MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002071779

         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:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman, Jr.		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)

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APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his records by showing that he had been authorized various awards.

APPLICANT STATES: That his previous request for reconsideration should have been considered by the Board. He believes that the misspelling of his surname and describing the previously submitted letters as character references rather than as evidence proving his case are material errors. He also points out that DA Form 2-1 (Personnel Qualification Record) and the letter from the Commanding Officer, 350^th Mobile Army Surgical Hospital (MASH) that were submitted with the request for reconsideration were new evidence. He argues that, taken together, these constitute a prima facia [on the face of it] case for the requested relief. He also notes that a copy of his second DD Form 214 (Certificate of Release or Discharge from Active Duty), which was submitted with his request for reconsideration was not in his official records. He claims this proves that his records are incorrect.

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 (AR2000051065) on 5 June 2001.

The submitted DA Form 2-1 and the letter from the Commanding Officer, 350th MASH are new evidence that require(s) Board consideration.

The DA Form 2-1 appears to have been re-typed at the time or after he joined the 350^th MASH. It reports his active duty service assignments up to September 1989 and lists his awards, schools, promotions and all other data as smooth, typed entries. It clearly is not a historical, working document.

The 1 March 1995 memorandum from the commander, 350^th MASH to the Commander, 120^th Army Reserve Command states that the supporting documentation had been previously submitted and that the writer and Unit Administrator have verified all items on the applicant's DA Form 2-1. It demands that the applicant's record be corrected. However, it does not identify the corrections requested.

A letter by a retired Regular Army sergeant first class to the Department of Veterans Affairs (VA) states that the writer knew the applicant before Operation Desert Storm and saw him occasionally during that operation. He reports that the applicant was supposed to have been awarded the Combat Infantryman Badge because he was attached as liaison to the 82^nd Airborne Division. General J____ recommended him for the Bronze Star and the Purple Heart. He writes, "I know from first hand evidence that he received the awards as outlined above, either through [the applicant] and collaborating evidence from others, including myself witnessing it or being told by a third party who was directly involved in [the applicant's] escapades." He states that he has seen the documentation, orders and etc. but that a flood from a broken pipe had destroyed all of the applicant's personal copies.

Another letter to the VA states that this writer also knows that the applicant received the requested awards for Panama and Operation Desert Storm and that he had seen the many orders and the certificates before the flood destroyed the applicant's copies.

The applicant's name was misspelled on the 31 January 2002 letter that first informed him the request for reconsideration would not be referred to the Board.

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 misspelling of the applicant's surname in the 31 January 2002 letter is regrettable, but it is not a material error.

2. The letters from the applicant's supporters were inaccurately described as character references. However, they do not demonstrate that the applicant is entitled to the requested awards. They only show that the writers are satisfied that he is so entitled. Although they claim to have seen the documentation, their descriptions lack the details that would add creditability to their assertions.

3. The interim case should have been referred to the Board, because the submitted documentation was, technically, new evidence. However, those documents do not demonstrate that the requested relief is appropriate. The letter from the Commander, 350^th MASH reports that he and the unit administrator had verified all of the awards listed on the applicant's DA Form 2-1 and that the necessary supporting documentation had been previously submitted to the 130^th Army Reserve Command. However, no supporting documentation has been provided to this Board.

4. The applicant's DA Form 2-1 is insufficient as a basis for the requested awards. This Board does not normally base correction of records solely on either a DD Form 214 or a DA For 2-1 although they are frequently quite useful in determining what to look for and where to look for supporting documentation.

5. Since it was not contained in the records available for the original consideration, the applicant's second DD Form 214 is also, technically, new evidence. However, the document, itself, is not proof that it is in error.

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. 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.

8. 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

_LLS____ __PM ___ __DPH__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002071779
SUFFIX
RECON
DATE BOARDED	20020806
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.00
2.
3.
4.
5.
6.