RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060010985 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Paul M. Smith

Member

Mr. Jerome L. Pionk

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his debt of $4,348.32 to the United States Government be forgiven due to financial hardship.

2.  The applicant states, in effect, that he did not know about this debt because of the turmoil taking place in his life.  [He does not say when he learned of the debt.]  At the time, he viewed everything as an attack on him, driving him to the brink of committing suicide, which he attempted several times.  He further states that his mental condition is still affected, but that is not the basis for this request.  His request is based strictly on hardship.  He is compensated at sixty percent from the Veterans Affairs (VA) for service connected conditions which amount to approximately $860.00 a month.  His monthly expenses are: $225.00 for rent; $67.00 for water; $56.00 to $80.00 for electricity; $110.00 for telephone; $114.00 for vehicle and renter's insurance.  He must use what is left for food, vehicle repairs and gasoline.  He says that he travels 61 miles roundtrip each day for school and has been told that if he does not pass his summer classes his vocational-rehabilitation benefits will cease.  He also contends that he was not absent without leave but rather was in the hospital. 

3.  The applicant provides a copy of the first page of his application for Remission or Cancellation of Indebtedness (DA Form 3508); his hospital discharge for 
27 June 2006; VA Letter, To Whom it May Concern, dated 28 June 2006; VA Decision for Service Connection, dated 5 December 2003; and Department of Defense Claims Appeal Board Decision, dated 17 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 September 2001, the date his discharge from active duty.  The application submitted in this case is dated 26 July 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 11 June 1984, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 13B1O (Cannon Crewmember).

4.  On 10 April 1987, the applicant was released from active duty and transferred to the United States Army Reserve (USAR) for duty in MOS 97F1O (Food Service Specialist) with the 3271st Hospital, Charleston, South Carolina.  He had completed 2 years and 10 months of creditable active duty.

5.  On 28 July 1991, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm.  He performed duty in MOS 88M2O (Motor Transport Operator) with the 702nd Transportation Battalion in Southwest Asia.  He was released from active duty on 10 April 1992, and transferred to the 941st Transportation Company, Charleston, South Carolina.  He had completed 8 months and 13 days of creditable active duty and attained the rank of sergeant, pay grade E5.

6.  On 8 April 1998, the applicant was promoted to staff sergeant, pay grade E6, in MOS 88M3O. 

7.  On 7 June 1998, the applicant reenlisted in the USAR for 6 years.  He had completed 12 years, 7 months and 19 days of inactive service.

8.  On 24 January 1999, the applicant was assigned to the 660th Transportation Company, Cadiz, Ohio, for duty as an assistant truck master.

9.  On 22 March 1999, the applicant was charged with failure to maintain control of his vehicle and for driving under the influence of alcohol.  However, these charges were dismissed without prejudice due to the State of Ohio failing to meet its burden of proof to establish that the chemical test was conducted within 
2 hours of operating the vehicle.  The applicant pled guilty to reckless operation. His sentence included drug/alcohol evaluation within 30 days and 12 months probation. 

10.  On 29 September 2000, the applicant went absent without leave (AWOL) for 3 days.  There is no available record of punishment.

11.   On 6, 7, 8, and 9 October 2000, the applicant issued five checks totaling $1,300.00, while knowing that his bank account did not have sufficient funds to pay them.  On 22 January 2001, he pled no contest before the Belmont County Court, St. Clairsville, Ohio, on all five counts, and was sentenced to 30 days confinement on each count to be served consecutively, suspended on condition that he (1) pay costs of $117.40; (2) not violate any laws of the State of Ohio or any Municipality for 1 year; and (3) make restitution in the amount of $1,300.00.  The case was set for a bond review on 30 January 2001; however, the applicant failed to appear.  On 31 January 2001, the court issued a bench warrant for the applicant and commenced with forfeiture proceedings.  A bond was set at $2,500.00.  

12.  On 10 October 2000, the applicant went AWOL for 3 days.  There is no available record of punishment.

13.  On 15 November 2000, The Municipal Court, Steubenville, Ohio, charged the applicant with (1) knowingly using, or possessing with purpose to use, drug paraphernalia; (2) for breaking the glass in his holding cell at the Jefferson County Justice Center; and (3) knowingly obtain, possess, or use crack cocaine, a schedule II controlled substance.

14.  On 14 December 2000, he appeared before the court.  He was found guilty as charged, and sentenced to 30 days confinement and court costs for the first two charges and to 60 days confinement and court costs for the third charge.   The sentences to confinement were to run concurrently. 

