RECORD OF PROCEEDINGS


	IN THE CASE OF:	  



	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20060015880 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 he receive a waiver for repayment of his Enlistment Bonus from the Department of Finance and Accounting Service (DFAS).

2.  The applicant states that he was in Iraq when he reenlisted in the Regular Army for an additional four years of service.  The applicant continues that by reenlisting in Iraq he was given his choice of duty stations and that when he returned from Iraq, he was out of a duty position because the Army converted his military position to a civilian position.  

3.  The applicant states that upon checking out of the military installation, he inquired about the repayment of the Selective Reenlistment Bonus (SRB) he received based on his reenlistment.  The applicant continues that his career counselor and chain of command informed him that the Army had breeched his contract and because it was not his fault, he would not be obligated to repay the bonus back.  The applicant asserts that his command provided him with a memorandum which determined he was not obligated to repay the bonus.

4.  The applicant contends that he checked his credit report in August 2006 which showed his reenlistment bonus as being a negative liability.  Additionally, the applicant's credit report showed his credit score dropped down over 100 points.  

5.  The applicant continues that another reason for his request for correction of his record is to remove the collection code from his records.

6.  The applicant provides copies of his enlistment contract; his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 August 2005; memoranda for the record; debt collection notices; and three DFAS letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army on 5 March 2001.  He was trained in, awarded, and served in military occupational specialty (MOS) 92Y (Unit Supply Specialist).  




2.  The applicant's DD Form 4 (Enlistment/Reenlistment Document) shows that while stationed in Iraq, on 3 July 2004, he reenlisted in the Regular Army for a period of 4 years based on the following options: (1) the CONUS station of choice (Miami, FL); (2) SRB 1.0A.MOS NA; (3) No Waiver; (4) 1st Reenlistment; and (5) Lump Sum Bonus authorized in accordance with MILPERS Message
04-047.

3.  Records show that on 13 August 2005, the applicant was separated under the provisions of chapter 7, section IV, Army Regulation 635-200 (Personnel Separations), by reason of a defective enlistment agreement and transferred to the USAR Control Group (Reinforcement).  The highest rank he attained while serving on active duty was sergeant/pay grade E-5.

4.  Department of the Army, 1st Battalion, 5th Cavalry Regiment of the 1st Cavalry Division, Fort Hood, Texas, memorandum, dated 13 April 2005, shows the applicant's career counselor provided a brief explanation for separation.  The counselor states that the applicant reenlisted on 3 July 2004, for Option E-5 CONUS Station of Choice, Miami, Florida, Military Entrance Processing Station (MEPS).  The counselor continues that while the applicant was deployed in support of Operation Iraqi Freedom the assignment he reenlisted for had been civilianized and was no longer available.  The counselor indicates that the applicant did not wish to renegotiate his contract, but instead chose to be separated.

5.  Department of the Army, Headquarters and Headquarters Company, 1st Battalion 5th Cavalry Battalion of the 1st Cavalry Division, Fort Hood, Texas, memorandum, dated 14 April 2005, shows the applicant's commander provided a Memorandum for Record, Subject: Inquiry of Repayment of Bonus for the applicant.  The commander states that the applicant reenlisted for Options 
E-5 CONUS Station of Choice, Miami, Florida, MEPS, on 3 July 2004.  The commander states that the applicant is not obligated to repay the bonus since he had fulfilled his service obligation.  The commander continues that the applicant's position was contracted out to civilians after his reenlistment contract was signed and was no longer available.  The commander further states that the breach of contract was on the part of the Department of the Army. 

6.  The applicant provides a credit statement from Pioneer Credit Recovery, Incorporated dated 20 November 2006.  The statement shows the private company was authorized by DFAS to collect his debt, accrued interest, penalty charges, fees, and expenses incurred by the Treasury Department in the amount of $5,802.75. 

7.  The applicant provides a past due credit statement from Pioneer Credit Recovery, Incorporated dated 10 December 2006.  The statement shows that the applicant had agreed to enter into a payment plan with the collection agency in the amount of $50.00 per month.  The applicant maintains that he has been doubling the payment amount to $100.00 on occasion.  

