MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:	  

	BOARD DATE:             7 July 1999                 
	DOCKET NUMBER:	AC90-06814C
		AR1999015093

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Meta Waller		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 previous application to correct his records by upgrading his discharge.

APPLICANT STATES:  In effect, that his constitutional rights have been violated and he seeks redress under Title 42, Section 1983.  He continues to contend that he was injured in a line of duty accident, his service was commendable and that he was not afforded any compassion in dealing with the family problems arising from his brother’s death.

NEW EVIDENCE OR INFORMATION:  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 26 September 1990 (COPY ATTACHED).  The applicant’s interim request was administratively closed.

The applicant submits the new contention that his constitutional rights were violated of under Section1983, Title 42 USC, claiming that the Board’s actions have denied him medical treatment.

Section 1983, Title 42, United States Code (Civil action for deprivation of rights) states, in effect that every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 

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 applicant’s history of disciplinary infractions includes not only the period of AWOL that resulted in his Chapter 10 discharge but also six NJP actions and a summary court-martial.  This record of infractions is not out weighted by the favorable commendations he received earlier in this period of service.
2.  The applicant’s allegation of a violation of his constitutional rights is without merit.  The applicant was properly discharged after he waived his right to a court-martial.  He was notified that he would lose many benefits to include VA medical care.

3.  Section 1983, Title 42 USC set forth the applicant’s right to seek redress through the court system.  If the applicant actually believes that his constitutional rights have been violated under this provision of the law, then the appropriate avenue for redress is through the Federal Courts system.

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

___INW_  ___JEA__  ___MW__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC90-06814C
AR1999015093	
SUFFIX		
RECON	 	
DATE BOARDED	19990707 	
TYPE OF DISCHARGE	 UOTHC	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR635-200, CPT 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	110.00	
2.	123.01	
3.		
4.		
5.		
6.