MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 November 2000                  
	DOCKET NUMBER:   AR2000047476

	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. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Lutz		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 appeal to correct his records by reconsidering him for promotion to major. 

APPLICANT STATES:  In effect, the applicant defers to his counsel.

COUNSEL CONTENDS:  The Board’s previous denial of the applicant’s earlier request was invalid because it was based upon the erroneous perception that he was not educationally qualified.  Counsel also contends, in effect, that the Board should have ordered a special selection board to reconsider the applicant’s promotion after two invalid officer evaluation reports were removed from his record.

NEW EVIDENCE OR INFORMATION:  The applicant’s request was originally considered and denied by the Board in 1966 and 1969.   Decisional documents reflecting the Board’s finding, conclusions and reasons were not prepared during the 1960s.  Therefore, the pertinent details of the case are now displayed.  

The applicant enlisted in November 1948, and attained the rank of sergeant.  He completed officer candidate school at the age of 31 and was appointed a first lieutenant with concurrent active duty on 23 September 1949.  He served in Korea and was awarded the Korean Service Medal with four bronze service stars.  He was released from active duty on 17 September 1952 and affiliated with the Army Reserve.

A 30 October 1962 memorandum notified the applicant that he was eligible for mandatory consideration for promotion to major.  He was considered and non-selected by the 1962 and 1963 Reserve Components Selection Boards.

On 21 November 1964 the applicant wrote to Army Headquarters stating that he had reviewed his records and determined that participation points had been incorrect and that his educational qualification for promotion had not been in his record.  However the Reserve Promotion Division determined that the 1963 selection board had been aware of the applicant’s educational qualification.

On 14 June 1966 the applicant requested this Board promote him to major because his educational qualification had not been properly entered into his record prior to the September 1963 promotion board and because his officer evaluation reports (OERs) for the period 1 February 1960 through 24 June 1961 had been inaccurate.  A 6 September 1966 memorandum from the Reserve 

Promotion Division informed the Board that the Army Artillery and Missile School. 
Fort Sill, Oklahoma had reported that the applicant had met the requirements in May 1964, after the second promotion board, and that he could not have been selected because he was not educationally qualified.  On 16 October 1966 this Board denied the applicant’s request .

However, the Artillery and Missile School subsequently certified that the applicant had met educational requirement for promotion on 23 August 1963.  On 30 October 1967 this Board referred the applicant’s case to a standby advisory board (STAB) for reconsideration based upon the educational requirement issue.  It was determined that the regular selection boards had, in fact, been aware that the applicant was educationally qualified and this Board was informed that the previous information that his nonselection was based upon his not being educationally qualified had been erroneous. 

In January 1969, this Board referred the applicant’s request that his OERs be changed or voided to the office of the Special Review Board (SRB) in the Office of the Deputy Chief of Staff for Personnel.  The Board also noted that evidence of the applicant’s reserve participation for anniversary years ending in 1960 and 1962 had been missing and asked that a STAB determine whether he would have been selected for promotion to major by the promotion board that adjourned 13 December 1963 had the proper participation been of record.  On 17 February 1969 the SRB recommended that the OERs be removed and that his promotion be reconsidered by a STAB.  

On 9 April 1969 the Board was informed that the applicant had been reconsidered by a STAB with the proper information in his record and the tainted OERs removed and the periods declared non-rated.  He had not been selected.  This Board again denied the applicant’s request.

The applicant wrote to a United States senator in August 1999.  That correspondence was forwarded to the Board.  A 2 December 1999 letter informed the applicant that his records were required to determine if he had submitted new information that warranted Board consideration.  That correspondence led to the filing of a new DD Form 149, (Application for Correction of Military Records) and the associated documentation is incorporated in this review.

Army Regulation 15-185 sets forth the policy and procedures for the Army Board for Correction of Military Records.  Paragraph 2-15 provides the guidance for reconsideration.  Subparagraph 2-15(a) states 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 any such matters have been submitted.

Subparagraph 2-15(b) further provides the requirements that apply to requests for reconsideration 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 to the applicant 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 and his counsel’s contentions are noted but there is no remaining error or injustice.  The educational requirement for promotion was not the cause of his second nonselection.  His original request to this Board was denied based upon erroneous information.  However, that misperception was corrected and since the educational requirement had not been a factor in his nonselection no injustice had occurred.  

2.  Subsequently, the applicant’s record was properly corrected in accordance with his request, he was reconsidered for promotion by a STAB, but was non-selected.  There was not and is not any remaining error or injustice.
 
3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

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 decisions.

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

__JLP___  __OWT _  __BJL ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047476	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.01	
2.		
3.		
4.		
5.		
6.