MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           22 August 2002                   
	DOCKET NUMBER:   AR2002068766    

	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. Raymond V. O'Connor, Jr.		Member	
	Ms. Barbara J. Lutz		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 showing that he was separated due to physical disability retirement.

APPLICANT STATES:  In effect, the applicant defers to his counsel.

COUNSEL CONTENDS:  That the original Memorandum of Consideration (MOC) did not adequately address the contention that the applicant did not receive a fair hearing, his and his wife's statements relative to that contention nor the report of polygraph examination concerning that contention.  Therefore, counsel offers, as new evidence, an independent quality assurance review of the polygraph examination.

Counsel again offers the same evidence and argument to show that the applicant was not properly rated; that the diagnostic code should be changed and the percentage increased.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000048851) on 23 August 2001.

The submission is new evidence that requires Board consideration.

The quality control review of the polygraph examination was conducted, on 24 January 2002, by an individual who identifies himself as having been Department of Defense trained.  He was formerly a certified polygraph examiner for the Army Criminal Investigation Command (CID) and is currently the Chief Polygraph Examiner for the Cumberland County Sheriff's Office, Fayetteville, North Carolina.  He concluded that the polygraph was properly conducted and the charts consistent with a truthful person.  

The original, 4 February 2001, report on the polygraph examination relates that prior to the examination the applicant related:

The examinee states that he was in the Army approximately 13 years.  After sustaining duty related injuries he and his attorney appeared at a formal PEB hearing to discuss his low disability rating.

The examinee states when he and his wife arrived there were very few present so they seated themselves in a lobby area.  The examinee states he picked up a magazine and began to read it when a female who had been seated arose and left the immediate vicinity going down a nearby hall.

The examinee states shortly he heard two voices, one whom he believed to be the voice of the female that had been seated nearby and an unknown male.  During the conversation, the examinee states he heard someone mention his name and an Army soldier from Fort Bragg.  The examinee states that this perked his interest but [he] could not hear all of what was being said.  Shortly the examinee states he could hear someone down the hall say something to the effect "A person comes up here with a 10 % will leave with a 10%."  This, the examinee believed was a reference to the 10% disability rating he had previously been given.

The examinee states he did not immediately tell his attorney about these comments but after the hearing he told his attorney about what he heard.  The examinee states his wife was also present and overheard much of the same conversation.  

After a detailed discussion of the issue under consideration, this examiner developed the following test questions:

QUESTIONS UNDER CONSIDERATION:

Q-2T  Regarding your PEB hearing, do you intend to answer my questions truthfully?  THE EXAMINEE ANSWERED, YES. 

Q.-5R  While waiting for your formal PEB hearing , did you overhear your name being mentioned by PEB personnel?  THE EXAMINEE ANSWERED, YES.

Q-7R  Did you hear PEB personnel say a person that comes up here with a 10% will leave with a 10%?  THE EXAMINEE ANSWERED, YES.

The polygraph examiner concluded that the applicant had not attempted to be deceitful, that he had answered truthfully.  He also explained that a computerized polygraph had been used and that the computer analysis was in agreement with that conclusion, but he also noted that such programs had not yet been validated.

The original MOC noted that the applicant and his wife had reported overhearing a conversation, that they had rendered affidavits about the incident and that a polygraph examination had been offered to substantiate the veracity of those recollections.

The applicant reported "…I heard my name mentioned as the first case to be heard on this particular morning.  At first, I was not necessarily paying attention because I was reading a magazine, but when I heard my name mentioned I began to listen to what was being said.  I heard the male voice say 'Whoever comes up here with a 10% will leave with a 10%', or works (sic) to that effect.…"

The applicant's wife swore "…I heard the male voice say 'I have a Sergeant [the applicant] and he came in with a 10% and he will leave with 10%' or words similar to that.…"

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 affidavits both include enough qualifying phraseology, such as,  "or words to that effect" and "or words similar to that" and they are enough dissimilar so as to cast serious doubt as to exactly what was heard and what it meant.  The fact that both the applicant and his wife failed to immediately mention the incident to their civilian attorney convinces the Board that they did not perceive it as a real threat to receiving a full and fair hearing.

2.  The polygraph examination only establishes that the applicant answered truthfully as to what he thought he heard.  Neither the polygraph, itself, nor the quality assurance review of it demonstrates that the applicant was denied a full and fair hearing.

3.  The medical evidence and the attendant argument is still the same.  The Board has noted the contentions of the applicant and his counsel. However, they are not supported by the evidence submitted with the application, with this request for reconsideration or in the record.  They do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

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

_JHL____  ___RVO_  __BJL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068766  	
SUFFIX		
RECON	This applies only to ADRB	
DATE BOARDED	20020822	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.