MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 March 2001 
	DOCKET NUMBER:   AR2001052466

	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. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O'Shaughnessy, Jr.		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 his earlier appeal to correct his military records by upgrading his under other than honorable conditions (UOTHC) discharge.

APPLICANT STATES:  In effect, that when he was supposedly AWOL he was actually in an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He feels like the previous Board did not conduct a fair hearing because it did not have records from the ADAPCP.  After he surrendered he was told that if he signed the papers put in front of him he would receive a general discharge.  He believes that his career was ruined by post traumatic stress disorder (PTSD).  He points out that he was awarded the Army Commendation Medal and two awards of the Good Conduct Medal. 

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 (AR1999028398) on 
24 November 1999.

The applicant’s contentions are new argument that requires Board consideration.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  Paragraph 2-9, Burden of proof, states “the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or an injustice by a preponderance of the evidence.”  

Paragraph 2-15 of the regulation 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.  Sub-paragraph 2-15b, provides 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 with 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 available evidence to support the applicant’s contention that he was not AWOL or that he was suffering from PTSD. 

2.  Furthermore, in the absence of convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue does nothing to demonstrate an error or an injustice in the discharge.

3.  Contrary to the applicant’s assertion that the original consideration was unfair because the Board did not have access to records that he claims exist but that can not be found, the Board is required to presume regularity and it is his responsibility to demonstrate by evidence that the record is in error or is unjust.  

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

__EMW__  __TEO__  ___RTD_  DENY APPLICATION

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

INDEX

CASE ID	AR2001052466	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.	A93.19	
3.		
4.		
5.		
6.