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ARMY | BCMR | CY2003 | 2003089888C070403
Original file (2003089888C070403.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003089888

         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. Carl W. S. Chun Director
Mr. Jessie B. Strickland Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor Chairperson
Ms. Lana E. McGlynn Member
Ms. Yolanda Maldonado Member

         The applicant and counsel if any, did not appear before the Board.

         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 that the recoupment of his enlistment bonus be suspended.

2. The applicant states, in effect, that he enlisted in the Army in order to take advantage of the Loan Repayment Program (LRP) and after completing his training he was informed that his loans did not qualify for payment under the LRP. He goes on to state that he was given a discharge on the grounds of a defective enlistment/breach of contract by the Army and should not have to repay the enlistment bonus he received because it was through no fault of his own.

3. The applicant provides copies of his enlistment contract and the denial of payment of loans under the LRP.

CONSIDERATION OF EVIDENCE:

1. He enlisted in Columbia, South Carolina, in the pay grade of E-4 on 22 August 2001, for a period of 4 years, a cash enlistment bonus in the amount of $9,000, training as an early warning system operator, and participation in the LRP. He successfully completed his training and was transferred to Fort Stewart, Georgia, on 6 May 2002.

2. On 3 July 2002, the Total Army Personnel Command dispatched a letter to the applicant informing him that his loans did not qualify for payment under the LRP.

3. On 16 August 2002, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 7, for a defective enlistment agreement. He had served 11 months and 25 days of total active service.

4. In the processing of this case a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) in Denver, Colorado, to ascertain the extent of the applicant's debt. Officials at the DFAS indicate that on 11 December 2002, a letter was dispatched to the applicant informing him that he was in debt to the government in the amount of $4,578.17. Since that time penalty interest charges have been accruing that are in excess of $200.00.

5. Department of Defense (DOD) Pay and Allowances Entitlements Manual (also known as the DOD Pay Manual), sections 10931 through 10934, provides, in pertinent part that recoupment of unearned portions of enlistment and reenlistment bonuses is required when a member does not complete the term of their enlistment and are separated for a defective enlistment (includes erroneous and fraudulent enlistments).

6. Army Regulation 600-4 serves as the authority for the remission or cancellation of indebtedness for enlisted members. It states, in pertinent part, that the objective of remission or cancellation is to remit or cancel debts that are considered to be unjust.

7. Army Regulation 601-210 provides the policies, criteria and procedures for enlistment in the Army. It provides, in pertinent part, a bonus will be paid in one lump sum up to a maximum of $5,000, to the soldier upon arrival at his first duty station. Bonus award levels in excess of $5,000 will be paid in equal increments every 3 months after entitlement to the lump sum payment and all incremental payments will be made within 1 year.

DISCUSSION AND CONCLUSIONS :

1. 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 this requirement.

2. The applicant's enlistment bonus was paid based on his contractual obligation to serve 4 years in a specific specialty. While the applicant may have been misled in regards to his eligibility under the LRP, that issue had nothing to do with enlistment bonus entitlements or obligations. The applicant elected to accept discharge and in doing so, he lost his entitlement to the unearned portion of his enlistment bonus.

3. The applicant has failed to show through the evidence submitted with his application or the evidence of record, any basis for suspending or remitting the debt owed the government for the unearned portion of his enlistment bonus.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ YM __ __ LEM ___ __ RO ___ DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.





                  Raymond V. O’Connor
                  CHAIRPERSON




INDEX

CASE ID AR2003089888
SUFFIX
RECON
DATE BOARDED 2003/11/25
TYPE OF DISCHARGE HD
DATE OF DISCHARGE 2002/08/16
DISCHARGE AUTHORITY AR635-200
DISCHARGE REASON
BOARD DECISION (DENY)
REVIEW AUTHORITY
ISSUES 1.128.1000 293/REMIT DEBT
2.
3.
4.
5.
6.


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