RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060008382 


	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

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan A. Powers

Member

Mr. Qawiy A. Sabree

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 his Separation (SPD) Code (Item 26) on his DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed to a code that would afford him a waiver for repayment of his enlistment bonus.

2.  The applicant states, in effect, because he was getting a medical discharge, he was promised he would not have to repay his enlistment bonus.  He contends he had an allergic reaction to Methaquin (sic) [most probably mefloquine], the malaria pills he was taking, which provoked his delicate state of mind.  Plus, he fractured his foot.  He has spent thousands of dollars on holistic therapy trying to find peace of mind.  He adds his fiancée left him because she did not like the way the military affected him.  Now he does not have a job or the money to repay his bonus.  He states that he served in Afghanistan and that it is immoral and unjust to ask more of him.

3.  The applicant provides:

	a.  A copy of a letter from the Disabled American Veterans (DAV) advising him the Department of Veterans Affairs rated him 20 percent disabled due to a fractured foot and lumbosacral sprain.

	b.  A statement from Experian showing the collection status on his Department of Defense debt.

	c.  A letter of support from a friend.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 May 2003, the date of his discharge from the Army.  The application submitted in this case is dated 2 June 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 3 January 2002, the applicant enlisted in the Regular Army for a period of 3  years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).

4.  The applicant's DA Form 3286-66 (Statement of Understanding U.S. Army Incentive Program) shows he enlisted for Options 9B (U.S. Army Station/Unit/ Command/Area Enlistment Program) and Option 9C (U.S. Army Incentive Program Cash Bonus - $5,000.00).  The applicant authenticated DA Form 3286-66 indicating he understood the provisions of the bonus program.

5.  On 17 February 2003, the applicant was referred for mental health evaluation. His unit commander indicated after several counseling sessions during which he noticed significant issues with the applicant's attitude, performance, and abnormal behavior, he referred him for a mental health evaluation.

6.  On 18 February 2003, the applicant underwent a psychiatric examination and was diagnosed on Axis I with an adjustment disorder and, on Axis II with a personality disorder, not otherwise specified.  The examiner recommended that the applicant be discharged for his personality disorder as soon as possible.  He also scheduled the applicant for ongoing follow-up treatment, and recommended a health and welfare inspection of his quarters and removal of all weapons.  It was further recommended he be indefinitely restricted from handling arms and munitions.  There were no other service medical records available for further review.

7.  On 6 May 2003, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 5-13, by reason of a personality disorder.  He was assigned an SPD code of "JFX" and credited with 1 year, 5 months, and 6 days of active duty service.

8.  The applicant's file did not contain evidence of a debt assessed against him.  However, he provided an Experian Credit Service report showing that an initial debt of $2,379.00 to the Department of Defense was in a collection status as of December 2004.  Total amount owed to date is $2,448.00.

9.  In response to a request by this analyst, the Defense Finance and Accounting Service (DFAS) provided a copy of the applicant's Bonus Recoupment Computation Sheet showing the computations for recoupment of the unearned portion of his bonus.  His debt was established as $2,379.88.

10.  The applicant provided a copy of a letter from the DAV advising him that the DVA had granted service connection for a left foot fracture and lumbosacral sprain, with an overall combined rating of 20 percent.

11.  The applicant provided a letter from a friend who knew him before he joined the Army.  His friend indicates that since his discharge, the applicant is antisocial, secludes himself, sleeps a lot, and appears to be disconnected.  He has difficulty relating to other individuals.  He states that the applicant insists that his problems began after he started taking malaria pills, and his (the applicant's) theory is that it started some imbalance in his brain.  According to the applicant's friend, the applicant attends a holistic healing center at his own cost and goes through some strange colon cleansing rituals.

