MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           17 May 2000                  
DOCKET NUMBER:   AR1999034737

	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:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 expunging his records of the adverse Officer Efficiency Report (OER), covering the period from12 March 1994 to 5 October 1994, and the General Letter of Reprimand (LOR) dated 17 November 1994.

APPLICANT STATES:  In effect, that as his case was vacated by the US District Court and his name was removed from the titling block on the Military Police Report (AR190-45) and related records, it shows that the charges were unfounded and the retention of the adverse reports is now inappropriate.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 1 July 1998 (COPY ATTACHED).

The applicant submits a letter from the US Army Crime Record Center and a redacted copy of the polices report, that indicates that the applicant’s name was removed from the titling block of the police report and that the records of the Crime Center were also adjusted to remove his name from the corresponding records in their files.  

These documents were not available to the Board previously and constitute new evidence that requires Board review.

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 not shown that he was not mentally responsible for the behavior for which he received the adverse OER and LOR nor has he shown that the actions of his command were improper.

2.  As noted in the prior Board decision, the District Court vacated the original conviction due to the finding that the applicant was diagnosed as suffering from Persian Gulf Syndrome (PGS) with reported memory loss.  The court felt that the medical condition had a bearing on the issue of guilt and since it had not been addressed in the original trial it was appropriate to afford the applicant a new trial.  The Army chose not to contest this decision nor to continue to prosecute because the applicant was retired and key government witnesses were not available due to reassignment.  The case was dismissed without prejudice.  These actions on the part of the government do not in any way indicate that the applicant was not guilty of committing the offense nor do they show he was exonerated. 
3.  In the absence of evidence that at the time of the incident that led to the LOR and OER that the applicant was so impaired by mental, emotional, psychological or psychiatric problems as to be unable to tell right from wrong and adhere to the right, the current PGS diagnosis does nothing to demonstrate an injustice in these actions.

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

__CMF__  __FE____  _ RJW __  DENY APPLICATION

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

INDEX

CASE ID	AR1999034737	
SUFFIX		
RECON	 	
DATE BOARDED	20000517 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	134.01	
3.		
4.		
5.		
6.