RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 November 2004
      DOCKET NUMBER:   AR2004100335


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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, correction to the separation program
designator (SPD) entered on his separation document (DD Form 214).

2.  The applicant states, in effect, that a change to the SPD code in
question is necessary in order for the Defense Finance and Accounting
Service (DFAS) to remit the debt he incurred based on his receipt of a
Selective Reenlistment Bonus (SRB).  He claims that he received a
reenlistment bonus and orders to Fort Carson, Colorado in 2002.  However,
upon arrival, he was sent back to Fort Bragg, North Carolina due to an
error in the assignment location.  He states that once he arrived back at
Fort Bragg, it was determined that his Basic Active Service Date (BASD)
prohibited him from receiving a SRB.  He states the erroneous SRB payment
and the subsequent two permanent changes of stations were though no fault
of his own.  He claims he cleared the post prior to his discharge and was
informed that he incurred no debt as a result of the SRB he received.

3.  The applicant provides the following documents in support of his
application:  Installation Clearance Record (DA Form 137-2-R), dated 25
September 2002; DFAS Letter, dated 20 October 2003; DFAS Letter, dated 8
October 2003;
DD Form 214; and the Applicant’s Correspondence with DFAS with supporting
documents.

CONSIDERATION OF EVIDENCE:

1.   On 4 March 2002, while serving in Europe, the applicant reenlisted for

3 years.  In a Statement of Entitlement to Selective Reenlistment Bonus
(DA Form 4789) the applicant completed in connection with his reenlistment,
he stated that he had been advised and understood that if he did not
complete the full period of service, he would not receive anymore
installments of the bonus and would have to pay back as much of the bonus
as he had already received for the unexpired part of the period of
obligated service.

2.  On 16 October 2002, the applicant was honorably separated under the
provisions of chapter 7, Army Regulation 635-200, by reason of defective
enlistment agreement.  The DD Form 214 he was issued upon his separation
shows he was assigned a SPD code of KDS based on the authority and reason
for his separation.  The applicant authenticated this document with his
signature in Item 21 (Signature of Member Being Separated).

3.  On 28 April 2003, the DFAS notified the applicant he was indebted to
the government in the amount of $2,097.49 based on recoupment of the
unearned portion of his SRB.

4.  On 8 October 2003, in response to the applicant’s request for waiver of
the debt, the DFAS informed the applicant that the Comptroller General had
determined that any debt that was legal and proper may not be considered
for waiver.

5.  In connection with the processing of this case an advisory opinion was
obtained from the Chief, Enlisted Career Systems Division, Office of The
Deputy Chief of Staff, G-1.  This personnel official indicates that the
applicant’s contract was defective through no fault of his own and was the
result of administrative errors on the part of Army Service
representatives.  He further stipulated that a defective service
computation contained on a Statement of Service
(DA Form 1506) pertaining to the applicant resulted in his being awarded a
SRB, which was not legal and proper at the time of the reenlistment.  At
the time, Army personnel officials incorrectly computed the applicant’s
BASD and when it was corrected, he was no longer eligible for the SRB.  The
applicant concurred with the advisory opinion on 21 May 2004.

6.  Army Regulation 635-200 sets for the policies for the separation of
enlisted personnel of the Army.  Chapter 7 provides the authority,
criteria, and procedures for the separation of soldiers because of
minority, erroneous enlistment,
reenlistment or extension of enlistment, defective enlistment agreement, or
fraudulent entry.  Paragraph 7-16 contains guidance on separation for
defective or unfulfilled enlistment or reenlistment agreements.  It states
that a defective enlistment agreement exists when the soldier is eligible
for enlistment in the Army but does not meet the prerequisites for the
option for which enlisted.  This situation exists when the following
occurs:  a material misrepresentation by recruiting personnel, upon which
the soldier reasonably relied, resulting in the soldier being induced to
enlist for that option; an administrative oversight or error on the part of
the recruiting personnel, in which the soldier did not knowingly take part;
in failing to detect that the soldier did not meet all the requirements for
the enlistment commitment.

7.  The separation regulation further states that when it is determined
that an enlistment is defective or cannot be fulfilled, a Regular Army
soldier serving on a second or later enlistment, having been discharged
from a previous enlistment before ETS to re-enlist, may request separation.
 The separation will be effective when the active service in the current
enlistment and last preceding enlistment equals the period stated in the
preceding enlistment contract or agreement.
8.  The Department of Defense Financial Management Regulation (DODFMR),
Volume 7, provides military pay policy.  Paragraph 090501 contains the
legal requirements for the recoupment of reenlistment bonuses.  It states,
in pertinent part, that reenlistment bonus will be recouped in cases where
the member voluntarily does not complete the enlistment for which the bonus
was paid.  Paragraph 090503 provides specific reasons for recoupment, which
include a member separated by reason of defective enlistment.

9.  Army Regulation 635-5-1 Army Regulation (AR) 635-5-1 (SPD Codes)
provides the specific authorities (regulatory or directive), reasons for
separating soldiers from active duty, and the SPD codes to be entered on
the DD Form 214. The SPD code of KDS is the appropriate code to assign
soldiers separated under the provisions of chapter 7, Army Regulation 635-
200, by reason of defective enlistment agreement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was honorably separated
under the provisions of chapter 7, Army Regulation 635-200, by reason of
defective enlistment agreement on 16 October 2002.   It further shows that
based on the authority and reason for his separation, he was properly
assigned a SPD code of KDS and RE-3 code in accordance with the applicable
regulation.

2.  Notwithstanding the recommendation of the Army G-1 that the applicant’s
debt be remitted because the error in his BASD that resulted in his not
being eligible for the SRB was caused by errors made by Army personnel and
recruiting officials and was through no fault of the applicant, by law and
regulation, recoupment of a reenlistment bonus is required from any member
who is voluntarily separated by reason of a defective enlistment.

3.  The evidence of record in this case further confirms the applicant
voluntarily separated by reason of defective enlistment agreement.  There
is no indication that the applicant attempted to resolve the issue and
remain serving for the term of his enlistment.  Therefore, given his
separation was voluntary; there is an insufficient evidentiary basis to
support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEA ___  _MHM___  _JKR ___  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.





               _MELVIN H. MEYER__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100335                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2002/10/16                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Defective Enlistment                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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