MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          02 OCTOBER 2003                   
	DOCKET NUMBER:  AR2003085707

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 changing the separation authority, separation code, reentry code, and the narrative reason for his discharge. 

APPLICANT STATES:  In effect, that he was not the instigator in the homosexual incident in which he was involved – that the other individual involved had lied.  He (the other individual) fabricated the tale in order to get out of the Army.  He (the applicant) does not recall being advised of the "Don't ask, don't tell" policy.  He was misrepresented at the separation board proceedings, and betrayed by the NCO who was to testify in his behalf.  

In a 5 April 2003 letter to the Board, he states that his first sergeant was harassing him, and was biased and prejudiced against him.  He states that he signed the statement implicating himself, believing that he would only receive nonjudicial punishment.  He states that the first sergeant was racist; however, the accusation would be difficult to prove.  

In a 9 May 2003 letter to the Board, he implies that the first sergeant coerced him into making the statement.  He states that there was no sexual contact between himself and the other individual.  He states that he did receive letters of appreciation and was being considered for promotion; however, had problems with the physical fitness test.     

In an 11 September 2003 letter to the Board, he states that he did receive acts of valor and achievement awards.  He states that his first sergeant did not like him, and turned an accusation that he engaged in a homosexual act into a fact, making him confess.  He states that his first sergeant induced an NCO to turn against him during the separation board proceedings, and that his defense attorney misrepresented him.  He states that he cannot receive GI bill benefits or enter into the Reserves because of his reentry code.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2002079622) on                  19 December 2002.

The applicant’s contentions are new arguments that require Board consideration.

The applicant submits a July [2003] letter from an NCO attesting to the applicant's good character, stating that he was a good soldier, dedicated to his work, who got along well with his fellow soldiers.

He submits a copy of a 9 July 2003 letter from a pastor of a church in El Paso, Texas, in which that person states that the applicant attends church regularly, and that he would be an asset to the Army.
Included with the applicant's request is a copy of documents showing that he was awarded the Army Achievement Medal and three certificates of achievement.  He also included a copy of a certificate showing that he completed basic training and completed an automated logistical specialist course. 

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.

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 applicant's contentions that he was unfairly and unjustly treated are not borne out by any evidence submitted.  The evidence considered by the              19 December 2002 Board clearly shows that the applicant admitted to engaging in a homosexual act, that his case was fairly considered by a board of officers, and that he was discharged in accordance with applicable regulations.

2.  The Board notes the applicant's commendable performance of duty as reflected by the award of the Army Achievement Medal and his certificates of appreciation.  The Board also has taken cognizance of the support he has received, one from an NCO, and the other from a pastor in El Paso.  None of these factors however, either individually or in sum, warrant the relief requested.     
 
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 order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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

__KAN __  ___LE   _  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2003085707	
SUFFIX		
RECON		
DATE BOARDED	20031002	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.