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.