Missouri and was released from ADT on 4 October 1990.
He was returned to his TXARNG unit and on 26 November 1990, he was
honorably discharged from the TXARNG to enlist in the Regular Army.

4.  On 27 November 1990, he enlisted in the Regular Army and was
transferred to Germany on 9 December 1990.  He was advanced to the pay
grade of E-3 on 1 August 1991.  During his tour in Germany he deployed and
served in Southwest Asia in support of Operation Desert Shield/Storm for a
period of 5 months before deploying back to Germany.  He departed Germany
on 2 June 1992 and was transferred to Fort Carson, Colorado.

5.  In October 1992, the applicant was counseled regarding his failure of a
record Army Physical Fitness Test (APFT).  In January 1993, he was
counseled regarding a report that he had abused his spouse during the
Christmas Holidays and that a case number had been assigned.  The applicant
asserted that the accusation was false and that it did not occur during the
Christmas Holidays.

6.  During the period of May through July 1993, he was counseled on at
least four occasions for failure to go to his place of duty at the
appointed time.

7.  On 7 July 1993, nonjudicial punishment (NJP) was imposed against the
applicant for two specifications of failure to go to his place of duty.
His punishment consisted of a reduction to the pay grade of E-2 and a
forfeiture of pay (both suspended for 90 days), extra duty and restriction.

8.  On 24 August 1993, the applicant underwent a mental status evaluation
and was deemed mentally responsible.

9.  Although all of the facts and circumstances are not present in the
available records, it appears that he was arrested by civil authorities and
was convicted of driving under the influence.  He was sentenced to 30 days
in the work release program at the El Paso County Jail.

10.  His records show that he was confined by civil authorities during the
periods of 11 June through 16 June 1993 and 2 October through 23 October
1993.

11.  On 29 November 1993, the applicant’s commander notified him that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-200, chapter 14, for misconduct – due to his
conviction by civil authorities.  The applicant was advised that he could
receive a discharge under other than honorable conditions and he was
advised of all of his rights.  He  refused to consult with counsel and
informed the commander that he just wanted the chapter discharge expedited.
 He waived all of his rights and elected not to submit a statement in his
own behalf.

12.  The appropriate authority approved the recommendation for discharge
and directed that he be furnished a General Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on
10 December 1993, under the provisions of Army Regulation 635-200, chapter
14, for misconduct – conviction by civil authorities.  He had served 2
years, 11 months, and 16 days of total active service during his current
enlistment.  He had 35 days of lost time due to civil confinement and he
was issued a RE Code of “3”.

14.  The applicant applied to the Army Discharge Review Board (ADRB) on
18 June 1998 requesting that his discharge be upgraded to honorable based
on the same issues he has asserted to this Board.  The ADRB conducted a
review of his records and determined that his discharge was both proper and
equitable, given the circumstances of his case.  The ADRB denied his appeal
on 2 August 1998. The applicant was subsequently afforded a personal
appearance before the ADRB on 9 April 2003 and when he failed to show for
that hearing, the ADRB informed him that he must apply to this Board for
further relief.

15.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, and conviction by civil authorities.  A discharge under other
than honorable conditions is normally considered appropriate.

16.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment
processing into the Regular Army and the USAR.  Chapter 3 of that
regulation prescribes basic eligibility for prior service applicants for
enlistment.  That chapter includes a list of armed forces RE codes.

17.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.  Certain persons who have received
nonjudicial punishment are so disqualified, as are persons with bars to
reenlistment, and those discharged under the provisions of chapters 5, 9,
10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years
from separation is required before a waiver may be submitted.

18.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the narrative reason and separation code are appropriate
under the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his misconduct and his overall undistinguished record of service.  The
evidence of record clearly shows that he was informed that he could receive
a discharge under other than honorable conditions; however, the approving
authority elected to give him a general discharge instead of accepting the
recommendations of the chain of command to discharge him under other than
honorable conditions.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 August 1998.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 1 August 2001.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

____JV__  ___BE __  ____DL__  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.




                                  _____ James Vick________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018162                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1993/12/10                              |
|DISCHARGE AUTHORITY     |AR 635-200/CH14 . . . . .               |
|DISCHARGE REASON        |CONV BY CIV AUTH                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.144.6100/627/A61.00   |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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