MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 March 1999                   
	DOCKET NUMBER:   AC77-02681Q
				   AR1998014502

	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. Loren G. Harrell		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		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:  In response to the Boards Reconsideration Project , that of his previous application to correct his records by upgrading his dishonorable discharge.

APPLICANT STATES:  In effect, that his previous denials by the Board are unjust because he has never been allowed a personal appearance hearing and that his two prior honorable discharges warrant a personal appearance hearing.  

He notes the Board’s 28 October 1981 description of the back injury he sustained in parachute accident and a 15 December 1955 statement from the staff judge advocate’s (SJA’s) review of his general court-martial (GCM) conviction.  He includes a notarized statement from an individual who states that she was the nurse/receptionist for a deceased general surgeon who treated the applicant for a spinal injury in the late summer of 1952.  He another notarized statement from an individual who relates that he attended basic training and airborne training with the applicant and that he witnessed the applicant injure his back.  A 2 March 1972 letter from a neurologist reports  that the applicant relates lower back and sciatica to his Army parachute training.  A 15 April 1972 letter from the same doctor reports that 2 years previously the applicant had been hospitalized  for conservative management of back pain.  In late March 1972 spinal surgery revealed a lipoma (fatty tumor) a mild disc herniation which were believed to be causing the applicant’s back pain and sciatica.  Subsequent letters from other doctors report in 1989 and 1995 that the applicant still suffered pain from his bad back.

COUNSEL CONTENDS:  In effect, that the failure to afford the applicant a personal appearance hearing has deprived him of due process.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's original consideration of his case on 28 October 1981.  (COPY ATTACHED).  (His original application was considered and denied by the Board on 28 January 1959, however no decisional document reflecting that consideration is available.)

The medical information seems to be an implied contention that the applicant’s AWOL was motivated by a physical injury.  As such it is a new argument that required Board consideration.

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 the operation of the Army Board for Correction of Military Records provides that it may deny an application without a formal hearing if insufficient evidence has been presented to indicate probable material error or injustice.  Although an applicant may request a personal appearance before the Board, there is no statutory or regulatory right to or a formal hearing. Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, that only sworn testimony can provide the necessary information.  No injustice is demonstrated by the fact that the applicant has not appeared before the Board in person.  No evidence or augment has been offered that can not be readily understood and evaluated without a hearing.

3.  The implied argument that the applicant’s AWOL was motivated by a physical injury is both unconvincing and irrelevant.  The applicant has presented no evidence or argument to show that his actions were an appropriate solution to his personal and family problems or a reasonable response to such an injury.

4.  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.

5.  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

___TSK_   __OWT__  ___JPS__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC77-02681Q
AR1999014502	
SUFFIX		
RECON		
DATE BOARDED	19990317	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.06	
2.		
3.		
4.		
5.		
6.