MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          24 April 2003                    
	DOCKET NUMBER:  AR2002081305

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor 		Chairperson	
	Ms. Terry L. Placek 		Member	
	Mr. Robert Duecaster		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 showing that he continued on active duty until he reached retirement eligibility.

APPLICANT STATES:  In effect, that under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 6, paragraph 6-5(b), he should have been counseled/advised on his rights as a soldier with more than twenty years.  He also contends that the Physical Evaluation Board Liaison Officer (PEBLO) failed to follow these provisions and was negligent in carrying out those responsibilities.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the consideration of Docket Number AR2001053866 by the Army Board for Correction of Military Records (ABCMR) on 18 October 2001.

On 28 May 2002, a request for reconsideration was reviewed by the ABCMR.  The staff determined that the applicant had not provided any new evidence and his request with closed without action.

The applicant's contentions that under the provisions of Army Regulation 635-40, Chapter 6, paragraph 6-5(b), he should have been counseled/advised on his rights as a soldier with more than twenty years and that the PEBLO failed to follow these provisions and was negligent in carrying out those responsibilities are new argument and will be considered by the Board.

On 15 April 1992, the applicant was honorably discharged with 18 years, 
1 month and 10 days of total active service.

Item 15 on the applicant's Medical Evaluation Board Proceedings, dated 
28 January 1992, states that the patient does not desire to continue on active duty under Army Regulation 635-40.  The applicant authenticated this action on 10 February 1992.

The applicant's service personnel records contain a PEBLO Counseling Checklist/Statement.  Section III (Counseling) on this statement has a check mark next to the entry, "Informed the soldier of criteria and procedures for requesting continuance on active duty or in the Active Reserve."  Section IV (Acknowledgement) shows the applicant acknowledged that he was counseled on the above marked items as they pertained to his disability evaluation on 
24 February 1992.      

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 6 (Continuance of Disabled Personnel on Active Duty), paragraph 6-5(b) (Soldiers with 18 years) states that when a soldier with 
18 years but less than 20 years of active service is referred to a Physical Evaluation Board for further processing and elects not to submit a request for continuation on active duty, such election will be in writing and attached to the Medical Evaluation Board proceeding.  If the soldier does not indicate in writing his or her desire not to request continuation on active duty, the PEBLO will include a signed certificate stating that the soldier has been counseled and elects not to submit an election in writing. 

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a 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 (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Army Regulation 15-185 provides further guidance for reconsideration requests that are received more than 1 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 Board considered the applicant's contention that he should have been counseled/advised on his rights as a soldier with more than twenty years.  However, the applicant was honorably discharged with 18 years, 1 month and 
10 days of total active service, not more than twenty years.
  
2.  The evidence of record does not support the applicant's contention that under the provisions of Army Regulation 635-40, Chapter 6, paragraph 6-5(b), the PEBLO failed to follow these provisions and was negligent in carrying out those responsibilities.

3.  Item 15 on the applicant's Medical Evaluation Board Proceedings, dated 
28 January 1992, states that the patient does not desire to continue on active duty under Army Regulation 635-40.  The applicant authenticated this action on 10 February 1992.  
4.  Evidence of record also shows the applicant acknowledged that he was counseled on the criteria and procedures for requesting continuance on active duty by his PEBLO on 24 February 1992.

5.  After review of all the evidence in this case and the latest arguments, the Board determined that the applicant has presented no argument or evidence which is sufficient to reverse the previous decision rendered by the ABCMR in AR2001053866 on 18 October 2001.

6.  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.

7.  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

RVO____  TLP____  RD______  DENY APPLICATION

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

INDEX

CASE ID	AR2002081305	
SUFFIX		
RECON	Yes	
DATE BOARDED	20030424	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.0100	
2.		
3.		
4.		
5.		
6.