RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 May 2007
      DOCKET NUMBER:  AR20060012535


      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      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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,

      a.  a change to his DD Form 214, Certificate of Release or Discharge
from Active Duty, to omit time lost he accumulated due to AWOL (absence
without leave) and payment for this time;

      b.  payment for 21.5 days accrued leave for which he was not paid on
his discharge from the Army;

      c.  reimbursement for taxes that were deducted from his pay at
discharge;

      d.  reimbursement for money he contributed to the Montgomery GI Bill
Program which he feels he is entitled to because of an inadequate finding
by the Army Discharge Review Board (ADRB);

      e.  reimbursement for money (money to which he was entitled to in the
form of an enlistment bonus) that was recouped from him;

      f.  correction of his rank and pay grade to private first class, E-3,
and correction of his date of rank to 21 May 2001 (sic) [actually 26 May
2001];

      g.  correction of his net active service to 1 year and 6 months; and

      h.  addition of the Excellence in Armor Award he received while he
was on active duty to his DD Form 214.

2.  The applicant states, in effect, he was given an upgrade but there
are errors on the re-issued DD Form 214.  When he received his new
documents he was told to check them and if they were wrong to point out
the errors and they would be corrected and resent to him.  Because of the
changes in his favor, he was told to contact the Defense Finance and
Accounting Service (DFAS) for money that was taken from him and may be
owed him due to basic pay that was taken from him for 5 or 6 months, the
bonus money which was taken from him, as well as the taxes which were
collected, and the money he had contributed to the Montgomery GI Bill
Program.  This, he states, is a lot of money that was taken from him in a
round about figure of about $14,000.00 to $17,000.00.
3.  He continues, in effect, that he received his DD Form 214 and found
errors and he would like to have these corrected and he would like to have
his pay corrected also.  He just wants to be done fair and right, as he did
for his country.

4.  He concludes by stating, in effect, he's trying to get his records
right so he can reenlist and get back what he served honorably for and what
was taken from him. He loves his country and what he does for it.  He just
wants to be done right with his request, and amount of money the Government
has taken from his family and get it back without the issue of discharge
because it was inadequate.

5.  The applicant has sought the assistance of his Member of Congress
(MOC).  The MOC provided a summary statement as follows:  "He needs to get
his "DD Form 214 corrected and wants the back pay owed to him by the
Government."

6.  In support of his application, the applicant provides a copy of a
letter he received from the Defense Finance and Accounting Service (DFAS)-
Denver Center, Denver, Colorado, dated 21 June 2006; a copy of a letter
addressed to him from the Army Review Boards Agency, St. Louis, Missouri,
dated 9 June 2006; a copy of his now-voided DD Form 214, Certificate of
Release or Discharge from Active Duty, with an effective date of
discharge of 23 July 2002; a copy of his Honorable Discharge Certificate;
and a copy of his DD Form 214 with the upgraded characterization
of his service, the changed separation code, and the changed narrative
reason for his separation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the US Army Reserve, in the Delayed
Entry/Enlistment Program, on 17 January 2001.   He enlisted in the
Regular Army for 3 years on 31 January 2001.

2.  A completed DA Form 3286-59, Statement for Enlistment, United States
Army Enlistment Program, US Army Delayed Enlistment Program, shows the
applicant enlisted for the following options:  9A – US Army Training
Enlistment Program, and 9C, US Army Incentive Enlistment Program (Cash
Bonus).  The applicant was assured training in the military occupational
specialty 19K, Armor Crewman, and an $8,000 cash bonus.

3.  A completed DA Form 3286-66, Statement of Understanding, United States
Army Incentive Enlistment Program, shows the applicant was aware he was
qualified for an $8,000 cash bonus to be paid in accordance with DA
instructions. Item 5 of this form described the statement and conditions
which applied to the incentive programs he accepted on his enlistment.

