RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 October 2005
      DOCKET NUMBER:   AR20040009910


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 recoupment of the unearned
portion of her enlistment bonus be waived.

2.  The applicant states that the discharge was not her fault.  She was the
victim of a sexual assault by a drill instructor, which led to emotional or
psychiatric problems so severe that she could not serve.

3.  The applicant provides copies of her DD Form 214 (Certificate of
Release or Discharge from Active Duty), a leave and earnings statement
(LES) and a letter from the Garrison Commander, Aberdeen Proving Ground,
Maryland to her Congressman to the effect that the applicant was both the
victim of a sexual assault and a witness in the court-martial proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she enlisted for a $4,000.00
bonus and training in military occupational specialty (MOS) 52D10.  Her
enlistment contract, DA Form 3286-66 (Army Incentive Enlistment Program),
states, in pertinent part, that if she failed to complete training in her
chosen MOS she would lose entitlement to the enlistment bonus and that she
must stay qualified in that incentive MOS for the duration of the initial
enlistment.

2.  She entered active duty on 23 January 2003, completed training and was
awarded MOS 52D10.

3.  An 18 December 2003 psychiatric evaluation produced a diagnosis of
Borderline Personality Disorder which represented a deeply ingrained,
pervasive maladaptive traits, and a predisposition to poor judgment and
impulse control.  Separation from the service was recommended.

4.  The commanding officer recommended separation with an honorable
discharge.  The applicant consulted with counsel and waived her rights and
the separation authority directed that the applicant be separated.

5.  On 3 February 2004 the applicant was separated with an honorable
discharge for the convenience of the government due to personality disorder
under the provisions of Army Regulation 635-200, paragraph 5-13.

6.  In a 30 August 2005 telephone conversation, Ms. L____ B____ of the
Defense Finance and Accounting Service (DFAS), Denver, Colorado related
that the applicant's debt for the unearned portion of her enlistment bonus
had origionally been $2,105.58 and that the payments were up to date.  The
applicant's request for a waiver had been disapproved in July 2004.  This
conversation falls under the agency's ex parte communication policy;
therefore, record of the above telephone conversation was forwarded to the
applicant for comment or rebuttal.  No response was received.

7.  During the processing of this case an advisory opinion was obtained
from the Office of the Deputy Chief of Staff, G-1.  The Chief, Incentives
and Budget Branch, Enlisted Accessions Division noted that bonuses are
routinely recouped when the Soldier is separated through voluntary actions
or through the Soldier’s misconduct.  The governing directive, Army
Regulation 601-280, paragraph
5-13 is not really clear concerning recoupment when the individual Soldier
is not at fault.  Paragraph 5-14b states that “a Soldier may not forfeit
any portion of the bonus when the Soldier is no longer classified in the
bonus specialty for any of the following reasons”: (4) “When injury,
illness or other impairment occurs and is not caused by misconduct”.  A
revision to Army Regulation 601-280 is currently being staffed to bring
paragraph 5-13 in concert with paragraph 5-14b(4).  Approval of the
applicant's request was recommended.  A copy of the advisory opinion was
forwarded to the applicant and she concurred.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not complete her enlistment in the MOS for which she
received an enlistment incentive.  Therefore, recoupment of the enlistment
bonus was deemed appropriate.

2.  However, there is a clear injustice in that the diagnosed personality
disorder did not arise from the applicant's own volition.  Furthermore, she
surely did not intend to become the victim of a serious crime, which
undoubtedly also influenced her behavior.

3.  Based on the advisory opinion and in the interest of justice it would
now be appropriate to correct the applicant’s record to show that based on
her reason for separation her bonus was erroneously identified for
recoupment action with a debt established in the amount of $2,105.58 based
on the unearned portion of the monies received.

4.  The applicant’s separation was not voluntary and was not based on
misconduct.  Accordingly as recommended in the advisory opinion the
applicant should not be required to forfeit that portion of the bonus
already received.  The applicant should also be refunded any funds already
recouped.

BOARD VOTE:

__JEA___  __JAM__  __LMD__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  showing that the debt in the amount $2,105.58 for recoupment of
the unearned portion of the enlistment bonus was erroneously established;
and

      b.  any funds already collected pertaining to this erroneous debt be
refunded to the individual concerned.






            _    James E. Anderholm_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009910                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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