ABCMR Memorandum of                                                               AC
Consideration (cont)

ABCMR Memorandum of 	AR2002075746
Consideration (cont.)

MEMORANDUM OF CONSIDERATION

           IN THE CASE OF:     

	BOARD DATE:          28 January 2003
	DOCKET NUMBER:  AR2002075746    

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

| Mr. Carl W. S. Chun | | Director
| Mr. W. W. Osborn, Jr. | | Analyst

  The following members, a quorum, were present:

| Ms. Karol A. Kennedy | | Chairperson
| Mr. Melvin H. Meyer | | Member
| Ms. Tracey L. Pinson | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
		 Records

	Exhibit B - Military Personnel Records (including
		 advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to correct his military records by expunging an Officer Evaluation Report (OER) for the period ending 30 April 1997, restoring him to active duty in the Active Guard/Reserve (AGR) program and authorizing back pay, setting aside the two non-selection for promotion to lieutenant colonel, referring him to a special selection board and promoting him, if selected.  He also, in effect, requests a personal appearance before the Board.

APPLICANT STATES:  He takes umbrage with several items he sees as shortcomings in the original Board's write-up of his case.  These include mention of his previous active duty Navy service, and the fact he believed that the commanding general did not have sufficient time to become familiar with his case before denying his request for a waiver to remain in the AGR program.

He states in effect, his superiors wanted to get rid of him by any means possible.  From the time that he supposedly failed two physical fitness tests (PFTs) he believed that there was a conspiracy against him.  He submits, as new evidence, including medical records to show that his chain of command ignored his injuries at that time.

He submits copies of "Hot Sheet" summaries of brigade action due.  He reports that he developed the idea and originated each of these reports.  He offers them to demonstrate that he could, indeed, write well and that he did most of the brigade's work.  He also offers two security manuals to demonstrate his writing skills.  

He submits copies of OERs, awards and commendations he has received subsequent to the subject OER.

The applicant complains that the Board's original Memorandum of Correction (MOC) noted only unfavorable information from his previous OERs and offers several glowing remarks from previous OERs to demonstrate the quality of his earlier service. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2001063738) on 5 March 2002.

Copies of documents relative to the PFT failures, the "Hot Sheets," security manuals and the evidence (OERs, commendations and awards) of his performance subsequent to the Board's original decision are new evidence that requires Board consideration.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The evidence and argument concerning the aborted elimination based upon the applicant's alleged failures of the PFT may convince the applicant that there was a conspiracy against him but they are largely irrelevant to the issue at hand.  Furthermore, if anything the outcome of that incident demonstrates that, in the final outcome, the applicant was treated fairly.

2.  There is no available evidence to show that the applicant either originated the "Hot Sheet" idea or that he authored the security manuals.  Furthermore, these items do nothing to show unfairness or inaccuracy in the comments (as quoted in the original MOC) in the subject OER. 

3.  The applicant's performance subsequent to the subject OER has been noted but it does not demonstrate that the OER was unfair or unjust, nor is there any evidence to show that the subject OER is the only reason he was non-selected for promotion.  Since there is insufficient justification for corrective action on the OER there is insufficient justification for any action on the other requests.

4.  Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing.  The Board receives over 13,000 applications each year, but normally grants only approximately 20 formal hearings a year.  Formal hearings are granted only when the Board 

determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information.  This Board does not consider a formal hearing necessary.

5.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__KAK__  ___MHM_  ___TLP__  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID | AR2002075746
SUFFIX |
RECON |
DATE BOARDED | 20030128
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY | 111.01
ISSUES         1. |
2. |
3. |
4. |
5. |
6. |