MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 December 2000                  
	DOCKET NUMBER:   AR2000045206

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Richard T. Dunbar		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 previous applications to correct her military records by reinstating her to active duty with back pay, promoting her to pay grade E-6, changing her reentry eligibility (RE) code to 
RE-1 and separating her with physical disability retirement.

APPLICANT STATES:  In effect, applicant defers to her counsel.

COUNSEL CONTENDS:  Counsel contends that the applicant’s discharge was improper because she  was entitled to have her case considered by a board of officers.  Counsel also argues that the applicant’s separation was actually caused by physical disability that was ignored by her chain of command.  She was denied a physical examination and a mental status evaluation and that she should have been separated for physical disability retirement.  Finally, counsel contends that the RE code be changed to RE-1.  Counsel contends that the applicant only recently obtained some of the service record documents.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous considerations of her case on 26 March 1997 (AC97-05042) and 27 April 1999 (AR1999023427).

The submissions are new evidence and argument that requires Board consideration.

Among the documents submitted is an 11 July 1991 letter from a military lawyer who was apparently the applicant’s assigned counsel. That lawyer noted that on 15 February 1991 the applicant had been counseled about unsatisfactory performance and given 90 days in which to improve her performance and attitude or face elimination.  The lawyer also pointed out that the applicant’s employment since that date had included field duty which ended with her hospitalization due to complications from her recent pregnancy, assignment to sick in quarters for a week and that 7 days later she was counseled to begin separation processing.  She was relieved of her duty as Standard Installation/Division Personnel System (SIDPERS) clerk on 1 May 1991.  She actually had 33 days in which to demonstrate improved performance.  The applicant’s lawyer appealed for a rehabilitative transfer so that she could fairly demonstrate her full potential. 

On 15 July 1991 the applicant was officially notified of elimination processing under the provisions of Army Regulation 635-200, chapter 13.  She elected to consult with counsel and to submit statements in her own behalf.  The applicant 
also acknowledged that “I understand that I may, up until the date the separation authority orders, directs or approves my separation, withdraw the waiver of any of the above rights and request that an administrative separation board, if authorized, hear my case.”  The notification was countersigned by the same JAGC lawyer who had written the letter described above.  

Army Regulation15-185 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 had 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 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.  There is no evidence that the applicant was deprived of her right to have a board of officers consider her case.  She had the benefit of counsel and she was properly notified.  She could have had such a board by asking.  

2.  The applicant was not promised 90 working days to prove herself and improve her attitude.  Unsatisfactory performance includes far more than simply work performance.  The applicant’s discharge was proper.

3.  The issues of physical disability and RE codes were addressed in the previous reviews and nothing new was submitted. 

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

__JH____  __HOF__  ___RTD_  DENY APPLICATION

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

INDEX

CASE ID	AR2000045206	
SUFFIX		
RECON		
DATE BOARDED	20001214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	100.03	
3.	131.00	
4.	108.04	
5.		
6.