MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 February 2001                            
	DOCKET NUMBER:    AR2000047477

	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. JoAnn H. Langston		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. George D. Paxson		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 military records by removing the noncommissioned officer evaluation (NCO-ER) for the period from December 1995 through September 1996.

APPLICANT STATES:  In effect, that his initial counseling dated 27 September 1995, his record of counseling (DA Form 2166-7-1), the award of the Army Commendation Medal for the period 5 and 6 November 1995 and the fact that his company commander tried to get his Army Commendation Medal revoked all demonstrate that the NCO-ER is unjust.  In support of his case, he submits copies of the award recommendation and citation, his initial counseling statement, his DA Form 2166-7-1 and a letter from the Group awards clerk to the effect that company commander ripped up the recommendation after it had been approved and that the recommendation form had to be reconstructed before it could be revoked.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999034646) on 16 March 2000.

The applicant’s submissions are new evidence that require Board consideration.

The record of counseling does not show that the applicant was counseled on 
6 September 1996 as is indicated on the NCO-ER.

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 record of counseling tends to support the applicant’s contention that he was not counseled on 6 September 1996 as the NCO-ER indicates.  However, the previous Board already considered evidence showing that he was on leave on 6 September 1996 and concluded that the discrepancies in counseling or the record of counseling were not material error that demonstrated that the requested relief was warranted.
 
2.  The award of the Army Commendation Medal is for a period outside the rating period and the commander’s actions relative to that award are irrelevant to the requested relief. 

3.  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.

4.  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

__JHL___  __DPH__  __GDP __  DENY APPLICATION

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

INDEX

CASE ID	AR2000047477	
SUFFIX		
RECON		
DATE BOARDED	20010208	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.