MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 January 2001                             
	DOCKET NUMBER:   AR2000046340

	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:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Walter T. Morrison		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 earlier appeals to correct his military records by awarding him Special Duty Assignment Pay (SDAP) from November 1994 to March 1996; declaring the period from August 1993 to March 1997 a non-rated period; promoting him to sergeant first class (SFC) effective 4 November 1989 and master sergeant (MSG) effective 1 May 1996; restoring leave; awarding him the Good Conduct Medal (second award) for the period from 10 August 1996 to 9 August 1999; The Expert Qualification Badge with Rifle and Pistol Bars; showing completion of the Advanced Noncommissioned Officers Course (ANCOC) on his DD Form 214; reimbursing him for health care expenses; and reclassifying and reassigning him to an Active Guard/Reserve (AGR) tour within commuting distance of his home of record.   He also requests a personal appearance hearing.

Note:  His request to delete the Narrative Reason for Separation from block 25 of his Report of Separation (DD Form 214) as recommended in the Board’s proceeding of his original case (AR1999029339) has been accomplished.

APPLICANT STATES:  In effect, that until February 2000 Oklahoma Army National Guard officials had obstructed due process.  He believes that the documents he submits will substantiate that the requested relief is warranted.

To support his contentions the applicant submits copies of his leave and earnings statements; copies of two memoranda from his current Army Reserve unit requesting help resolving shortfalls in the regulations of the Equal Opportunity / Inspector General Programs; extracts from various regulations; a letter from the Oklahoma National Guard Inspector General to the effect that they could not become involved with the applicant’s evaluation because he had not exhausted his administrative remedies; newspaper articles and correspondence about the applicant and recruiting efforts at Langston University; promotion orders, promotion worksheets and promotion lists; correspondence relating to his Equal Opportunity complaint about the termination of his AGR status; a summary of his dental bills and a DD Form 214 for a subsequent period of Army Reserve active duty. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a record of proceedings and memoranda prepared to reflect the Board's previous considerations of his case, including AR1999029339 on 9 December 1999, AR2000036751 on 3 August 2000 and AR2000042543 on 10 August 2000.

The applicant’s requests for SDAP, reinstatement, reclassification, reassignment and a follow-on AGR tour were considered on 3 August 2000 and considered again on 10 August 2000.

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

Among the documents submitted by the applicant is a copy of Orders Number 209-01, dated 28 July 1998 by Headquarters 75th Division (Exercise) amending the applicant’s effective date of rank as an SFC from 10 July 1997 to 
3 November 1989.

He also submitted an Oklahoma National Guard MSG(E-8) promotion list effective 1 May 1996.  It states that the list is in promotion sequence and that approximately five soldiers be promoted.  The applicant is number three on the list. 

The DD Form 214 shows that the applicant served from 12 October 1998 to
31 January 1999.  He was discharged in pay grade E-8 and the Expert Qualification Badge with Rifle and Pistol Bars is included in his authorized awards.
 
The summary of dental bills, dated 16 February 2000, covers the period from 
1 October 1998 to 15 February 2000.  There is no indication of any dental work performed during the recent period of active duty. 

Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 continuous years except in those cases when the period for the first award ends with the termination of a period of Federal military service.

Army Regulation 15-185 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. The applicant’s requests for SDAP, reinstatement, reclassification, reassignment and a follow-on AGR tour have already been reconsidered by the Board.  There is no substantial relevant evidence that shows fraud, mistake in law, mathematical miscalculation, manifest error, nor is there substantial relevant newly discovered evidence.  There is no basis for the Board to reconsider these issues.

2.  The evidence provided does not show that his dates of rank for SFC and MSG are wrong.

3.  There is no available evidence that the applicant has exhausted his administrative remedies relative to his evaluation report(s).  Consideration of his request to designate the period from August 1993 to March 1997 as  non-rated is not appropriate.

4.  The Expert Qualification Badge with Rifle and Pistol Bars is shown on the applicant's most recent DD Form 214 but  there is no available evidence upon which to conclude that it should be added to his earlier DD Form 214.

5.  The applicant was not on continuous active duty for 3 years subsequent to the award of his first Good Conduct Medal.  He is not entitled to a second award.

6.  There is no basis for paying the applicant’s dental bills.

7.  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.

8.  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

__LLS __  __TEO __  __WTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046340	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	111.02	
3.	121.00	
4.	128.07	
5.		
6.