4.  The applicant authenticated a DD Form 2366, Montgomery GI Bill (MGIB)
Act of 1984, and acknowledged that his basic pay would be reduced $100 per
month, or the current monthly rate, for each of the first 12 full months of
active duty and this basic pay reduction could not be refunded, suspended,
or stopped.  He acknowledged he must complete 36 months of active duty
service before he was entitled to the current rate of monthly benefits for
a period of 36 months.  He also acknowledged that he must receive an
honorable discharge for service establishing entitlement to the MGIB.

5.  A DD Form 553, Deserter/Absentee Wanted by the Armed Forces, dated
27 July 2001, shows the applicant absented himself from his unit without
proper authority on 27 June 2001.

6.  On 27 July 2001, a DD Form 458, Charge Sheet, was prepared by the
commander, Company A, Headquarters Command, Fort Stewart, Georgia.  Charges
were preferred against the applicant for his having departed AWOL from his
unit and remaining so absent until . . . . . . [Note:  The date was to be
inserted on the applicant's return on some future date].

7.  A DA Form 4187, Personnel Action, dated 27 July 2001, shows the
applicant's status was changed from AWOL to dropped from the rolls of his
unit with an effective date of 27 July 2001.

8.  According to a Report of Return of Absentee, the applicant returned to
military control at Fort Stewart on 5 December 2001.

9.  A DA Form 4187, dated 5 December 2001, shows the applicant's status was
changed from dropped from the rolls to present for duty, effective the same
date.

10.  A DA Form 2627, Record of Proceedings under Article 15, UCMJ, dated
25 March 2002, shows non-judicial punishment was imposed on the applicant
for absenting himself without authority from his unit on 27 June 2001 and
remained so absent until 5 December 2001.  The punishment imposed was a
reduction to private, E-1; forfeiture of $500.00 pay per month for two
months, suspended, to be automatically remitted if not vacated before 25
September 2002; and extra duty for 45 days.

11.  A Developmental Counseling Form, DA Form 4856, shows the applicant
was counseled on 27 March 2002, by his platoon sergeant about:  guidelines
on command directed extra duty, a recommendation for the relocation of his
family, and his personal finances.  It was explained to the applicant his
rank and pay grade had been changed to E-1 because he had been absent
without leave for approximately five months and had been receiving "No Pay
Due" on his LES (Leave and Earnings Statement).

12.  On 8 April 2002, the applicant was again counseled.  He had failed to
be at his appointed place of duty [extra duty] on 31 March 2002 and had
failed to perform his extra duty.  The applicant's counselor notified him
he was going to recommend that the suspension of the forfeiture of pay be
lifted and all punishment that had been imposed by the non-judicial action
be carried out.  The applicant acknowledged the counseling on 8 April 2002.

13.  On 31 March 2002, the applicant failed to go at the time prescribed to
his appointed place of duty.  Although he was found guilty, the commander
did not impose any new punishment.  Instead, he vacated the suspension of
the forfeiture of pay that had been imposed on him in the Article 15 that
was administered on 25 March 2002.  Vacation of the suspension was ordered
executed on 17 April 2002 by the unit's battalion commander.

14.  On 11 April 2002, the applicant was removed from the Excellence in
Armor Program by the Battalion Commander, 1st Battalion, 64th Armor.  The
notification stated a copy of the correspondence would be filed in his
military personnel records jacket.

15.  There is no evidence in the applicant's service record, and he
provided none to show, he was awarded an Excellence in Armor Award while he
was on active duty.

16.  The evidence shows that on 29 April 2002, the applicant's unit
commander requested that an elimination packet be prepared for the
applicant's discharge under the provision of Army Regulation (AR) 635-200,
Chapter 14, Paragraph 14-12c, for the commission of a serious offense.

17.  On 17 June 2002, the applicant's unit commander notified the applicant
he was recommending that he be discharged for being absent without leave
between 27 June 2001 and 5 December 2001, a serious offense.  He was
advised of the rights available to him, to include his right to consult
with consulting counsel, and/or civilian counsel at no expense to the
Government, within a reasonable time.  The applicant acknowledged the
commander's notification on 18 June 2002.

