RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2007
      DOCKET NUMBER:  AR20070007136


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |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, reconsideration of his earlier
request to cancel his indebtedness to the government.

2.  The applicant states he was told by his Unit Administrator that if he
did not strive to go in front of the Medical Review Board for his knee that
he would receive an uncharacterized discharge and never would have any debt
whatsoever to the military.  He was injured on duty at his Reserve unit.
His Unit Administrator would not let him schedule a Medical Review Board
hearing since he said that he (the applicant) was not injured enough to
have a hearing held.  However, he was scheduled to have knee surgery for a
torn meniscus and had the procedure done.  Following surgery, he could no
longer perform his duties to the best of his ability.  That is why he
pleaded with his Unit Administrator to set him up with an appointment for a
hearing to be considered physically unfit for duty.  He hoped to be
discharged honorably or with a medical discharge.

3.  The applicant provides a notice of indebtedness (a balance of $1,541.85
due as of 30 March 2007); a DA Form 2173 (Statement of Medical Examination
and Duty Status); a deployment checklist; and a note, dated 18 May 2004,
from Penn Orthopaedic Institute.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20060009691 on 29 March 2007.

2.  The DA Form 2173, the deployment checklist, and the note from Penn
Orthopaedic Institute are new evidence which will be considered by the
Board.

3.  The applicant initially enlisted in the U. S. Army Reserve (USAR) on 15
March 2002.  For an unknown reason, he was discharged on 11 December 2002
with a characterization of service of uncharacterized.

4.  On 28 January 2003, the applicant enlisted in the USAR with an approved
waiver for his prior separation.  He enlisted, in part, for a $5,000.00
enlistment bonus for assignment to a high-priority unit in military
occupational specialty (MOS) 88M (Motor Transport Operator).

5.  The applicant’s DA Form 5261-R (Selected Reserve Incentive Program
Enlistment Bonus Addendum) states, in pertinent part, that his entitlement
to the enlistment bonus will be terminated should any of the following
conditions occur before fulfillment of his enlistment agreement and
obligation:  (1) become an unsatisfactory participant (which could result
in recoupment action); (2) move to  a nonbonus unit or MOS or is
reclassified; (3) fail to become MOS qualified in   12 months; (4) be
separated from his status as an enlisted Soldier assigned to a unit of the
Selected Reserve for any reason except for authorized periods of
nonavailability or except for five other specified reasons; (5) accept a
permanent civilian position where membership in the Selected Reserve is a
condition of employment; (6) exceed the maximum period authorized for
suspension during a period of nonavailability; (7) fail to extend his USAR
contracted term of service to compensate for a period of nonavailability;
or (8) enroll in the Senior Reserve Officers’ Training Corps program.

6.  The applicant’s DA Form 5261-R states that if his entitlement to the
enlisted bonus is terminated for any of the first seven reasons listed
above, he may be subject to recoupment.  The recoupment amount will be
calculated by the total bonus authorized divided by 72 months.  The product
will be subtracted from the total amount of bonus paid to him, including
initial and subsequent payments.  The applicant will be required to pay the
overpayment amount.

7.  The applicant signed the DA Form 5261-R on 27 January 2003 indicating
that he read and understood the agreement.

8.  On 7 September 2003, the applicant twisted his knee when he dismounted
from a tractor during inactive duty training.  A DA Form 2173, dated 10
January 2004, found that the injury was considered to have been incurred in
the line of duty.

9.  On 5 March 2004, the applicant was operated on by a civilian doctor to
repair a torn lateral meniscus of the left knee.

10.  The applicant provided a deployment checklist, dated 21 May 2004, that
showed he was a “no-go” pending a medical evaluation.

11.  Orders dated 28 May 2004 ordered the applicant to active duty.  Orders
dated 7 June 2004 revoked the active duty orders.

12.  On 3 October 2005, the applicant acknowledged receipt of Notification
of Separation Proceedings under the provisions of Army Regulation 135-178,
chapter 13 (Unsatisfactory Participation).  He understood that he could
expect to encounter substantial prejudice in civilian life if his service
was characterized as general under honorable conditions or under other than
honorable conditions.  Before completing his response, he understood that
he had the right to speak to an appointed counsel for consultation.  He
waived his right to consult with an appointed counsel for consultation.  He
waived his rights to a counsel for representation at the board hearing.  He
waived his right to a hearing before an administrative separation board.
He waived his right to submit written statements.

