MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

BOARD DATE:           9 June 1999                   
DOCKET NUMBER:  AC88-08058A
			   AR1999023859

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. Raymond J. Wagner		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:  Reconsideration of his application to correct his records by revoking his 28 July 1987 discharge, promoting him to Lieutenant Colonel affective December 1986, purging his file of all records of the discharge and related actions, granting him full restitution with pay and benefits to the date of correction, and by granting him the appropriate retirement points and years credit from date of discharge to the date of correction.

APPLICANT STATES:  In effect, that his discharge was in error and unjust.  He avers that the Commander, Army Reserve Personnel Center (ARPERCEN) not only did not approve the findings of the 1984 Fitness Board, as demonstrated by his assignments in the Army Reserve, but that he was told that it was disapproved.  He contends that the discharge was in error and/or unjust in that it occurred over 3½ years after the Fitness Board decision, that it was made counter to the 5040th USAR School’s Commandant’s recommendation to retain him and to the expressed support for his retention by the officers and soldiers that knew and worked with him.  He contends that his OERs and letters of support from his commanders and fellow officers show that he was an asset to the Army.  He contends that he received verbal conformation that his discharge recommendation was disapproved and supports this contention by noting that he was to complete three things to allow him to be retained and receive his Reserve assignment.  He further avers that the 1997 Army Discharge Review Board’s favorable decision supports these facts.

NEW EVIDENCE OR INFORMATION:  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 16 August 1989 (COPY ATTACHED).

The applicant’s application is virtually identical to his previous submissions except that he submits a copy of the ADRB’s decisional document granting him an upgrade of his discharge and change of narrative reason for discharge.  The applicant’s contentions, as noted above, differ sufficiently from his original request as to constituted new argument warranting Board review.

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.  At the time of the incident that prompted the applicant’s discharge, the National Guard had the authority to discharge him from both the National Guard and the Army Reserves.  They chose not to exercise that option but deferred the Reserve discharge to ARPERCEN.  Regulations in effect at that time clearly indicate that the applicant should have been discharged by ARPERCEN at the time of his return to Army Reserve control. (NOTE: The regulations are set forth in the Board’s 1988 decisional document).

2.  Although the applicant continued to serve in the Reserves for a period of time following his release from the National Guard, there is no evidence that ARPERCEN formally acted on his mandated discharge by either approving or disapproving the discharge.  Therefore, when 4th Army became aware of this error it was proper for them to order his discharge.

3.  The 1984 administrative error of not discharging the applicant does not constitute an injustice or warrant voiding his discharge, reinstatement or awarding of any additional reserve retirement points or pay. 

4.  The fact that the applicant received strong support for his retention up to and including that of the 5040 USAR School’s Commandant, does not create an error or injustice in the discharge.

5.  It is the Board’s opinion that even if the applicant had been retained, he would not have been promoted to lieutenant colonel in 1986 nor at any subsequent promotion review due to the nature of his civilian conviction.  This would have resulted in his being twice passed over for promotion and, again, he would have been released prior to attaining 20 qualifying years of service for retirement.   

6.  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.

7.  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

___EB__    ___RJW_  __JPS__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC88-08058A
AR1999023859	
SUFFIX		
RECON	 	
DATE BOARDED	 19990609	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	1996	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.