MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           23 September 2003                  
DOCKET NUMBER:   AR2003084399

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann		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 application to correct his records by upgrading his discharge.

APPLICANT STATES:  In effect, that he has been an honorable and productive citizen since his discharge.  He states that he worked for the state of Ohio for 21 ½ years before becoming disabled with diabetes.  He states that he was exposed to Agent Orange and is now in need of medical assistance.  

The applicant asks that in light of the errors on his DD Form 214 (Report of Discharge or Transfer) that were corrected as a result of his prior request in concert with his post-service good citizenship, that an additional review be conducted.

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 (AR2002069825) on 4 June 2002.

In the applicant’s personal statement he requests that the Board review his videoconference testimony before the Department of Veterans Affairs (VA) Board of Appeals on 12 December 2002.  The applicant did not provide a copy this video for the Board’s review.

The applicant submits a medical report showing that he suffers from diabetes and a VA informational memorandum noting that veterans who were exposed to Agent Orange and now have diabetes are eligible for benefits.

Personal statements attesting to the applicant’s character are submitted from the applicant’s former supervisor, his State Representative, his minister and a judge.  These statements state that they have personally known the applicant for many years and have found him to be a devoted father and a good worker.  

The applicant’s submissions are new evidence and/or argument that require Board consideration.

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.  The fact that the applicant’s records, especially his DD Form 214 had errors that were corrected by the Board’s previous decisional document does not show that there were improprieties in his discharge or the characterization of his service.  While the applicant may have explained the reason for his 424 days of lost time to the VA, he has not provided the same information to this Board.

2.  The Board notes the letters attesting to the applicant’s good character and post-service adjustment and conduct, and his personal statements about his post service employment and his development of a sense of responsibility; however, it does not find that these activities are not so exceptionally meritorious as to outweigh the offences that resulted in his discharge.

3.  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.

4.  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

__JPL___  __AAO__  ___PHM _  DENY APPLICATION

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

INDEX

CASE ID	AR200308439	
SUFFIX		
RECON	 	
DATE BOARDED	20030923	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	upgrade	
2.		
3.		
4.		
5.		
6.