13.  On 12 January 2006, the applicant was discharged from the USAR with a
characterization of service of general under honorable conditions.

14.  An Accounting Statement from the Defense Finance and Accounting
Service (DFAS), dated 15 June 2006, shows the applicant had an account
balance of $1,166.49.  The debt reason listed was a Reserve bonus
recoupment.  DFAS stated a review of his Reserve Component Master Military
Pay Account showed he was paid $3,500.00 towards a 72-month contract.  The
applicant’s unit reported that he satisfactorily performed 36 months and
therefore he earned $2,500.00 of the funds he was paid.

15.  Army Regulation 135-178 (Enlisted Administrative Separations), chapter
   13 states a Soldier is subject to discharge for unsatisfactory
participation when it is determined that the Soldier is unqualified for
further military service because:  (1) the Soldier is an unsatisfactory
participant as prescribed by Army Regulation 135-91, chapter 4 and (2)
attempts to have the Soldier respond or comply with orders or
correspondence have resulted in (a) the Soldier’s verbal or written refusal
to comply with the orders or correspondence; or (b) a second notice, sent
by certified mail, was refused, unclaimed, or otherwise undelivered, or (c)
verification that the Soldier has failed to notify the command of a change
of address and reasonable attempts to contact the Soldier have failed.
Characterization of service normally will be under other than honorable
conditions, but characterization as general under honorable conditions may
be warranted.

16.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) states an enlisted
Soldier who is obligated by statute or contract will be charged with
unsatisfactory participation when, without proper authority, he or she
accrues a total of 9 or more unexcused absences from scheduled drills in
any 1-year period.

17.  Army Regulation 135-91 states that all situations not specifically
identified in chapter 4, section II (Excused Absences), section IV (Leave
of Absence) or section V (Pregnancy) are considered unexcused absences.
Absences may be excused when sickness, injury, or some other circumstances
beyond the Soldier's control caused the absence.
18.  Army Regulation 135-91 states a Soldier excused for a reason shown in
section II may be required to document the reason for the absence.  If the
unit commander requires this evidence, the Soldier will normally be
notified within     14 days of the absence.  Evidence submitted by the
Soldier will be in the form of an affidavit when the absence was beyond the
Soldier's control.

19.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-13c
states that internal derangement of the knee with (1) residual instability
of the knee following remedial measures, if more than moderate in degree or
(2) if complicated by arthritis, is a cause for referral to a medical
evaluation board.  Paragraph 3-13d(2) states that a knee range of motion
that does not equal or exceed flexion to 90 degrees or extension to 15
degrees is a cause for referral to a medical evaluation board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR in January 2003 for, in part, a
$5,000 enlistment bonus.  His DA Form 5261-R informed him that his
entitlement to the enlistment bonus would be terminated if he became an
unsatisfactory participant and that such termination could result in
recoupment action.

2.  It is acknowledged that the applicant injured his knee during inactive
duty training in September 2003 and that he had surgery to repair a torn
lateral meniscus on 18 May 2004.  It is acknowledged that he was determined
to be nondeployable on 21 May 2004, which is understandable as it was only
a week after his knee surgery.

3.  However, the applicant has provided no evidence to show what his knee
condition was at the time of or shortly before his separation for
nonparticipation in October 2005 so it cannot be determined if it was such
as to warrant referral to a medical evaluation board.  He provides no
evidence to show that his knee condition was the reason for his
nonparticipation.

4.  There is no evidence of record and the applicant provides none to show
that he requested excused absences because his knee condition prevented him
from performing his duties.

5.  The applicant was informed in writing, with the Notification of
Separation Proceedings, that he could receive a discharge under other than
honorable conditions or a general discharge under honorable conditions.
There was no mention of an uncharacterized discharge in the Notification of
Separation Proceedings.

6.  When the applicant acknowledged receipt of Notification of Separation
Proceedings, he indicated he understood that he had the right to speak to
an appointed counsel for consultation.  He waived his right to consult with
an appointed counsel for consultation.  He waived his right to a hearing
before an administrative separation board, where he could have expressed
the concerns he raises with this application.  He waived his right to
submit written statements, wherein he could have expressed the concerns he
raises with this application.

7.  Because there is insufficient evidence to show the applicant was
improperly discharged, there is insufficient evidence that would warrant
granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __swf___  __rsv___  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 to amend the decision of
the ABCMR set forth in Docket Number AR20060009691 dated 29 March 2007.




                                  __Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2000007136                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071025                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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