15.  On 20 January 2001, the applicant went AWOL for 17 days.  There is no available record of punishment.

16.  On 11 March 2001, the applicant went AWOL for 23 days.   There is no available record of punishment.

17.  On 5 April 2001, the applicant’s commander recommended separation from the USAR under the provisions of Army Regulation 635-200, Chapter 14, for conviction by civil court, patterns of misconduct, and commission of serious offenses.   

18.  On 17 April 2001, the applicant consulted with counsel concerning his rights. He requested consideration of his case by an administrative separation board and to appear before this board.   He elected to make a statement in his own behalf and requested consulting counsel and representation by military counsel and civilian counsel at no expense to the Government.

19.  On 17 April 2001, the applicant stated that on 2 April 2001, at the VA Medical Center, Charleston, South Carolina, he had been diagnosed with having a mood disorder and obsessive compulsive symptoms which are most likely part of his personality structure.  He further stated that this illness had manifested within the previous 6 months which made it service connected.  He also stated that he was currently on medication for these illnesses and was told that he would have to take this medication for the rest of his life.

20.  On 14 July 2001, a board of officers convened to consider the applicant for elimination under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The applicant was absent but his counsel was present.  The board recommended that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

21.  On 4 May 2001, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

22.  Accordingly, on 21 September 2001, the applicant was discharged under other than honorable conditions.  He completed 6 years, 10 months and 9 days of creditable active service; 11 years, 1 month and 26 days of creditable inactive service; and had 46 days of lost time due to AWOL and civilian confinement.

23.  On 5 December 2003, the VA awarded service connection for mood disorder with an evaluation of fifty percent effective 22 September 2001.  The reasons noted for this decision included occupational and social impairment with reduced reliability and productivity due to such symptoms as: flatten affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining work and social relationships.  However, there was no evidence of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships, as required for an evaluation exceeding fifty percent.

24.  The Claims Appeal Board Decision, dated 17 July 2006, stated that the applicant erroneously received active duty pay for periods in 2001 when he was in an AWOL status.  The Defense Finance and Accounting Service (DFAS) discovered the error in September 2001.  The applicant became aware of the debt shortly after his discharge, that same month.  The debt totaled $5,440.13.  At discharge, the applicant was entitled to receive $1,091.81.  This amount was applied against the debt, reducing the indebtedness to the Government to $4,348.32.  The record indicates that the applicant did not submit a written request for waiver of this debt until 31 March 2006.  

25.  The Claims Appeal Board Decision stated that under 10 United States Code § 2774(b)(2), they may not waive collection of erroneous payments to a member of the uniformed service if application for waiver is received after the expiration of 3 years immediately following the date on which the erroneous payment was discovered.  The member insisted that he cannot be deemed to know about the indebtedness in 2001 because of his mental condition, incapacity or illness at that time.  Even where mental condition may be a relevant consideration, a waiver applicant must demonstrate by clear and convincing evidence that he was in such poor health that it was unlikely that he knew or could have known, or that he was otherwise unable to attend to ordinary financial affairs.  The board determined from its review of the evidence submitted by the applicant that he could attend to his ordinary financial affairs during the period between 2001 and 2004.  The board further stated that financial hardship is not an appropriate basis for waiver of this debt.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged for misconduct, a part of which was for AWOL. He was erroneously paid for these lost days.  He was informed of his debt to the United States Government in the same month that he was discharged.  He delayed making a request for a waiver of this debt for almost 5 years, contending that his mental condition and turmoil in his life at the time caused him to not know about the debt.  

2.  The Claims Appeal Board clearly identified that the applicant attended to his ordinary financial affairs during the 3-year period following his discharge.

3.  The VA noted in their evaluation that the applicant's impairment did not render him unable to function independently in most areas concerning work, school, family relations, judgment, and thinking. 

4.  The applicant now contends that he cannot pay this debt due to financial hardship.  He provides financial data but no supporting documents.

5.  Due to the applicant's late request for appeal, it could not be acted upon by the Claims Appeal Board.  However, the board also noted that financial hardship is not an appropriate basis for granting a waiver of this debt.
6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 September 2001; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
20 September 2004  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JLP  __  __WDP__  __PMS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



__   William D. Powers_____
          CHAIRPERSON


INDEX

CASE ID
AR20060010985
SUFFIX

RECON
 
DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.