MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 May 2003                   
	DOCKET NUMBER:   AR2002077462

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Lawrence Foster 		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:  That his DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected to show that he was discharged in the rank and grade of first lieutenant (1LT, O-2).

APPLICANT STATES:  In effect, that he was promoted just before being discharged.  He states at the time of his out-processing he did not have a copy of his promotion orders.  He requests that his rank be corrected based on information on the U.S. Total Army Personnel Command' Orders D61-13, dated 31 March 1995, and the memorandum on 31 March 1995 showing he was discharged with disability severance pay.

EVIDENCE OF RECORD:  The applicant's military records show that:

The applicant’s originally entered active duty in an enlisted status serving from September 1983 through September 1986.  The applicant attended college and participated in the Reserve Officer Training Corps and received a Reserve commission as second lieutenant on 25 October 1992.  

On 26 September 1994, the applicant received notification that he was to be promoted to 1LT effective 26 October 1994 in accordance with Headquarters, United States Army South Orders 223-40.  A memorandum, dated 25 October 1994, shows that these orders were revoked.

On 25 October 1994, the 15th Signal Battalion commander notified the applicant that he was withdrawing his recommendation for promotion.  The reason he stated was the applicant’s inability or unwillingness to learn from his mistakes and to correct repeatedly cited deficiencies.  The battalion commander noted that the applicant had already been internally transferred on three different occasions in an attempt to find a suitable position for him.

In a 27 October 1994 memorandum, his immediate supervisor noted that, in addition to the eight negative counseling statements for diverse problems and infractions, she based her recommendation to deny his promotion on the following negative factors that all occurred within a three week period: (1) the applicant displayed borderline insubordination during physical training (PT); (2) he was late to a company formation road march and failed to draw a weapon; (3) he did not take legal responsibility in the sale of his automobile and was late for and absent from PT due to selling his vehicle and then not having transportation.  
On 22 November 1994, the applicant was counseled by the battalion adjutant for failure to report for Brigade Staff Duty.  The applicant stated that he knew that he had duty but that he had been ordered to report to the legal office.  The adjutant noted that he had been present when the applicant had been directed to the legal office on the 23rd.  

The applicant submitted a rebuttal, dated 23 November 1994, to this action stating that he believed that the denial of promotion was being made in retribution for his not falsifying a Report of Survey and because he was pending a medical board.  He also stated that he had not been properly counseled as required by regulation.

On 2 December 1994, the acting commander of the 15th Signal Battalion requested that the applicant be retained on active duty for six months and be reconsidered for promotion at a later date.  

On 28 December 1994, the discharge authority approved the denial of promotion and denied his retention on active duty.  He directed that the applicant be discharged not later than 90 days after his notification.  This direction was not completed due to the applicant being retained for completion of his medical evaluation and physical evaluation boards.

On 31 March 1995, a memorandum from the Army Physical Evaluation Board (PED) noted that the recommendation to discharge the applicant with a 20 percent disability evaluation had been approved.  This memorandum listed the applicant as a 1LT.

Orders D61-13, issued by the US Total Army Personnel Command 31 March 1995, directed that the applicant be discharge with disability severance pay effective 27 April 1995.  These orders show the applicant as a 1LT.

The applicant was discharged, on 27 April 1995, due to physical disability.  His DD Form 214 shows he was discharged in the rank of 2LT (O-1) with 5 years, 6 months, and 3 days of active service; and 5 years, 9 months, and 17 days of inactive service.

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 Board finds that the applicant’s promotion to 1LT was suspended in October 1994 and subsequently properly revoked in December 1994.

2.  The fact that the applicant’s discharge orders and his PEB findings show him as a 1LT does not substantiate his contention that he was promoted shortly before his discharge.

3.  The applicant has failed to submit any evidence that he was considered for and promoted to 1LT subsequent to the December 1994 denial of his promotion. 

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.  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

__mkp___  __tsk ___  ___lf_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002077462	
SUFFIX		
RECON		
DATE BOARDED	20020513	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	promotion	
2.		
3.		
4.		
5.		
6.