8.  The applicant provides a copy of the Defense Finance and Accounting Service, Denver Center, Colorado, memorandum, dated 7 February 2007.  The memorandum shows that DFAS deleted the applicant’s account with credit bureaus to which they report information.  No reason was provided for their action.

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, DC.  The advisory opinion shows that bonuses are routinely recouped for an unserved period of service when the separation occurs through voluntary actions or through the Soldier's misconduct in accordance with procedures in Army Regulation 601-280 (Army Enlistment and Reenlistment Program), paragraph 5-13 through 5-15.  The advisory opinion continues that paragraph 5-13 (Recoupment from Soldiers who fail to complete obligated service and correction of erroneous selective reenlistment bonus cases) is generally clear regarding recoupment failure to complete obligated service.  

10.  The advisory opinion further indicates that regarding cases when Soldiers are separated for an unfulfilled contract or in doubtful cases, commanders have the option to request a waiver of recoupment provisions.  The advisory opinion continues that a review of supporting documents submitted by the applicant substantiates that the command supported a waiver which would in all likelihood have been approved by Headquarters, Department of the Army.  The advisory opinion continues that the applicant makes references in his application regarding his DD Form 214, dated 13 August 2005.  The advisory opinion shows that the reason for the applicant's separation "defective enlistment" is correct based upon the unfulfilled enlistment agreement, as described in paragraph 
7-16b (Defective or Unfulfilled enlistment or reenlistment agreements) of Army Regulation 635-200 (Army Enlisted Separations).  The advisory opinion recommended that the Board grant relief regarding any bonus recoupment or repayment from the applicant.

11.  A copy of the advisory opinion was forwarded to the applicant for comment; which he concurred with on 16 May 2007.

12.  Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Enlistment and Reenlistment Program.  Chapter 5 of that regulation in effect at the time provided for Enlistment and Reenlistment Bonuses for Enlisted Personnel.  Paragraph 5-13, states in pertinent part that a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an EB or SRB was paid will refund a percent of the bonus equal to the percent of obligated service not performed.  The servicing FAO will perform recoupment of the portion of the bonus before the Soldier’s discharge.

	a. An SRB recipient who is discharged and immediately reenlists before completing the obligated service will not be required to refund the unearned portion. 

	b. An EB (enlistment bonus) recipient who is discharged and immediately reenlists before completing the obligated service will not be required to refund the unearned portion, so long as:

	(1)  the Soldier is not paid an RRB; and 

	(2)  the reenlistment is for at least 2 years beyond the time for which the EB was paid.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should receive a waiver for repayment of his Enlistment Bonus from the Department of Finance and Accounting Service (DFAS).

2.  The available evidence shows that on 3 July 2004, while stationed in Iraq, the applicant reenlisted in the Regular Army for 4 years, based on the following options: (1) the CONUS station of choice (Miami, FL); (2) SRB 1.0A.MOS NA; (3) No Waiver; (4) 1st Reenlistment; and (5) Lump Sum Bonus.

3.  Memoranda provided by the applicant's chain of command and career counselor both concur that the Department of the Army breached the terms of the applicant's reenlistment contract; therefore, the applicant is not obligated to repay the reenlistment bonus.  

4.  Further, an advisory opinion was obtained from the Chief, Incentives and Budget Branch Enlisted Accessions Division which recommended that the Board grant relief regarding any bonus recoupment or repayment.

5.  Considering there is no evidence to show it was the applicant's intent to not complete his 4 year period of obligated service, it would be equitable to correct his records to grant relief regarding any bonus recoupment or repayment.

BOARD VOTE:

__BPI___  _TMR___  _GJP____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 first auditing the applicant's record to determine the recoupment or repayment amount of his Selective Reenlistment Bonus.  

2.  The Board further determined that the 14 April 2005 memorandum from the applicant’s commander is sufficient to establish intent that the debt not be recouped and any past recoupment of the applicant’s reenlistment bonus be returned to him.




_Bernard P. Ingold__
          CHAIRPERSON




INDEX

CASE ID
AR20060015880
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.