18.  The applicant consulted with counsel on 19 June 2002.  He was advised
by his consulting counsel of the basis for the contemplated action and the
rights available to him and the effects of any action taken by him in
waiving his rights.  He was provided the opportunity to make a statement in
his own behalf and he declined to make a statement.

19.  The applicant's unit commander recommended he be discharged from the
Army.  The commander's recommendation was unanimously supported by the
chain of command.  They recommended the applicant be discharged and issued
a general discharge and that he not be transferred to the Individual Ready
Reserve (IRR).

20.  On 24 June 2002, the Commander, 2nd Brigade, 3rd Infantry Division
(Mechanized), approved the applicant's discharge under the provisions of
AR 635-200, Chapter 14, Paragraph 14-12c., and directed that he be issued a
general, under honorable conditions discharge, and recommended
the applicant not be transferred to the IRR.

21.  The applicant was discharged with a general, under honorable
conditions discharge, in the rank and pay grade of Private, E-1, on 23 July
2002, under the provisions of AR 635-200, Chapter 14, Paragraph 14-12c.  On
the date of his discharge, the applicant had completed 1 year and 12 days
active military service, with time lost from 27 June 2001 through 4
December 2001.

22.  The DD Form 214 he was issued on 23 July 2002, shows in Item 4.a.
(Grade, Rate or Rank) and Item 4.b. (Pay Grade), he was discharged in the
rank/pay grade, Private/E-1.

23.  The DD Form 214 he was issued on 23 July 2002, shows in Item 12.a.
(Record of Service/Net Active Service This Period), he had 1 year and 12
days net active service.

24.  The DD Form 214 he was issued on 23 July 2002, shows in Item 12.h.
(Effective Date of Pay Grade), his date of rank was 2002 / 03 / 25 (25
March 2002).

25.  The DD Form 214 he was issued on 23 July 2002 shows in Item 16 (Days
Accrued Leave Paid), he was paid for 21.5 days of accrued leave.

26.  The DD Form 214 he was issued on 23 July 2002, shows in Item 26
(Separation Code), the separation code used was "JKQ."  This separation
code is applied to a DD Form 214 when an individual is discharged under
the provisions of AR 635-200, paragraph 14-12c., for "Misconduct –
commission of serious offense."

27.  The DD Form 214 he was issued on 23 July 2002, shows he had in Item 29
(Dates of Time Lost During this Period), time lost from 20010627-20011204
(27 June 2001 through 4 December 2001).

28.  There is no evidence, and the applicant provided none to show, that
any money that was paid to him as an enlistment bonus was recouped from
him.

29.  The evidence shows the applicant affixed his signature to Item 21, of
the DD Form 214, on 23 July 2002, attesting to the accuracy and
completeness of the information shown on the completed DD Form 214.

30.  On 20 September 2005, the applicant submitted a request for an
upgrade of his discharge to the ADRB.  The applicant made a personal
appearance before the board in Dallas, Texas, on 20 March 2006.  The
applicant was accompanied by counsel and a witness.  The evidence and
records considered by the ADRB showed that on 23 July 2002, the applicant
had received a general, under honorable discharge, under the provisions of
AR 635-200, Chapter 14, for misconduct.  Records considered by the ADRB
showed he had 161 days time [5 months and 8 days] lost due to AWOL for the
period from 27 June 2001 to 4 December 2001.

31.  The ADRB Case Report and Directive shows the ADRB determined the
applicant's discharge had been inequitable.  The board voted to change only
the characterization of his service and the reason for his discharge.
There is no evidence the ADRB voted to exonerate, or in effect, forgive the
applicant for his absence without leave and, in effect, convert the lost
time to good time.

32.  AR 601-210, Chapter 9, Paragraph 9-9, specifies that individuals who
are eligible for and enlist for an incentive will be informed, in addition
to being informed of other requirements of the program, of the following:

     "(d) Soldiers paid the EB [enlistment bonus] must (unless otherwise
     directed by HQDA) serve in the designated MOS for the period of
     enlistment. (This includes normal skill progression.)
     (e) 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).  Persons who
     immediately reenlist before completion of the term of service for which
     a bonus was paid will not be subject to repayment of bonus if
     reenlistment period exceeds remaining enlistment bonus period by at
     least 2 years.  An unserved bonus period may not be used for SRB
     computation.


