MEMORANDUM OF CONSIDERATION

IN THE CASE OF: 

BOARD DATE:           2 August 2001  
DOCKET NUMBER:   AR2001055233

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John P. Infante		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 application to correct his records to show credit at a battalion command level, selection for senior service college, promotion to colonel, and selection for brigade level command, with the restoration of all rights, privileges, and property.

APPLICANT STATES:  In effect, that other officers received credit for battalion level command during the Gulf War under similar situations.  He asks that the Board review the records of four specific officers (he was denied access under the Privacy Act) which he contends will support his contentions.  In support of his case he submits a letter from General H_______.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case (AR200039824) on 12 September 2000.

The applicant submits a letter from General H_____, Commander, Headquarters US Army Forces Command, Fort McPherson, Georgia.  The general states that he has known the applicant since he was a Reserve Officer Training Corps (ROTC) cadet and that he has extensive personal knowledge of the applicant’s outstanding record and abilities.  He states that, in his opinion, there were obvious errors and discrepancies in the applicant’s OERs as well as a flaw in the rating scheme.  He further states that he knows of no officer who he would consider better qualified or more deserving of promotion.

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 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.  This Board is not a developmental board and does not normally investigate cases.  Nor does it have the authority to review any personnel file without the individual’s permission unless there is an application before the Board.

2.  Even if these records were obtained the specifics of each case are unique and may result in different outcomes under similar circumstances.  The principle that equal justice does not require identical treatment is as applicable to administrative actions as it is to the law.

3.  The applicant has failed to show that he ever held an official position of either of battalion commander or acting battalion commander.  The applicant’s records reflect only that he served in the capacity of acting battalion commander as a part of his duties as an executive officer.

4.  Not withstanding the opinion by General H _____, there is no evidence of improper preparation or processing of the applicant’s OERs, that the applicant served officially in a battalion level command, or that he is entitled to a Board directed selection for senior service college or promotion to colonel.

5.  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.

6.  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

__RJW__  __BJE___  __JPI___  DENY APPLICATION

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

INDEX

CASE ID	AR2001055233	
SUFFIX		
RECON	 	
DATE BOARDED	20010802 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.09	
2.		
3.		
4.		
5.		
6.