MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 April 2000                  
	DOCKET NUMBER:   AR1999029088

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchannon		Chairperson	
	Mr. Thomas A. Paqan		Member	
	Mr. Kenneth L. Wright		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: That his financial obligation for an overpayment and casual payments be waived, that his general discharge be upgraded to an honorable, and that his records be corrected to show the award of the Army Commendation Medal.

APPLICANT STATES: That the military continued to pay him after separation and that on the day of separation from the Army he had no knowledge of an obligation to repay a casual pay. His service was honorable and the general discharge he received is not appropriate or fair based on his service.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 29 November 1988, was trained as a light wheel vehicle mechanic, and assigned to Ft Hood, Texas.  He deployed to Southwest Asia and returned to Fort Hood, Texas.  On 23 September 1991 he was discharged Under Honorable Conditions, in accordance with Army Regulation 635-200, paragraph 14-12b, Pattern of Misconduct, and assigned reentry code 3.

The applicant’s enlistment documents reflect the following law violations for the period November 1987 – December 1987:  speeding, failure to wear seatbelt, failure to appear in court, improper start from parked position, minor in possession of alcohol, issuance of a bad check and no vehicle insurance.

The records reflect the applicant was counseled by his chain of command as follows:  1 April 1989 – Dishonored checks, 29 September 1989 – Missing Formation, 23 October 1989 – Missing Formation, 23 October 1989 – Failure to Control Financial Affairs, 24 January 1990 – Writing Dishonored Check - 16 April 1990 – Failure to be at Formation, and 23 May 1991 – Failure to be at Appointed Place of Duty.

The records contain the minutes of the applicant’s appeal to the Army Discharge Review Board and reflect that the applicant was notified on 18 February 1998 of their denial of his appeal.  The minutes expand on the basis for the applicant’s request.  The applicant stated he was young (age 19) and from a small town.  He allowed his finances to get out of hand and aggravated the situation by a couple of bad decisions.  When he deployed to Desert Storm he gave a girlfriend his automatic teller machine (ATM) card so she could pay some of his bills.  The girlfriend instead emptied out his account, therefore checks he wrote while overseas bounced.  A family emergency caused his early return from Desert Storm whereby he found himself with no money due to the girlfriend’s actions.  He was in possession of a friend’s ATM card and began withdrawing money to use for personal expenditures.  The friend at first complained, but later agreed to a repayment plan.  The friend was no longer angry, but the commander still took action.  This action was that the applicant would receive casual pay to 
repay the friend.  On 28 August 1991 the applicant was notified by the commander of his intent to discharge him and on 23 September 1991 he was discharged.  The applicant states his belief that once the command made up its mind to discharge him things moved very fast and he was overwhelmed. He felt the command did not fully attempt to assist him with his financial problem. He had explained to his chain of command that he had owed more money than he had income to repay.  The command being knowledgeable of his financial situation did not assist him, but when a check would bounce or he was arrested they would then counsel him.

A certificate and orders indicate the applicant was awarded the Army Commendation Medal on 28 May 1991 for his service during Desert Storm.

On 13 April 2000 information was received regarding the applicant’s overpayment.  The record contained copies of correspondence sent from the applicant, his lawyer and congressman to DFAS, this Board and others regarding the overpayments and request for waiver of the debt.

Included in the information packet was a 7 March 2000 decision that was rendered by the Defense Legal Services Agency, Defense Office of Hearings and Appeals.  It found that the applicant had received a Selective Reenlistment Bonus (SRB) for a six-year enlistment.  He served less than 6 years resulting in a debt after adjustment of $1243.91.  The applicant was discharged on 23 September 1991, but received a final pay of $316.00 on 30 September 1991.  They ruled the applicant accepted that pay in good faith and therefore that amount is waived.  From March 1992 until October 1992 the applicant received payments totaling $5,380.31 after his separation.  They ruled that since the applicant was separated he should have questioned the payments, therefore that amount was not waived.  These decisions left the applicant with a total debt of $6,940.30.

Army Regulation 635-200, Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 was discharged due to a pattern of misconduct.  The financial misconduct while certainly the primary reason was not the only one.  The applicant was also counseled for other infractions.  The applicant’s pattern of misconduct began prior to his enlistment in 1987 and continued into 1991.  This continued misconduct supported the commander’s assessment that further rehabilitation effort of the applicant was not warranted.  Thus, his discharge under honorable conditions was appropriate and he has presented no evidence that justifies changing it.

2.  The information provided regarding the financial debt was very complete.  The Board agrees with the decision that the applicant should repay the remainder of the SRB and the overpayments that occurred after his separation. 

3.  Evidence in the form of an order and certificate supports the request for correction of the applicant’s record to reflect award of the Army Commendation Medal.

4.  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.

NOTE:  Request the ARBA Support Division takes the necessary action to correct the applicant’s record to reflect award of the Army Commendation Medal.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_eb_____  ___tap __  __klw ___  DENY APPLICATION

						Karl F. Schneider
				       Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029088	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.01	
2.		
3.		
4.		
5.		
6.