     (g) The bonus will be payable –


     (1) in accordance with the current HQDA Enlistment Incentive Message as
     published by Enlisted Accession Division, DAPE-MPA.


     (2) at first duty station if in possession of MOS."

33.  On 21 June 2006 the DFAS-Denver Center notified the applicant his
claim to that agency had been reviewed and, based on their review, the debt
remained valid.  The DFAS-Denver Center explained the ADRB's action had
upgraded his discharge and changed his separation code from "JKQ" to "JFF";
however, it had not removed his AWOL time.  Both separation codes reflected
the bonus was recoupable.  The DFAS-Denver Center further advised the
applicant there was no further entitlement to pay or reduction in the debt
based on his new DD Form 214.  He was provided a DD Form 2789
waiver/remission of indebtedness application for him to complete and mail
back for waiver consideration.  There is no evidence the applicant applied
for a waiver/remission of the indebtedness.

34.  AR 15-185, states, in effect, that the Army Board for the Correction
of Military Records (ABCMR) will consider individual applications that are
properly brought before it.  The ABCMR will decide cases on the evidence of
record – evidence that is submitted by applicants in support of their issue
and evidence that is contained in their service personnel records.  It is
not an investigative body.

35.  The ADRB has been given the responsibility to review the discharge or
dismissal (other than a discharge or dismissal by sentence of a general
court-martial) of any former member of an armed force under the
jurisdiction of his department upon its own motion or upon the request of
the former member or, if he is dead, his surviving spouse, next of kin, or
legal representative. A motion
or request for review must be made within 15 years after the date of the
discharge or dismissal.  Under the authority given the ADRB under Title
10, Section 1553, the board may, subject to review by the Secretary
concerned, change a discharge or dismissal, or issue a new discharge, to
reflect its findings.  A review by a board established under this section
shall be based on the records of the armed forces concerned and such other
evidence as may be presented to the board by the applicant.  A witness may
present evidence to the board in person or by affidavit. A person who
requests a review under this section may appear before the board in person
or by counsel or an accredited representative of an organization
recognized by the Secretary of Veterans Affairs under USC Chapter 59 of
Title 38.

36.  AR 635-5-1 prescribes the specific authorities (statutory or other
directives), reasons for separating Soldiers from active duty and the
separation program designator (SPD) codes to be entered on DD Form 214.
Table 2-3, SPD Codes Applicable to Enlisted Personnel, shows SPD Code
"JKQ" is applied to DD Form 214 for those Soldiers who are involuntarily
discharged for "Misconduct (Serious Offense) under the provisions of AR
635-200, paragraph 14-12c.  The SPD Code "JFF" is applied to DD Form 214
for those Soldiers who are involuntarily discharged by Secretarial
Authority under the provisions of AR 635-200, paragraph 5-3.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was AWOL.  Although he states the ADRB
found him innocent and the time and the pay he lost as a result of his
absence should be restored to him, he provided no evidence to shows that
this was part of the ADRB's decision.  In addition, the ADRB does not have
the responsibility to determine an applicant's guilt or innocence in those
cases brought before it.

2.  The applicant signed his DD Form 214 on the date of his discharge.  His
signature attests to the accuracy and the completeness of the information
recorded on the form.  By his signature, the applicant acknowledged that he
received payment for the 21.5 days of accrued leave on his discharge date.
The applicant has provided no evidence he is still owed for this accrued
leave.

3.  On his enlistment, the applicant accepted the terms of the Montgomery
GI Bill Program.  Among the understandings that are included on the DD Form
2366 is one that states that his basic pay would be reduced $100 per month,
or the current monthly rate, for each of the first 12 full months of active
duty and this
basic pay reduction could not be refunded, suspended, or stopped.  In
addition, he acknowledged he must complete 36 months of active duty service
before he was entitled to the current rate of monthly benefits for a period
of 36 months.  He also acknowledged that he must receive an honorable
discharge for service establishing entitlement to the MGIB.  While the
characterization of his service has been changed to honorable, the
applicant still appears not to be qualified to receive MGIB benefits.  He
did not complete the required 36 months active duty service.

