MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           2 April 2002                   
	DOCKET NUMBER:   AR2001063824    

	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. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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 authorizing retroactive payments for Medical Additional Special Pay (MASP) and Incentive Special Pay (ISP) 

APPLICANT STATES:  In effect he defers to his counsel.

COUNSEL CONTENDS:  That the original Army Board for Correction of Military Records (ABCMR) decision was based on the understanding that the applicant had not executed the contracts for special pay.  Counsel argues that this is only partly true in that the applicant was informed that he was not eligible to retroactively sign the contracts and that his only recourse was to apply to this Board.  Counsel reports that the applicant has continued to pursue his request to be separated from the Army in the Court of Appeals.  Counsel also reports that, since the ABCMR’s original decision, the applicant has sought and received special pay for the period 2001-2002.  She contends that he was informed that the only way for him to receive the retroactive pay was for him to apply to this Board and that successfully appealing to the ABCMR would pose no problem.  He “did not execute contracts for the periods 1999-2000 or 2000-2001 before the periods to which he would be committed because he did not know what decision would be rendered regarding his request to resign, whether from the Army the Board or the Court.  He could not commit to further service while pursuing his immediate release.  The Board’s denial contradicts that advice.  It is irrational for the Board to insist that he be denied the pay because he did not sign the contract when, in fact, he had already performed the work.  He had asked for a personal appearance hearing and repeats that request.  Counsel contends, in effect, that notifying the Board of the applicant’s dispute about his obligated service was prejudicial.  The “special pay” expert at Walter Reed Army Medical Center has found that the provision cited by the Board does not apply.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2001052224) on 21 August 2001.

The counsel’s submission is new argument that requires Board consideration.

As noted in the original decision the applicant had not executed the contracts that would have authorized him to receive these two categories of special pay.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  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 one 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 applicant admits, through counsel, that he could not sign the contracts, which would have authorized the special pay and obligated him to additional service, because he was seeking his release from active duty.  There is nothing illogical about denying a benefit based upon a reciprocal action when that action was not and has not been taken.  

2.  There is no available evidence to show that the contractual requirements do not apply to this case nor that the applicant was so informed.  Furthermore, the applicant does not claim he made any decision based upon faulty advice.  He admits, through counsel, that he took the actions he did for his own convenience because he intended to leave the Army. 

3.  Although the applicant requested for a personal appearance before the Board, there is no statutory or regulatory right to or a formal hearing.  The Board receives over 15,000 applications each year, but normally grants fewer than fifteen formal hearings a year.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.  This case does not warrant such hearing.

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

__WTM__  __CLG __  __CLG__  DENY APPLICATION

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

INDEX

CASE ID	AR2001063824	
SUFFIX		
RECON	This applies only to ADRB	
DATE BOARDED	20020402	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.06	
2.		
3.		
4.		
5.		
6.