MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 July 2003                  
	DOCKET NUMBER:   AR2003084141 

	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. Margaret K. Patterson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O'Shaughnessy		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 her earlier requests to upgrade her general discharge, to change the reason to Secretarial Authority and to change her reentry code to RE-1.

APPLICANT STATES:  In effect, she repeats her contention that she was unaware of the charges against her, that she was not allowed to consult with counsel or read the request for discharge for the good of the service (GOS) in lieu of trial by court-martial.  She was ordered and/or coerced to sign that document.  She contends that the discharge was unfair because she had to clear post without orders and was unable do so in some vital areas.  

She again contends that she was innocent and she submits documents to support that contention which she believes were not available to the Army Discharge Review Board or the original Army Board For Correction of Military Records (ABCMR) panel.  These include medical documents, which she believes demonstrate from her statements to her doctor that she considered herself to be the victim and devoid of any help or support.  She contends the fact that she attempted to withdraw the GOS request the next day shows that she was coerced and did not have counsel.

She also submits statements dated 2002 from two individuals who report that they were present in the orderly room when the incident occurred and that the applicant was simply defending herself against assault.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2002078731) on 10 October 2002.

The applicant’s submissions are included with the documents available to the previous ABCMR panel.  However, since they were not specifically addressed they are re-submitted to this Board as new evidence and argument that warrants Board consideration.

T____ B____ C____ a former Army specialist wrote in a 9 August 2002 statement that she, Specialist C____ and Lieutenant G____ were in the orderly room on the day in question.  There was a commotion, she looked up and saw Sergeant G____ push the applicant and the applicant defend herself.  She reported that she made a similar statement to the chain of command but it was apparently ignored or not used.

Sergeant C____ A____ C____ was a sergeant when she wrote her 17 July 2002 statement.  She reported that the applicant was outside the First Sergeant's door.  "Sergeant G____ swung her around to face him.  She then stated that to him that she wanted to speak to the 1SG and didn't want to talk to him anymore.  This entire time SPC [applicant] was standing in the position of Parade Rest.  She then said she was tired of him harassing her and he then brought his arm back, with his hand in a fist, like he was going to strike her.  I covered my eyes and turned my head for a couple of seconds, and when I looked again, Sgt. G____ had shoved SPC [applicant] against the door and both fell to the ground, striking each other." She reported that, at the time, she made the same statement to the company commander and the first sergeant. 

The charge sheet indicates that on 15 February 1996 the applicant was charged with assaulting, willfully disobeying and being disrespectful in language and deportment to the same noncommissioned officer (NCO). 
 
The applicant's 26 April 1996 request for discharge in lieu of trial by court-martial is counter –signed by a military lawyer who asserted that he had advised her as to the pertinent aspects and consequences and that she had personally made the choices indicated.

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 has 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.  In the absence of all of the information that was available to the chain of command when the decision to prefer charges was made, the two statements are inadequate to show that there was any injustice in that decision.  

2.  Furthermore, her medical records are simply a record of what she related and do nothing to demonstrate the accuracy of the applicant's assertions.
 
3.  In light of the fact that the military lawyer, who provided advice and counsel at the time of her discharge request, counter-signed that document; the applicant's assertions that she had no counsel and was coerced into signing are unconvincing.

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

___MKP_  __WTM _  ___TEO__  DENY APPLICATION

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

INDEX

CASE ID	AR2003084141	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030729	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19960618	
DISCHARGE AUTHORITY	AR635-200, chapter 10 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A90.07	
2.		
3.		
4.		
5.		
6.