IN THE CASE OF:	  

	BOARD DATE:	  10 JUNE 2008

	DOCKET NUMBER:  AR20080002297 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the recoupment of his Selective Reenlistment Bonus (SRB) be waived.

2.  The applicant states, in effect, that after he was discharged from the Army he was asked to repay a percentage of his "sign-on bonus" [SRB].  He states that he served honorably in Iraq and was discharged in February 2006 for medical disability.  On September 2006, he received notification that he must unjustly repay the SRB.  He is trying to go to school and has to use his disability payment to repay the SRB.  

3.  The applicant provides a copy of his separation document (DD Form  
214), letter from the Office of the Deputy Chief of Staff, G-1, dated 2 January 2008, DFAS Form 705 (Certificate for Income Tax Adjustment), and a notification letter from Allied Interstate, Inc., dated 15 January 2008 which shows a total debt balance of $1,607.94.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 11 August 2000.  He completed the necessary training and was awarded the military occupation specialty (MOS) 11B (Infantryman).  

2.  The applicant reenlisted for 6 years on 3 October 2002 and he elected 50 percent payment of his SRB.

3.  His DD Form 214 shows that he served in Kuwait/Iraq in support of Operation Enduring/Iraqi Freedom during the period 15 November 2003 to 3 November 2004.

4.  On 23 November 2005, the applicant underwent a mental status evaluation.  The evaluation described the applicant’s behavior as “normal;” level of alertness as “fully alert;” level of orientation as “fully oriented;” mood and affect as “Anxious” and "Depressed;" thinking process as “clear;” thought content as "normal;" and his memory as “good.”  The applicant was diagnosed on Axis I with an adjustment disorder, mixed emotional features, and on Axis II with a personality disorder not otherwise specified.  Separation from the service was recommended.

5.  On 1 December 2005, the unit commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separation), paragraph 5-13 by reason of a personality disorder.  The applicant was advised of his rights.  The unit commander’s reason for his proposed separation action was the applicant’s diagnosis of adjustment disorder with mixed emotional features, which affects the performance of his military duties.

6.  On 2 December 2005, the applicant acknowledged the notification of separation action, waived consultation with legal counsel, and did not submit statements in his own behalf.

7.  On 9 February 2006, the applicant was discharged with an honorable discharge for the convenience of the government due to personality disorder under the provisions of Army Regulation 635-200, paragraph 5-13.  He completed 5 years, 5 months, and 29 days of Net Active Service This Period.

8.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The Chief, Incentive and Budget Branch, Enlisted Accessions Division noted that 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 that case been submitted through command channels to request a waiver of recoupment by Headquarters Department of the Army, such waiver would certainly have been considered by that office.  Approval of the applicant's request was recommended.  A copy of the advisory opinion was forwarded to the applicant and he concurred.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-200 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.

10.  In a memorandum from the Office of the Under Secretary of Defense dated  
18 September 2007, it was directed that repayment will not be sought if the member's inability to fulfill the eligibly requirements (completion of reenlistment) is due to circumstances determined reasonably beyond the member's control.  Such circumstances may include, but are not limited to:  injury, illness, or other impairment which is not the result of the member's misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the recoupment of his SRB be waived, because he received an honorable discharge due to medical disability.

2.  The applicant's separation was not voluntary and was not based on misconduct.  Accordingly, in keeping with the directive outlined in the memorandum from the Office of the Under Secretary of Defense dated  
18 September 2007, repayment of the applicant's SRB should not be sought since the applicant's inability to fulfill the eligibly requirements (his reenlistment) was due to circumstances beyond his control.  

3.  Based on the Army G-1 advisory opinion and the memorandum from the Office of the Under Secretary of Defense, it would be in the interest of justice to correct the record to show that the applicant requested and was granted a waiver of recoupment for the amount of $1,607.94.  Also, based on this correction the applicant should be refunded any funds already recouped.

BOARD VOTE:

__X_____  __X_____  __X____  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.  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 already collected will be reimbursed.




       _   __X_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002297



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ABCMR Record of Proceedings (cont)                                         AR20080002297



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