MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 9 August 2001
         DOCKET NUMBER: AR2001055082


         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. Irene N. Wheelwright		Chairperson
Mr. Fred N. Eichorn		Member
Ms. Gail J. Wire		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 - Applicant's correspondence to various offices
                 
         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS, Waiver of the time in grade requirements so that he can retire in pay grade O-6.

APPLICANT STATES: In effect, that he should have been granted a waiver to retire in pay grade O-6 because a United States Military Academy (USMA) classmate was granted such a waiver. He contends that he was more deserving because his request was motivated by pressing family problems whereas the classmate retired early in order to take a job as a political appointee. He avers that approval of the classmate’s request was due to the Army’s deference to politics. He also believes that he deserves this relief because he had more time in service and time in grade than his classmate. He also had more significant awards and decorations and had spent more time (57 months) in Vietnam than the classmate (13 months).

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

The applicant, a 1961 graduate of the United States Military Academy, was promoted to colonel in November 1983. He retired as a lieutenant colonel, on
31 July 1985, with over 25 years of active duty service. His service and accomplishments are illustrated by his awards which include two awards each of the Legion of Merit, the Bronze Star Medal, the Air Medal, the Meritorious Service Medal, and the Joint Service Commendation Medal. He also received the Defense Meritorious Service Medal, the Army Commendation Medal, the Vietnam Service Medal (with credit for 11 campaigns), the Presidential Unit Citation, the Combat Infantryman Badge and the Ranger Tab.

The applicant initially wrote to the Secretary of the Army, in September 1997 requesting that he be granted a waiver to allow him to retire in pay grade 0-6. His request was forwarded to this Board for action but the applicant was informed that he needed to complete a request to this Board and he was provided with a DD Form 149 (Request for Correction of Military Records

On 8 November 1997, in a letter to the Secretary of the Army, the applicant likened his feelings at the time of his retirement to the feelings he had when a major general, who did not hold a public affairs sub-specialty (as the applicant, himself, did), was appointed Chief of Public Affairs. He thought the Army was adding insult to injury.

In a 9 November 1997 letter to the Chief of Staff, Army Materiel Command he explained that he was responsible for alerting Command Sergeant Major of the Army McKinney’s defense counsel to allegations about McKinney’s accuser. The applicant concluded that there was at least an appearance of obstruction of justice on the part of a colonel who was also involved with and had a conflict of interest in cases involving U.S. Military Academy cadets.

On 16 December 1997, in a letter to the Secretary of the Army, the applicant complained that this Board had taken 9 months to adjudicate his 1982 request and failed to provide him with a definitive answer. He also noted that the Board had taken 37 months to adjudicate his son’s request for readmission to the U.S. Military Academy. Because of this slowness of that process the applicant stated that he had instituted a lawsuit in that matter because of violations of the Uniform Code of Military Justice by active duty and retired officers. He indicated that as of the following week the ABCMR would have had his retirement grade waiver request for 60 days and he thought that a sufficient period.

The applicant wrote to this Board on 15 December 1997 to call attention to the fact that, 9 months before he was promoted to colonel in November 1983, an officer who was in the Military Academy class a year behind was frocked to colonel by the same individual. The Commander in Chief, Southern Command, a major general, was a classmate of the general officer who had been responsible for the delay in the applicant’s promotion to colonel. He pointed this out so that the Board would understand “better the collective nature and extent of the insults and injustices” to which he had been subjected.

In an 8 November 1997 letter to the Secretary of the Army the applicant argued that he should be entitled to a waiver of the time in grade requirement for retirement because the Army had recently waived the absence of Secondary Subspecialty 46-Public Affairs in naming a major general to the post of Chief of Public Affairs.

On 8 November 1998, after considering all of the evidence and arguments this Board determined that the applicant had not provided sufficient justification for granting any relief or excusing the failure to timely file and denied the request for a waiver of time in grade for retirement.

