IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080006091 


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 further recoupment of his enlistment bonus be terminated and that his reentry eligibility (RE) and separation program designator (SPD) codes be changed.

2.  The applicant essentially states that he was informed on the date of his discharge that he had earned the portion of his enlistment bonus that he had received according to Army regulations, and never thinking anymore of this, he recently became aware of a debt of roughly $3,200.00 he owed to the Defense Finance and Accounting Service (DFAS).  He also states that he had his Federal tax return seized to help pay this debt.  He further states that he understands that he has nothing in writing stating otherwise, but would like a correction to prevent any further unexpected financial burdens on an already below average income family.  He continued by stating that he made an attempt to possibly enlist in the Army again and make the right choices, but that his RE code bars him from ever enlisting in the military again.  Additionally, he asks for a change to his RE code for possibly another chance to make his family, his country, and himself proud of his future rather than ashamed of his past.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 21 July 2005.  His enlistment contract shows that he enlisted for a period of 4 years and 16 weeks for the United States Army Training Enlistment Program and the United States Army Incentive Enlistment Program (U.S. Army Cash Bonus, 4-Year Enlistment, Critical Shortage Accession Bonus).  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  He was then reassigned to Schofield Barracks, Hawaii, for what would be his only permanent duty assignment.

2.  On 8 August 2006, the applicant was discharged under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), due to drug abuse.  His DD Form 214 shows that he only completed 1 year and 18 days of his 4-year enlistment.  Item 24 (Character of Service) of his DD Form 214 has an entry of "Under Honorable Conditions (General)," and item 25 (Separation Authority) of this document shows that the authority for his discharge was Army Regulation 
635-200, paragraph 14-12c(2).  Item 26 (Separation Code) of this document has an entry of "JKK" and item 27 (Reentry Code) has an entry of "4."  Item 28 (Narrative Reason for Separation) of this document has an entry of "Misconduct (Drug Abuse)."

3.  During the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  That office stated that upon reviewing the applicant's case, the applicant entered active duty on 21 July 2005 for a cash bonus incentive of $17,000.00, and that in accordance with Army incentives policy, the first installment of $10,000.00 would have been paid at the applicant's first permanent duty station upon completion of all initial entry training.  That office also opined that the available records show that the applicant completed all MOS training, but he was separated from the Army on 8 August 2006 for misconduct due to drug abuse.  That office further stated that bonuses are routinely recouped when the separation occurs through voluntary actions or through the Soldier's misconduct in accordance with Army Regulation 601-280 (Army Retention Program), paragraphs 5-13 through 5-15, and that paragraph 5-13 is generally clear regarding recoupment for misconduct and voluntary failure to complete obligated service.  Further, that office stated that recoupment procedures require repayment for any unserved portion of the enlistment contract for which the bonus was paid, and that the applicant enlisted for 4 years and 16 weeks (224 weeks), which prorates to $75.00 per week.  That office also stated that the applicant served 1 year and 18 days (54 weeks and 4 days), and should have retained a prorated share of his total bonus for the time served, but that the remainder of his bonus was subject to recoupment.

4.  A copy of this advisory opinion was forwarded to the applicant on 11 June 2008 for comment and/or rebuttal, and he was provided 30 days to allow him to respond.  To date, the applicant has not responded.

5.  An inquiry to the DFAS confirmed that the applicant was paid $7,000.00 of his $17,000.00 enlistment bonus on 22 December 2005, and that $2,537.50 of his $7,000.00 payment was recouped on 28 August 2006.  It was noted that the DFAS indicated that the applicant served 404 days of active duty; however, the DFAS incorrectly computed his service in calendar year 2006 through 28 August 2006, which was the date $2,537.50 was recouped, instead of 8 August 2006, which was the applicant's date of discharge.  As a result, the applicant should have only been credited with 384 days of active duty service, with $2,795.20 recouped from the applicant instead of only $2,537.50.

6.  The applicant essentially stated that he was informed on the date of his discharge that he had earned the portion of his enlistment bonus that he had received according to Army regulations, and never thinking anymore of this, he recently became aware of a debt of roughly $3,200.00 he owed to the DFAS.  He also stated that he had his Federal tax return seized to help pay this debt.  He further stated that he understands that he has nothing in writing stating otherwise, but would like a correction to prevent any further unexpected financial burdens on an already below average income family.  He continued by stating that he made an attempt to possibly enlist in the Army again and make the right choices, but that his RE code bars him from ever enlisting in the military again.  Additionally, he asked for a change to his RE code for possibly another chance to make his family, his country, and himself proud of his future rather than ashamed of his past.

7.  Paragraph 5-13 of Army Regulation 601-280 provides, in pertinent part, that a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an enlistment bonus or selective reenlistment bonus was paid will refund a percent of the bonus equal to the percent of obligated service not performed.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes including Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

9.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1, establishes RE codes to be assigned for each SPD.

10.  An SPD code of "JKK" applies to persons who are discharged for misconduct (drug abuse) under the provisions of paragraph 14-12c(2), Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that further recoupment of his enlistment bonus should be terminated and that his RE and SPD codes should be changed.

2.  While it is unclear what the applicant was informed regarding his enlistment bonus at the time of his discharge, the Army regulation governing recoupment of enlistment bonuses clearly states that a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an enlistment bonus was paid will refund a percent of the bonus equal to the percent of obligated service not performed.  The applicant was paid $7,000.00 of his enlistment bonus on 22 December 2005, and $2,537.50 of this portion of his enlistment bonus was recouped from the applicant on 28 August 2006.  The fact that $2,795.20 should have been recouped from the applicant instead of $2,537.50 due to an error in calculating the total days of active duty service the applicant completed was noted.  However, as it is the policy of the Army Board for Correction of Military Records not to correct a record to reflect a change that will make the individual concerned worse off than before applying to the Board, additional recoupment not already contemplated by the DFAS will not be directed.  Notwithstanding the above, the applicant is not entitled to termination of further recoupment of his enlistment bonus if the error is discovered through any audit performed by the DFAS in the future.

3.  The applicant's RE code and SPD code are based on his narrative reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his misconduct due to drug abuse.  As a result, there is no basis upon which to change the applicant’s RE code or SPD code.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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 for correction of the records of the individual concerned.



      _________XXX________________
                 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)                                         AR20080006091



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006091



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1