| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn, Jr. | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Mr. Lester Echols | Member | |
| Mr. Thomas Lanyi | Member |
APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by expunging the proceedings and outcome of the administrative discharge board and allowing him to re-enlist. He also requests to appear before the Board.
APPLICANT STATES: In effect, that his assignment from Headquarters and Headquarters Battery (HHB), 3rd Battalion, 44th Air Defense Artillery (3/44th ADA) to A Battery 3/44th ADA was contrary to Army Regulations 614-30, 614-6,
and 600-8-105. He states, in effect, that in accordance with those regulations the transfer was improper because the two units were not in the same location, that he should not have been transferred on verbal orders because an expenditure of funds was required but had not been authorized and that, when the written orders were issued, they were not properly prepared or authenticated. He contends that, if he had not been improperly transferred, he would not have been subject to the command directed urinalysis, the nonjudicial punishment, or the elimination action. He also contends that the separation action was improper because he was not offered rehabilitation. He cites and interprets various provisions of the various regulations to substantiate his case.
COUNSEL CONTENDS: Counsel offers no evidence or argument beyond that submitted with the application.
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 (AR2000037249) on 7 September 2000.
The applicant’s submissions are new evidence and argument 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 argument that the reassignment was improper because the two batteries were in different locations ignores the fact that it occurred within the same activity.
2. There is no evidence that the verbal reassignment order was invalid because an expenditure of funds was required. The Board notes that the applicant has not presented a disapproved request for reimbursement of travel expenses.
3. Notwithstanding the applicant’s interpretations of the various regulations, a battalion commander has the authority to assign personnel within the battalion to meet the requirements of the organization. Any administrative irregularities in the publication of the reassignment orders did not undermine the inherent authority or the validity of the battalion commander’s movement of the applicant between two of his batteries.
4. In cases where immediate separation from the service is appropriate, rehabilitation is not applicable. Additionally, the regulatory requirement to initiate elimination proceedings in response to the first instance of noncommissioned officer drug abuse obviates the need to address rehabilitation as a first step.
5. 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 15,000 applications each year, but normally grants fewer than fifteen formal hearings a year. Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information. This case does not meet those criteria.
6. 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.
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
__FNE__ __LE ___ __TL ___ DENY APPLICATION
Carl W. S. Chun
| CASE ID | AR2001058393 |
| SUFFIX | |
| RECON | This applies only to ADRB |
| DATE BOARDED | 20020328 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | |
| REVIEW AUTHORITY | |
| ISSUES 1. | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2002 | 2002079682C070215
MEMORANDUM OF CONSIDERATION IN THE CASE OF: BOARD DATE: 19 June 2003 DOCKET NUMBER: AR2002079682 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. The applicant requests correction of military records as stated in the application to the Board and as restated herein.
ARMY | BCMR | CY2014 | 20140020771
The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: * Item 13 (Awards, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) two awards of the Army Achievement Medal and the Overseas Service Ribbon * Item 14 (Military Education) completion of German Headstart and the Air Defense Artillery (ADA) Short Range Gunnery Crewman Course 2. The applicant provides his DD Form 214, two certificates showing...
ARMY | BCMR | CY2001 | 2001055233C070420
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. The applicant requests correction of military records as stated in the application to the Board and as restated herein. 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:
ARMY | BCMR | CY2001 | 2001060330C070421
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...
ARMY | BCMR | CY2001 | 2001059455C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. APPLICANT REQUESTS : Reconsideration of his earlier appeal to correct his military records by awarding him the Purple Heart. The staff of the Board is authorized to determine whether or not such evidence has been submitted.
ARMY | BCMR | CY2002 | 2002083064C070215
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. There is no evidence in the...
ARMY | BCMR | CY2001 | 2001055119C070420
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. 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: However, neither the applicant’s explanation nor the doctor’s opinion overcomes the fact that there is no record of treatment for the hand...
ARMY | BCMR | CY2002 | 2002067082C070402
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The applicant’s submissions are new evidence that require Board consideration. U.S Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal (AM).
ARMY | BCMR | CY2014 | 20140009957
IN THE CASE OF: BOARD DATE: 25 June 2014 DOCKET NUMBER: AR20140009957 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Counsel requests reconsideration of his earlier request for correction of the applicant's military records by granting him a special selection board (SSB) or, in the alternative, changing his date of promotion to major (MAJ) to 10 September 2007. The guidance addressing individuals who are not eligible for transfer to the ING is stated in paragraph 4-3(a) as "officers who...
ARMY | BCMR | CY2001 | 2001061424C070421
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: The statement attributed to MSG M____ relates various personnel problems with individuals within the company and with the company commander but it does not directly provide any information that mitigates the applicant's behavior. However, they are not supported by either evidence submitted with the...