MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             25 July 2000                  
	DOCKET NUMBER:     AR1999034023

	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. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 that his bad conduct discharge (BCD) be upgraded to an honorable discharge and that he be granted medical disability. 

APPLICANT STATES:  In effect, that the Army Board for Correction of Military Records was discriminatory when it denied his past requests to upgrade his discharge.

COUNSEL CONTENDS:  That all reasonable doubt be resolved in the applicant's favor.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in memorandums prepared to reflect the Board's consideration of his case on 23 August 1995 and 21 May 1997.  Copies of the previous Board actions are included with the supporting documentation submitted by the applicant.

In 1986 the applicant was convicted by a special court-martial of two specifications of indecent liberties with a female less than 16 years of age and adultery.  The adultery charge was dismissed on appeal but the original sentence of reduction to the lowest enlisted grade, confinement for 4 months and a BCD was upheld.  He was discharged on 2 September 1988.

The applicant has submitted two documents in support of his request for reconsideration.  The first is a Memorandum of Reconsideration styled after a legal brief in which he names the ABCMR, the FBI, the Department of Justice and a host of other agencies and individuals of, in effect, denying him due process, contempt of court and use of fraudulent and illegal documents.  As regards this Board, he specifically alleges that the Board failed to provide him a formal hearing and made incorrect determinations that he had failed to submit sufficient evidence to support upgrading his discharge.  The second document is in the form of a legal petition to the Supreme Court of the United States and indicates that he is resubmitting his request to determine whether the issue of racism and discrimination were involved in the Board’s previous denial of his request.

The applicant contends, through reference to various courts and other proceedings pertaining to prosecutions for discrimination and sex-related issues, that because he is black, he has not received fair consideration of his request in either the courts or by this Board.  His references do not identify any particular incident of discrimination but rather, he presents a compilation of issues as he sees them relating to his case.

The applicant has provided no evidence or argument concerning his request for medical disabilities, nor has he presented any factual evidence of discrimination in the Board’s proceedings that previously denied his request.

The applicant’s request to upgrade his discharge was considered and denied by the Army Discharge Review Board on 12 January 1994 and 28 April 2000.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 has submitted no new evidence or arguments that support upgrading his BCD.  Moreover, the record shows that much of the information he provides now was also used in support of his previous request for review of his case.

2.  In his application he requests that he be granted medical disability.  However, he provides no evidence to support the request and his records contain no evidence to show that he suffered any injuries on active duty that could have been the basis for a medical separation.  His Personnel Qualification Record shows his only assignment consideration as pseudofolliculitis for which he was to keep his beard neatly trimmed.  With the exception of the 3 in his physical profile for pseudofolliculitis, his profile reflects all 1’s.  Since it appears that he did not have any medically unfitting disability at the time of his separation, which would have required physical disability processing, there was no basis for physical disability retirement or separation.

3.  There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice.

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

___tsk___  ___sk___  ___jhk___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034023	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19880902	
DISCHARGE AUTHORITY	AR635-200, Chap 3	
DISCHARGE REASON	Trial by court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  110.02		
2.   144.68		
3.		
4.		
5.		
6.