12.  In processing this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Department of the Army, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  This opinion states that bonuses are routinely recouped when the separation occurs through voluntary actions or through the Soldier's misconduct in accordance with Army Regulation 601-280, paragraph 5-13 through 5-15.  Paragraph 5-13 is generally clear regarding recoupment for misconduct and voluntary failure to complete obligated service.  It is not clear however on recoupment provisions for reasons in which the Soldier was not involved in misconduct or voluntary separation.  Paragraph 5-14b(4) 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."  Army Regulation 601-280 is currently under revision.  The policy proponent is staffing the recoupment procedures in paragraph 5-13 to generally be in concert with paragraph 5-15b(4).

13.  Further, the Department of Defense Financial Management Regulation (Volume 7A, Chapter 9, section 090503 M (11) states that personality disorder separations are among those listed conditions that are subject to recoupment, however, had the case been submitted through command channels to request a waiver of recoupment by Headquarters (HQ) DA, such waiver would certainly have been approved by this office.  As a result of the mitigating factors in the applicant's case and the pending revisions to Army Regulation 601-280, G-1 recommended that the Board find in favor of the applicant and grant relief.

14.  On 14 March 2007, the applicant was provided with a copy of the advisory opinion for review and rebuttal.  To date, the applicant has not responded.

15.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40 that interferes with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness, chronic seasickness, enuresis, severe nightmares, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to perform military duties is significantly impaired. 

16.  Army Regulation 635-5-1 (Separation Program Designator (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. This regulation, in pertinent part, stipulates that the SPD code of "JFX" will be assigned for individuals being involuntarily separated for a personality disorder (Chapter 5-13, Army Regulation 635-200.)

17.  The DFAS/SPD Code/Pay Recoupment Cross Reference shows that bonus recoupment is required for individuals separated with SPD code of JFX (personality disorder).  The Department of Defense Financial Management Regulation (Volume 7A, chapter 9, section 090503 M (11), states that personality disorder separations are among those listed conditions that are subject to recoupment.

18.  Army Regulation 601-210 (Regular Army (RA) and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve.  Chapter 5-13 prescribes polices and instruction on administration of the Enlistment Bonus (EB) program.  It states, in pertinent part, that the Enlist Bonus is an enlistment incentive offered to those enlisting in the Regular Army for duty in a specific military occupational specialty (MOS.)  It also stipulates that persons who do not complete their term of enlistment voluntarily or because of misconduct will be required to refund the percentage of the bonus that corresponds to the un-expired part of the total enlistment period (such as the unearned portion of the bonus).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that Item 26 on his DD Form 214 be changed to one that would waiver repayment of his enlistment bonus.

2.  The applicant was diagnosed with an adjustment disorder and a personality disorder, not otherwise specified.  He was involuntarily discharged under the provisions of Chapter 5-13, Army Regulation 635-200, by reason of a personality disorder.  He was assigned an SPD code of JFX.  This SPD code requires repayment of the unearned portion of his enlistment bonus even though the applicant did not voluntarily request discharge and he was not discharged because of misconduct.

3.  DFAS assessed a debt of $2,379.88 (pro-rata share) against the applicant for recoupment of his bonus based on his SPD Code of JFX.  This debt has gone to collection status at a total of $2,448.00.  

4.  The advisory opinion from G-1 recommends that the applicant be granted relief due to the mitigating factors in the applicant's case and due to the pending revisions to Army Regulation 601-280.  Further, had the applicant's command petitioned HQDA for a waiver of recoupment of his bonus, it would certainly have been approved.  

5.  Based on the Army G-1 opinion and the in the interest of justice, it would now be appropriate to correct the record to show that applicant requested and was granted a waiver of recoupment of his unearned portion of his bonus incentive prior to his discharge from the Army.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 May 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 May 2006.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__ji____  __sap___  __qas___  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 and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  showing the applicant requested and was granted a waiver of recoupment for the unearned portion of his bonus incentive prior to his discharge from the Army; and

	b.  showing that any recoupment action taken is erroneous and any funds collected will be reimbursed.




							John Infante
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060008382
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
128.1000
2.

3.

4.

5.

6.