MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 8 May 2003
         DOCKET NUMBER: AR2002078263


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		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 appointing him to the rank of captain in the United States Army Reserve (USAR) effective 16 November 1994, by affirming his promotion to the rank of major, by affirming his USAR and active duty service during the period of 16 November 1994 through 30 August 1996, that he be reinstated to the USAR effective 11 January 2000, the date he was erroneously dropped from the rolls, that he receive all back pay and allowances, that he receive service credit for pay, promotion and retirement purposes and that all references to his removal from the rolls (to include his DD Form 214 dated 18 November 1993) be removed, and that the decision of the Army Discharge Review Board be accepted as his correct character of service, narrative reason for separation and separation program designator (SPD) code.

APPLICANT STATES: In effect, that subsequent to the Board's previous review of his case, the Army Discharge Review Board (ADRB) upgraded his general discharge to an honorable discharge and changed the narrative reason for separation and SPD Code. He goes on to state that he has located a copy of the orders dated 22 August 1994, which assigned him to the USAR Control Group (Reinforcement) and which legitimize his assignment to the USAR Program. He continues by stating that the only document not available is an appointment in the USAR, which was requested and not received. However, he served in the USAR from November 1994 until January 2000, when it was discovered that no appointment in the USAR had ever been tendered and that his service in the USAR was not creditable. He further states that he did nothing fraudulent to become a reservist and believes he has a right to be in the USAR. Furthermore, even if he made a good faith mistake regarding his status, equity demands that he not be penalized because the mistake was made in good faith and was joined into by the Army. Seven years of his life should not be simply voided. In support of his application he submits a case summary from the ADRB, a new DD Form 214, copies of his orders assigning him to the USAR, copies of his evaluation reports, his biographical summary and numerous letters of recommendation and commendation.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001051226) on 21 June 2001.

The applicant’s contentions are new argument and/or argument that require(s) Board consideration.

On 10 December 2001, the applicant applied to the ADRB for an upgrade of his general discharge in lieu of trial by court-martial to an honorable discharge for the good of the service. He was granted a personal appearance before that board and appeared with counsel on 24 June 2002. The ADRB opined, in a four to one vote, that the preponderance of the applicant's service was honorable and given his exemplary post-service conduct, to include service in the USAR, his discharge should be upgraded to honorable due to miscellaneous/general reasons. That board also determined that there were no provisions to change the narrative reason to reflect he was discharged for the good of the service. His request for an upgrade of his discharge was approved on 28 June 2002.

The orders cited by the applicant that are dated 22 August 1994, are an amendment of his separation orders which added after "Any temporary commissions or appointments held are terminated" the sentence "Officer is assigned to USAR Control Group (Reinforcement), ARPERCEN, St. Louis, MO 63152." This amendment was prepared 9 months after the applicant was discharged.

The letters of support submitted by the applicant with his application all support his re-instatement into the USAR and are complimentary of his performance. It is noted that some of the supporting letters indicate that the problem began when the applicant's DD Form 214 improperly reflected that he was discharged in lieu of trial by court-martial instead of showing that he resigned for the good of the service. They further indicate that had this been known, he would have been granted a USAR appointment by the special review board.

Army Regulation 600-8-24 prescribes the policies and procedures governing transfer and discharge of Army officer personnel. It provides, in pertinent part, that an officer may submit a resignation for the good of the service in lieu of trial by court-martial if court-martial charges have been preferred against the officer with a view towards trial by a general court-martial. An officer who resigns for the good of the service (regardless of the character of service received) is barred from rights under laws administered by the Department of Veterans Affairs based on the period of service from which the officer resigned.

Army Regulation 135-100 prescribes policies and procedures for the appointment of commissioned and warrant officers in the Reserve Components. It states, in pertinent part, that a person who has resigned for the good of the service in lieu of trial by court-martial is not eligible for appointment in the Reserve Component unless a waiver is authorized. It further provides that an upgrade of a discharge or characterization of a discharge does not constitute a sole basis for appointment because of such a change.

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.

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. The Board has revisited the applicant's contentions and the evidence of record. In doing so, the Board finds that he was properly discharged at his own request in lieu of trial by court-martial and his DD Form 214 was properly prepared to reflect such.

2. Additionally, the Board finds that he was never tendered an appointment as a USAR officer. However, he was allowed to serve, albeit illegally, until such time as it was discovered that no appointment had ever been tendered.

3. While the Board cannot determine with any degree of certainty how this was allowed to happen, it appears that the applicant's claim that his DD Form 214 was incorrect, led officials to believe that a change to the DD Form 214 was forthcoming.

4. Although the applicant has received an upgrade of his discharge and change to the narrative reason for his separation, the change does not negate the original basis for his discharge and his ineligibility to receive an appointment. In essence, his case equates to the same as a fraudulent enlistment for enlisted personnel who also do not receive credit for service at discharge.

5. The Board finds that 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.

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

__mdm__ __sac ___ __rd ____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002078263
SUFFIX
RECON	2001/06/21
DATE BOARDED	2003/05/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1. 14	102.0000/USAR APPT
2.
3.
4.
5.
6.