MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           19 September 2000                  
DOCKET NUMBER:   AR2000038063

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 her application to correct her records by showing that she is entitled to pay as a private first class (E-3) from 1 March 1996 until the date of her discharge.  She also requests payment for the period of 1 January to 15 January 1997.  

APPLICANT STATES:  In effect, because the Board restored her rank that she is entitled to pay in pay grade E-3.  She also states that she did not receive any pay for the period 1 January to 15 January 1997.

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 her case on 24 November 1999 (COPY ATTACHED).

The applicant submits a copy of a letter from DFAS that states there is no monetary benefit due.  She also submits copies of her leave and earnings statements whereon she indicates what she believes are incorrect amounts or times that she did not receive proper payment.

On 28 August 1996 the applicant was reduced to pay grade E-1 as a result of non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice.  This reduction directly relates to the issue of entitlement to the benefits sought by the applicant.  Therefore, the Board, on its own initiative, deems it appropriate to review the NJP action for propriety and equity.

These documents and issues constitute new evidence and argument that require Board review.

The applicant’s records show that she entered active duty on 2 August 1995.  She was promoted to pay grade E-3 on 1 March 1996.  Her records contain copies of negative statements which include the following: 

a.  a monthly counseling statement, dated 31 May 1996, that noted a perception of a deterioration in her military bearing and development of an unprofessional attitude;

b.  two counseling statements, dated 10 June 1996, one for missing GI parties on 8 and 9 June and another for missing flag detail on the same dates; 

c.  a counseling statement, dated 7 August 1996, for failure to follow a lawful order and being unaccounted for from 1300 to 1600 hours.  In the summary the counselor stated that during the counseling that she was very negative and disrespectful; and 

d.  a counseling statement of 12 August 1996 for failure to follow a lawful order.

On 28 August 1996 the applicant accepted NJP for disrespect towards a non-commissioned officer.  The applicant did not submit a written statement on her own behalf.  Punishment included a reduction to pay grade E-1, forfeiture of $490.00 per month for two months and 45 days extra duty. The applicant appealed the NJP and on 12 September 1996 one month of the forfeiture of pay was suspended, to be remitted if not vacated before 12 March 1997.

On 10 September 1996 the applicant’s company commander initiated a bar to reenlistment.  The battalion commander approved the bar on 17 September 1996.  Her appeal of the bar was denied.

In September 1996 the applicant’s check-cashing privileges were suspended for 12 months for writing seven dishonored checks during June and July 1996.

On 21 September 1996, she was given emergency leave and was briefed to contact her first sergeant or commander if she needed a leave extension and not to sign in at any other military installation due to the fact she was flagged.  She did not return upon the completion of her leave and was reported absent without leave (AWOL) from on or about 7 October 1996 to on or about 23 October 1996.  

On 24 October 1996 her vehicle pass and driving privileges were suspended and she was restricted to the barracks and her work site unless under an escort; escort to be approved by the first sergeant or company commander only.  She was directed to surrender her military driver’s license and passport.  Also the applicant’s check-cashing privileges were revoked due to her continued writing of worthless checks.  On this date the applicant received another counseling statement for her voluntary admission that she intended to violate the restriction order.

On 29 October 1996 the applicant was brought before her company commander failing to go to her appointed place of duty.  During this notification procedure the applicant picked up the NJP form, tore it up and threw it in the trash.  The company commander contacted legal and it was decided to prefer court-martial charges. 

On 16 November 1996, court-martial charges were preferred against the applicant charging her with AWOL; absent from her appointed place of duty; disrespect towards a superior commissioned officer; and disobedience of a lawful order.  

On 2 December 1996, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that she might be deprived of many or all Army and Veterans Administration benefits.  She elected not to submit a statement in her own behalf.  A medical examination was not requested.

The discharge authority directed that the applicant be discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  She was discharged on 25 January 1997 with 1 year, 5 months and 24 days of creditable active service.  Her DD Form 214 shows no lost time.

The applicant’s Personnel Qualification Record (DA Form 2-1) does not list the applicant’s NJP action, reduction in pay grade or her lost time due to period of AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge and change of reason for separation.  The ADRB upgraded her discharge to general under honorable conditions but denied her request to change the narrative reason.

The applicant’s March 1999 application, to this Board, was for an upgrade of her discharge to honorable, a change of narrative reason for discharge, to restore her to pay grade E-3, effective 1 March 1996 and to authorize back pay.  

The Board declined to upgrade the applicant’s discharge or to change the reason for discharge.  However, it determined that it would be appropriate to restore the applicant’s pay grade to E-3 since the ADRB had upgraded her discharge to general under honorable conditions.

10 United States Code, subsection 1552(a)(4), states that the ABCMR can not reconsider its decision unless authorized by an exception or other legal authority.  The doctrine of administrative finality prevents cases and application from being perpetually reopened and reexamined.  Once a final administrative authority reaches a decision approving or ordering an action, the case is closed.  The power of the official rendering the decision is exhausted concerning that case, and the deciding official can not reconsider the decision, unless an exception to the doctrine of administrative finality or other legal authority authorizes reopening the case.  The following are exceptions to administrative finality, fraud, submission of substantial new evidence, a mistake in law, and mathematical miscalculations.

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 finds no error or injustice in the imposition of the non-judicial punishment that resulted in the applicant’s reduction in pay grade.

2.  The Board restored the applicant’s pay grade based upon the assumption that the applicant was reduced as a result of the discharge action.  This was an erroneous assumption based, in part upon the absence of the NJP and reduction entries on the applicant’s DD Form 2-1. 

3.  While the Board is precluded from rescinding previous decisions under the doctrine of administrative finality, it is also tasked with rendering fair and equitable decisions within the law.  The Board finds no error, injustice or inequity in the NJP action.  Therefore, it is not appropriate to grant the applicant restoration.

4.  The evidence submitted by the applicant shows that she was properly paid as an E-3 from 1 March 1996 until 5 September 1996 and thereafter as an E-1.  There is no evidence that she did not receive her pay for the period of 1 January to 15 January 1997.

5.  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

__HOF___  __JPI __  __RKS__  DENY APPLICATION

   Carl W. S. Chun
    Director, Army Board for Correction 
      of Military Records

INDEX

CASE ID	AR2000038063	
SUFFIX		
RECON	 	
DATE BOARDED	20000919 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.