APPLICANT REQUESTS:  In effect, that the unearned portion of his Selective Reenlistment Bonus (SRB) that was recouped from him be given back to him.

APPLICANT STATES:  That the unearned portion of his SRB was recouped from him under the false assumption that his separation was due to his own misconduct.  He contends that separation due to weight control failure is not considered misconduct under Army Regulation 635-200, the regulation governing administrative separation of enlisted soldiers, or under the Uniform Code of Military Justice.  Therefore, the money was illegally collected from him.

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

On 18 January 1990 the applicant reenlisted in pay grade E-4 for a period of 6 years.  His reenlistment contract included a DA Form 4789, Statement of Entitlement to SRB.  That form stated in pertinent part that “I have been advised and understand that if I do not complete the full period of service, or if I do not remain technically qualified in MOS 91C [practical nurse], I will not get any more installments of the bonus, and I will have to pay back as much of the bonus as I have already received for the unexpired part of the period of obligated service.”

The applicant was promoted to pay grade E-5 and, on 22 March 1994, he was honorably discharged due to weight control failure.

Army Regulation 601-280 outlines the objectives of the SRB program and establishes the zones of eligibility.  It states, in pertinent part, that the purpose of the SRB program is to offer an incentive for retention of soldiers in critical skills necessary to meet the needs of the Army which are subject to change.  It further states that a soldier who voluntarily, or because of misconduct, fails to complete obligated service for which an SRB was paid will refund a percent of he SRB equal to the percent of obligated service not performed.

The Department of Defense Pay Manual (DODPM) provides statutory provisions for entitlements, deductions and collections and establishes Department of Defense policy on the pay and allowances of military personnel.  It is issued by the Comptroller of the Department of Defense in coordination with the Director, Defense Finance and Accounting Service.  Paragraph 10933 of the DODPM states “For purpose of recoupment of any unearned portions of enlistment or reenlistment bonuses, the term “who voluntarily or because of misconduct” includes (but is not limited to) members separated for the reasons listed below.”  Subparagraph “n” provides for the recoupment of unearned SRB monies in separations directed by the Secretary of the service concerned, which includes voluntary separations and separations for the convenience of the Government.  Subparagraph “n(6)” lists overweight/obesity and physical fitness as reasons for recoupment of unearned SRB monies.

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.  The applicant acknowledged on his SRB addendum that he would be required to pay back any unearned portion of his bonus if he was separated prior to completing his period of obligated service.  That addendum did not specify that he would be allowed to keep the unearned portion of his SRB if he was prematurely separated for specific reasons.

2.  The applicant is attempting to base his application on the actual wording of the regulation pertaining to the recoupment of SRB’s.  In that regulation it specifies that recoupment will be made for soldiers who are voluntarily separated or separated due to misconduct.  The applicant has chosen to believe that his discharge is categorized as misconduct.  However, the DODPM considers weight control failure to fall in the category of a voluntary separation. 

3.  It is reasonable to presume that a soldier who is placed on a weight control program and is given a weight loss plan (diet, exercise, etc.), who fails to lose weight has, by his failure, consented to his or her separation.

4.  In view of the preceding, the applicant’s separation for weight control failure was properly considered voluntary for the purpose of the collection of the unearned portion of his SRB monies.

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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director