MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          2 May 2002          
	DOCKET NUMBER:  AR2002066813    

	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	
	Ms. Wanda L. Waller 		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 undesirable discharge. 

APPLICANT STATES:  That his undesirable discharge should be upgraded on the grounds that his rights were bypassed and not explained to him, as evidenced by way of unit punishment records.  He also contends that the punishment imposed did not correspond with the infractions, given that other options were available based on his prior service records.  In support of his application, he submits a letter of explanation, dated 26 September 2001.       

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the consideration of Docket Number AC82-02027 by the Army Board for Correction of Military Records (ABCMR) on 15 September 1982.

The applicant submits a letter of explanation which contains new arguments which will be considered by this Board.

The Board noted the applicant’s service personnel records contain DD Form 789 (Unit Punishment Record) which shows that he received nonjudicial punishment on three occasions for failure to obey a lawful order of a noncommissioned officer, for being off post without a pass, failure to perform extra duty and loitering while a sentinel.  This DD Form 789 shows the entry, “RDM”, which are the typed initials of the applicant, in the section “Rights Understood; Initials of Accused.”  Also, the immediate commanding officer’s typed initials are shown in the section, “Initials of Immediate CO.”

The Board noted the applicant’s service personnel records contain DA Form 
19-24 (Statement), dated 22 August 1961, which was authenticated by the applicant, and states “I have been offered the opportunity to request counsel to represent me in these proceedings and decline this opportunity.  I do not desire counsel.”  

The Board also noted that, based on the applicant’s satisfactory performance of duties from 28 January 1958 to 13 July 1960, the ABCMR recommended that his records be corrected to show that he was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 13 July 1960.  This recommendation was approved by the Deputy Assistant Secretary of the Army (DA Review Boards and Personnel Security) on 30 September 1982.   

Army Regulation 635-208, in effect at the time, provided for the issuance of an undesirable discharge to those individuals discharged by reason of unfitness.
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.

Army Regulation 15-185 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 Board considered the applicant’s contention that his discharge should be upgraded on the grounds that his rights were bypassed and not explained to him, as evidenced by way of unit punishment records.  However, the applicant’s Unit Punishment Record shows his typed initials in the section “Rights Understood; Initials of Accused.”  

2.  The applicant’s DA Form 19-24 (Statement), dated 22 August 1961, which was authenticated in his own hand, shows that he declined the opportunity for counsel during his discharge proceedings.  

3.  The Board also considered the applicant’s contention that the punishment imposed did not correspond with the infractions, given that other options were available based on his prior service records.  However, the applicant has provided no evidence to support this contention.  

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

FNE____  WTM____  CJP_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002066813	
SUFFIX		
RECON	Yes	
DATE BOARDED	20020502	
TYPE OF DISCHARGE	Undesirable discharge	
DATE OF DISCHARGE	19610927	
DISCHARGE AUTHORITY	 635-208	
DISCHARGE REASON	Unfitness	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.