MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           22 February 2001                  
	DOCKET NUMBER:   AR2000042180

	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. Edmund P. Mercanti		                          Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		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 she be given separation pay, and that her student loans be paid under the Loan Repayment Program (LRP).

APPLICANT STATES:  In pertinent part, that she did not receive separation pay because she was denied completion of her enlistment, despite her request to do so at her elimination board.  In addition, it was her fellow soldiers who were unreasonable, not her.  Many of the actions taken against her were due to misinformation provided to her commander by those soldiers and noncommissioned officers who were sympathetic with those soldiers.  As for payment of her student loans under the LRP, she had made several calls to people who administer the LRP and was told it was too late for her to use the LRP.  They would not make an exception for her.  The applicant also comments on the loss of a large portion of her health records and one entry in her health records which she believes is in error.

In support of her application she submits copies of counseling statements given to her and sworn statements documenting alleged misconduct committed by her.  These documents are annotated by her with her version of what transpired at the time.  She also submits copies of her student loans and documents which show that those loans are in default and being collected by collection agencies.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was derived from documentation provided by the applicant herself, and the Army Discharge Review Board (ADRB) case summary.

She enlisted in the Regular Army on 17 June 1992, reenlisted on 29 February 1996, and again reenlisted on 30 April 1998.  The highest grade she achieved was pay grade E-4.  She had executed an LRP addendum in conjunction with her first enlistment.

On 12 March 1999 the applicant’s commander read her company level nonjudicial punishment (NJP) which he was offering her in lieu of trial by court-martial.  The offenses for which the NJP was being offered were disrespect toward a superior commissioned officer by once saying “You are wasting my time, because I’m not going to any appointment”, and by saying at a different time “Are you ready for a fight?  Well, you better be, since you wrote all that shit about me.”  The NJP was also for disobeying a lawful command and a lawful order, and for being disrespectful towards a warrant officer.

The applicant refused the NJP and demanded trial by court-martial.  Her commander then opted to drop the NJP and initiate action to administratively separate the applicant due to a pattern of misconduct, based on the commander’s discussion of the incident with the battalion commander.  In an e-mail from the applicant’s commander to the battalion commander, the applicant’s commander stated that he believed that the applicant had mental problems and had her escorted to the mental health clinic for an evaluation.  Upon arrival at the mental health clinic, the applicant began to yell and had to be ordered to depart the clinic without being evaluated.  When the applicant was receiving legal counsel by an officer of the Judge Advocate General Corps (JAGC), she came out of the lawyer’s office yelling and wouldn’t obey the order by the JAGC officer to be at ease.  She was ordered to depart the legal offices without completing her counseling.

While the Board was not furnished a copy of the administrative board proceedings which resulted in the applicant’s separation, her DD Form 214 shows she was given a General Discharge for misconduct on 7 October 1999.

On 8 March 2000 the ADRB upgraded the applicant’s discharge to fully honorable based on her two honorable discharges prior to her last reenlistment.

The LRP is an educational enlistment incentive which provides for payment of 33 1/3 percent or $1,500.00 of the unpaid principal of eligible student loans for each year of active duty a soldier completes.  Since the Army will only pay the lending institution under the LRP, loans which are in default are not payable by the Army.

Title 10, United States Code, section 1174(b), Regular Enlisted Members, states that a regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) of this section unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  While the applicant had over 6 years of continuous active duty at the time of her discharge, the nature of her separation, misconduct, has been determined by the Secretary not to warrant separation pay.  The Board does not disagree with that determination.

2.  While not requested specifically by the applicant, the Board considered whether the reason and authority for the applicant’s discharge should be changed, since that would entitle her to separation pay.  In that regard, the Board considers the severity and multiplicity of the applicant’s misconduct to warrant a discharge for misconduct.  While the applicant provides reasons why she acted the way she did, the fact remains that her actions constituted violations of the Uniform Code of Military Justice (UCMJ).

3.  The documentation provided by the applicant makes it difficult to ascertain exactly what occurred with her student loans.  However, it would appear that she didn’t request that her student loans be paid until her third enlistment, when the loans were already in default.  Since the applicant had already completed the enlistment for which she had been given the LRP and the loans were in default, they were not payable by the Army.  While it is unfortunate that the applicant is being denied these payments, she has not provided the Board with any reason why she was unable to submit her loans for payment in a timely fashion.  

4.  The applicant’s comments concerning her health records do not constitute a request to the Board.  However, if she had made a request pertaining to her health records the Board would not have been able to consider that request since her health records were not available for the Board to review.

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

___rvo  __  ___sk___  ____tsk__  DENY APPLICATION

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

INDEX

CASE ID	AR2000042180	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010222	
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.	128.05	
2.		
3.		
4.		
5.		
6.