MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           28 March 2002                  
	DOCKET NUMBER:   AR2001058393    

	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. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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 expunging the proceedings and outcome of the administrative discharge board and allowing him to re-enlist.  He also requests to appear before the Board.

APPLICANT STATES:  In effect, that his assignment from Headquarters and Headquarters Battery (HHB), 3rd Battalion, 44th Air Defense Artillery (3/44th ADA) to A Battery 3/44th ADA was contrary to Army Regulations 614-30, 614-6, 
and 600-8-105.  He states, in effect, that in accordance with those regulations the transfer was improper because the two units were not in the same location, that he should not have been transferred on verbal orders because an expenditure of funds was required but had not been authorized and that, when the written orders were issued, they were not properly prepared or authenticated.  He contends that, if he had not been improperly transferred, he would not have been subject to the command directed urinalysis, the nonjudicial punishment, or the elimination action.  He also contends that the separation action was improper because he was not offered rehabilitation.  He cites and interprets various provisions of the various regulations to substantiate his case.  

COUNSEL CONTENDS:  Counsel offers no evidence or argument beyond that submitted with the application.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000037249) on 7 September 2000.

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

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one 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.  The argument that the reassignment was improper because the two batteries were in different locations ignores the fact that it occurred within the same activity.  

2.  There is no evidence that the verbal reassignment order was invalid because an expenditure of funds was required.  The Board notes that the applicant has not presented a disapproved request for reimbursement of travel expenses.

3.  Notwithstanding the applicant’s interpretations of the various regulations, a battalion commander has the authority to assign personnel within the battalion to meet the requirements of the organization.  Any administrative irregularities in the publication of the reassignment orders did not undermine the inherent authority or the validity of the battalion commander’s movement of the applicant between two of his batteries. 

4.  In cases where immediate separation from the service is appropriate, rehabilitation is not applicable.  Additionally, the regulatory requirement to initiate elimination proceedings in response to the first instance of noncommissioned officer drug abuse obviates the need to address rehabilitation as a first step. 

5.  Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing.  The Board receives over 15,000 applications each year, but normally grants fewer than fifteen formal hearings a year.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.  This case does not meet those criteria.

6.  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.

7.  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

__FNE__  __LE   ___  __TL ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058393	
SUFFIX		
RECON	This applies only to ADRB	
DATE BOARDED	20020328	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.