In a 4 September 2000 letter, the applicant again appealed to the Secretary of the Army contending that the Board’s action in considering the request before his DD Form 149 arrived had caused his case irreparable harm in that he had not completed gathering the supporting evidence. The evidence he cited was that the Military Academy classmate who had received a time in grade for retirement waiver to so that he could take a civilian position had actually taken a position as a political appointee, which fact the applicant had not learned until the fall of 1997. He also stated that he had been unable to obtain any documentation concerning the classmate’s case and he therefore concluded that this too proved that there had been favoritism at his expense. The 4 September 2000 correspondence was also referred to this Board where it was accepted as a request for reconsideration and administratively closed because it contained no new evidence or argument.

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An interim case (AR2000047796) was administratively closed. That case was based upon the applicant’s 4 September 2000 letter to the Secretary of the Army. In it the applicant argued that the November 1998 case decision was unfair because he had been informed in a 28 January 1998 letter that he needed to submit an application (DD Form 149). However, the case was referred to an informal panel of the Board and decided before he “had finished gathering the evidence” or submitted the DD Form 149. He also repeated his earlier arguments that the waiver for his classmate was politically motivated and that he was more deserving. He also stated that he had provided new supporting evidence concerning his mother’s 21 to 31 May 1985 hospitalization. The
17 January 2001 letter to the applicant explaining that his request did not warrant reconsideration by the Board inadvertently cited the wrong date. It referred to date of his 1984 OER case.

In his 2 February 2001 letter to the Acting Secretary of the Army, the applicant complained that the staff and the Board had acted wrongfully and had unjustly deprived him of the relief he sought. The applicant requested that the Acting Secretary of the Army to act directly in his case. However, the correspondence was referred here for action. The applicant complained that the ABCMR staff had looked at his 1984 OER case and concluded that the case had already been reconsidered.

On 25 June 2001 the applicant wrote to the Director, ABCMR pointing out that a recent press release and news story concerning the then Secretary of the Army (Designate). The applicant asserted that the information contained in these items confirmed his contention that he had been mistreated because he had been better qualified and more deserving, yet he had not received a waiver of time in grade for retirement. He stated that he had written to that individual for copies of the documentation relative to his career, retirement and any waiver of time in grade for retirement. The applicant indicated that he would provide these documents when received.

Title 10, United States Code § 1370 provides that an officer above the grade of major must serve at 3 three years in grade in order to retire at that grade.
Between 1990 and 1999 the Service Secretary could waive 1 year of that
service after an officer had served 2 years in grade. Otherwise the President may authorize retirement in the higher grade. Although Presidential approval is required the Service Secretaries have disapproval authority.

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

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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.

The regulation 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. In light of the circumstances in the handling of this case this Board considers the previous actions taken to be null and void. This consideration of the case is, therefore, a de novo review of all of the applicant’s submissions.

2. The applicant’s service to the Nation and to the Army is acknowledged, however there is no merit to the contention that he was entitled to a waiver of the time in grade requirement for retirement because a waiver was granted to a contemporary. Such requests, like requests to this Board, are handled on a case by case basis.

3. There is no evidence that the approval of the classmate’s case had any effect on the outcome of the applicant’s request for a waiver of the time in grade requirement for retirement. The contention about the approval of the classmate’s waiver is irrelevant. There is no actual relationship between the two cases. The principle that equal justice does not require identical treatment is as applicable to administrative actions as it is to the law.

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. The applicant indicated, in his 25 June 2001 letter, that he would forward any documentation he received about the case of the then Secretary of the Army (Designate). The applicant may apply for reconsideration at any time and if the

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request is received within one year of the date of the Board’s action on this case, 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 this consideration. After a year the more stringent criteria apply. However, this Board rejects any contention that the outcome of any other waiver case is relevant to the applicant’s case unless it can be demonstrated by convincing evidence that the applicant’s request for a waiver was denied because some other individual’s waiver was approved.

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

__INW__ __FNE___ __GJW__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001055082
SUFFIX
RECON
DATE BOARDED	20010809
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.