MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 29 August 2002
         DOCKET NUMBER: AR2002070827


         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:

Ms. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Harry B. Oberg		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 her earlier appeal to correct her military records by restoring her pay grade to E-4 and resolution of wrongs imposed by a special court-martial. She also requests award of the “Distinguished Graduate Service Medal”, the “Outstanding Physical Education Medal” and the “Platoon Leader Medal”, which are new issues.

APPLICANT STATES: The applicant again addressed issues concerning the special court-martial membership, court documents, and court procedures.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the Proceedings prepared to reflect the consideration of Docket Number AR1999016700 by the Army Board for Correction of Military Records (ABCMR) on 15 July 1999.

In the applicant's original application to the ABCMR, she requested dismissal of her discharge, reinstatement to active duty, restoration to pay grade E-4 and resolution of wrongs imposed by her commanding officer. These issues were considered and partial relief was granted by the ABCMR in Docket Number AR1999016700 on 15 July 1999. The relief granted was reimbursement for personal expenses incurred in the shipping of her privately owned vehicle and household goods, but did not include any relief related to the court-martial proceedings, reinstatement, or restoration.

On 14 June 2001, the staff of the ABCMR reviewed the applicant's 1 January 2001 request for reconsideration of the matters pertaining to the punishment imposed by a special court-martial which included forfeiture, confinement and reduction to pay grade E-1. In this portion of her request, she essentially contested the conduct of the court-martial and requested restoration to pay grade E-4. The staff determined that she had not provided any new evidence in regard to the court-martial proceeding and her request for reconsideration was closed without further action. The applicant was also advised that her issues concerning the special court-martial membership, court documents, and court procedures were matters which could be considered in appeal of her court-martial, but that the ABCMR, by law, cannot disturb the finality of a court-martial.

In the applicant's 1 January 2001 request for reconsideration, she also raised the issue of entitlement to some unspecified awards. The staff of the ABCMR advised that the portion of her request for awards could not be considered since they were not identified and there was no supporting justification submitted.

In her current application, the applicant again requests reconsideration of matters pertaining to her special court-martial. The applicant submitted documentation pertaining to her special court-martial proceedings as follows: retirement orders of a colonel, dated 30 October 1992; Special Court-Martial Order Number 4, dated 31 March 1993; a memorandum, dated 31 March 1993, wherein the convening authority denies the applicant’s request for a post-trial session to correct alleged errors and deficiencies in her record of trial; a memorandum, dated 17 March 1993, which responds to the applicant’s request for a post trial session; a Request for Production of Additional Witnesses, dated 13 January 1993; an undated attachment action; a request for military counsel, dated 28 October 1992; an undated Request for Delay; page 2 of the court-martial proceedings; page 55 of Army Regulation 635-200; and a “Corrected Copy” of Court-Martial Convening Order Number 11, dated 18 August 1992.

These documents are the same documents discussed in the applicant's 1 January 2001 request for reconsideration. As a result, there is no basis for the ABCMR to further consider requests by the applicant regarding the punishment imposed or the alleged errors in the proceedings of her special court-martial. Therefore, this portion of the applicant's request is not discussed further in this Memorandum of Consideration because the applicant has not submitted substantial newly discovered relevant evidence or relevant evidence which shows fraud, mistake in law, mathematical miscalculation, manifest error.

In her current request, the applicant identified three specific awards to which she believes she is entitled, specifically the “Distinguished Graduate Service Medal”, the “Outstanding Physical Education Medal” and the “Platoon Leader Medal.” Her request for these awards is a new issue which will be considered by the Board.

The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show the “Distinguished Graduate Service Medal”, the “Outstanding Physical Education Medal” or the “Platoon Leader Medal” as authorized awards.

Army Regulation 600-8-22 (Military Awards) does not show the “Distinguished Graduate Service Medal”, the “Outstanding Physical Education Medal” or the “Platoon Leader Medal” as authorized awards.

Army Regulation 15-185 (Army Board for Correction of Military Records) 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.
Army Regulation 15-185 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 regulation governing Army awards does not show the “Distinguished Graduate Service Medal”, the “Outstanding Physical Education Medal” or the “Platoon Leader Medal” as authorized awards. Therefore, there is no authority for granting the applicant’s request for these medals.

2. 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 either requirement.

3. 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____ CJP_____ HBO_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002070827
SUFFIX
RECON	Yes
DATE BOARDED	20020829
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	106.0010
2.	107.0000
3.
4.
5.
6.