MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          19 November 2002
	DOCKET NUMBER:  AR2002073381

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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 discharge to general or honorable.  He is also making an initial request that his narrative reason for discharge be changed to convenience of the government; that his reenlistment (RE) code be changed to RE code RE-1; and that his separation program number (SPN) be changed to correspond to his new narrative reason.  The applicant requests a personal appearance before this Board.  

APPLICANT STATES:  In effect, that he was discriminated against because he would not smoke marijuana with his office mates.  He states that his case was originally denied on 13 August 1981; that he has been instructed to provide new evidence; and that he is now providing new evidence to obtain a favorable decision.  He states that he suffered abuse and discrimination by the United States Army clerks when his ticket was given to him to go to Fort Jackson, South Carolina.  He believes the 467 days of lost time under United States Code 972 as well as the 431 days from 10 July 1969 thru 13 September 1970 are errors on his DD Form 214 (Armed Forces of the United States Report or Transfer or Discharge) and that he has only 2 legitimate days of lost time.

Counsel contends that the applicant's background and limited command of the English language could have possibly left him open to discrimination by other personnel.  He states that the climate within the country and the military during the time the applicant served possibly provides a basis for the applicant's allegation of racial discrimination.  He also states that the amount of AWOL time is incorrect and that it needs to be recalculated.  He admits that he has no factual basis for any of his contentions.

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 on 5 August 1981 and again on 20 July 1994 (AC94-06578).

The applicant submits with his DD Form 149 (Application for Correction of Military Record) a copy of his DD Form 214 for the period ending 18 December 1970; a copy of a letter from the Salvation Army, dated 9 April 2001; and a copy of a certificate from the CAARR Institute certifying that he had successfully completed 90 hours of study in Social Model Theory and Practice.

The applicant’s submissions are new evidence and arguments that require 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 Board found no evidence that the applicant's chain of command acted in a discriminatory manner toward him or that he was treated differently because of his cultural background and limited use of the English language.  Similarly, the applicant provided no corroborating evidence to support his contention.

2.  The applicant's DD Form 214 reflects that he has 467 days of lost time and, after a careful review of the applicant's periods of AWOL, the Board determined that there is no error in the calculation of the number of days he was AWOL and that the 467 days of lost time is correctly reflected on his DD Form 214.  The Board also noted that the breakdown of each period of AWOL in item 30 (Remarks) equaled the 467 days of lost time.

3.  The applicant's administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The applicant was given an opportunity to appeal his pending separation; however, he declined to do so and submitted a waiver statement instead. 

4.  The Board noted that the applicant's DD Form 214 reflects the narrative reason for discharge as prolonged unauthorized absence for more than 1 year, with a SPN of 282 and a RE code of RE-4.  The Board determined that his narrative reason for separation, his RE code of RE-4, and his SPN code of 282 are the appropriate codes for his narrative reason for discharge.

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

__jns___  __svw___  __mhm___  DENY APPLICATION

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

INDEX

CASE ID	AR2002073381	
SUFFIX		
RECON		
DATE BOARDED	20021119	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19701218	
DISCHARGE AUTHORITY	AR 635-206 	
DISCHARGE REASON	A92.31	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.