MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           1 August 2000
DOCKET NUMBER:   AR1999032570

	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	
	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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 previous request to correct his records by upgrading his dishonorable discharge.

APPLICANT STATES:  In effect, he states his commanding officer was out to get him one way or another.  That it has been 26 years since his discharge and he has been a good husband, grandfather, father and has had no trouble with the law.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on           15 April 1991 (COPY ATTACHED).

The previous Board’s MOC considered the applicant’s argument that his court martial was unjust.  The post service argument is new and requires Board consideration.

In support of his post service argument he submits a statement from his sister-in-law, brother-in-law and a friend who all state he has made great improvements in his life, stays out of trouble and is a hard working family man.

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 submitted letters of the applicant’s successful post service adjustment and behavior are noted but these matters are not so exemplary nor exceptional as to demonstrate an injustice in the discharge.

2.  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 the aforementioned requirement.

3. Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board normally looks at an entire file.  The Board considers the statute of limitations only after all other aspects had been considered and it had been concluded that there is basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document does not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years.  Furthermore, arguments about failure to timely file are moot, because this review of the entire case is a consideration of the merits.

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

_DSJ_ __  __KAK__  __EWL___  DENY APPLICATION

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

INDEX

CASE ID	AR1999032570	
SUFFIX		
RECON	 	
DATE BOARDED	20000801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.