4.  The evidence the applicant provided, a letter from DFAS-Denver, shows a
debt was established for the recoupment of an enlistment bonus, or a
portion thereof, which was paid to him.  The debt was reviewed by the DFAS-
Denver after the characterization of the applicant's discharge was changed
and the debt was determined to be a valid debt.

5.  There is no evidence in the applicant's service record, and he provided
none to show, he was awarded the Excellence in Armor Award while he was on
active duty.  Additionally, this award is not included in the Army's Awards
Program and therefore, the award is not authorized for addition on his DD
Form 214.

6.  The applicant's DD Form 214 shows he received payment for 21.5 days
accrued leave.  The applicant signed the DD Form 214 in his own hand on the
date of his discharge attesting to the completeness and accuracy of the
information recorded on the DD Form 214 on the date of his discharge.  He
now alleges he was not paid for this accrued time; however, he did not
submit any documentation (i.e., a copy of his final pay voucher) showing he
did not receive compensation for this accrued leave time he sold back to
the Army.

7.  The evidence shows the ADRB acted upon two issues that had been brought
before it – the character of the applicant's discharge and the reason for
his discharge.  After careful examination of his record of service during
the period of his enlistment under review, his testimony, and the analyst's
recommendation and rationale, the board determined the discharge was
inequitable based on extenuating and mitigating circumstances surrounding
the discharge.  Based on this determination, the applicant's
characterization of his service and the reason for his discharge were
changed.  These changes also entailed a change of the applicant's RE
(reentry) Code to RE-1.  There is no evidence the ADRB voted to exonerate,
or in effect, forgive the applicant for his absence without leave and, in
effect, convert the lost time to good time; therefore, the applicant is not
entitled to have the AWOL time removed from his DD Form 214 and payment for
the lost time he accrued due to AWOL.

8.  When the applicant enlisted, he signed a DD Form 2366, Montgomery GI
Bill (MGIB) Act of 1984.  By signing this form, the applicant acknowledged
that his basic pay would be reduced $100 per month, or the current monthly
rate, for each of the first 12 full months of active duty and this basic
pay reduction could not be refunded, suspended, or stopped.  He
acknowledged he must complete 36 months of active duty service before he
was entitled to the current rate of monthly benefits for a period of 36
months.  He also acknowledged that he must receive an honorable discharge
for service establishing entitlement to the MGIB.

9.  Based on the above, and based on program rules, the applicant is not
entitled to be reimbursed for and money that was collected from his basic
pay intended for deposit in his MGIB account.

10.  Even though the applicant's discharge was upgraded to honorable by
the ADRB, it appears the applicant does not qualify to receive MGIB
benefits since he did not complete 36 months of active duty service.  The
applicant is encouraged to seek counseling from a Department of Veterans
Affairs counselor to determine which of a wide array of programs and
benefits he may be qualified to receive.

11.  The evidence shows the applicant was promoted to pay grade E-3 on 25
May 2001.  He was reduced to pay grade E-1 when non-judicial punishment was
imposed upon him for his unauthorized absence.  The applicant was reduced
in pay grade before his discharge from active duty.  While the individual
may believe he was exonerated for his unauthorized absence by the ADRB and
he should have his pay grade restored, he is not entitled to have his pay
grade and his date of rank restored.

12.  The evidence shows the punishment imposed on the applicant for his
unauthorized absence was a forfeiture of $500.00 pay per month for two
months. As with restoration of his rank and pay grade, the applicant is not
entitled to the return of any of the money that may have been taken from
him.

13.  In order to justify correction of a military record, the applicant
must show, 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.

14.  In view of the foregoing, there is no basis for granting the
applicant's request for those corrections he requested in his application
to the Board.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PMS_  __EM____  ___DKH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




                                  ____Paul M. Smith       ___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060012535                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070501                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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