IN THE CASE OF:	

	BOARD DATE:	14 August 2008  

	DOCKET NUMBER:  AR20080009628 


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 correction of his records as follows:

     a.  set aside a defective reenlistment contract, dated 27 January 2007;

     b.  immediate honorable discharge for the convenience of the government with appropriate separation and reentry (RE) code; and 

     c.  pro rata reduction of repayment of the selective reenlistment bonus (SRB) received as a result of the defective reenlistment, based upon percentage of service completed.

2.  The applicant states that he reenlisted in military occupational specialty (MOS) 97E (Human Intelligence Collector) in January 2007.  In July 2007, an investigating officer (IO) discovered that the applicant’s MOS was 91W (Health Care Specialist) and that his records were not posted with the correct MOS due to an administrative oversight that he did not know about (and not otherwise a fraudulent enlistment).  However, despite his protest against being retained in the Army except in MOS 97E, his commander took final action on the investigation and disqualified him in MOS 97E as an erroneous enlistment, retained him in the Army, corrected his MOS, and ordered repayment of the SRB.  The applicant further states that his chain of command was aware from the IO that the facts in the case did not support an erroneous enlistment because the MOS error was not a failure to meet basic eligibility for reenlistment, but rather a defect in the option he reenlisted for and that the chain of command should have requested clarification and determination of a defective enlistment from the Human Resources Command (HRC), Alexandria, Virginia (VA) as required by Army regulation. 

3.  The applicant provided additional documentary evidence through counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records as follows:

     a.  set aside the applicant’s four-year defective reenlistment contract, dated 27 January 2007; 

     b.  order the applicant’s immediate honorable discharge for the convenience of the government with appropriate separation code and an RE code of RE-1; 

     c.  grant the applicant pro rata of recoupment of any SRB already paid by installments based upon the percentage of service completed; and

     d.  expunge the approved investigative findings and local commander’s adverse action from the applicant’s Official Military Personnel File (OMPF) or transfer to the restricted portion of the OMPF.

2.  Counsel states that:

     a.  the applicant enlisted in the Regular Army for a period of 5 years, as a specialist (SPC)/E-4, on 20 February 2002, completed advance individual training (AIT) for MOS 97E (redesignated as 35M in May 2007), and was subsequently reassigned to the Defense Language Institute (DLI), Monterrey, California (CA) for foreign language training.  Upon arrival at DLI, he was bumped from his scheduled, oversized class and was placed into the next class. He then switched classes due to an intense conflict among the instructors.  He completed the course requirements, but tested a “1” in the L (listening) portion of the Defense Proficiency Language Test (DLPT) and was told by his platoon sergeant he had to reclassify into another MOS due to Army policy.  At the time, he was required to score a minimum of “2” on the DLPT.  Shortly thereafter, the Army dropped the “2” requirement for initial entry Soldiers.  Furthermore, Army Pamphlet 611-21 (Military Occupational Classification and Structure), 1999 version, stated that the Soldiers in the grade of SPC/E-4 were required to obtain a “1” in the listening portion of the DLPT while the applicant, as a sergeant 
(SGT)/E-5 was required to obtain a “2.”  Upon completion of the language school at DLI, the applicant was reassigned to Fort Sam Houston, Texas (TX), where he completed a course of training for MOS 91W; however, his records were never changed to show his MOS as 91W.  The applicant’s MOS was shown on his electronic personnel records as 97E; therefore, his subsequent assignment as well as his promotion to the rank/grade of SGT/E-5 were in MOS 97E.  Furthermore, he was assigned to Fort Lewis, Washington, and was placed as the unit Training Noncommissioned Officer (NCO), because he was one of the “smart guys” and was subsequently awarded the Good Conduct Medal (2nd Award) as a testimony of his honorable service; 

     b.  the applicant reenlisted for a period of 4 years in MOS 97E on 26 January 2007 and qualified for a $37,500.00 SRB.  His reenlistment agreement stated that if he did not complete the full period of service or was no longer qualified in MOS 97E, he would no longer receive the SRB installments and that he would be required to repay that portion of the bonus already received for the unexpired term.  Counsel added that the phrase “not qualified” means he refused to perform MOS duties, or due to misconduct or MOS disqualifying discipline under the Uniform Code of Military Justice (UCMJ).  However, none of these apply in the applicant’s case.  Additionally, his reenlistment did not require him to repay his bonus because he was assigned to non-97E duties.  Nevertheless, by May 2007, he was still not assigned to a 97E position.  His commander initiated an informal investigation to determine if his reenlistment was fraudulent; 

     c.  the applicant did not deliberately conceal any disqualifying factor in his reenlistment.  By regulation, if there is no concealment of a disqualifying factor and that factor is not waivable for reenlistment purposes, the Soldier would be discharged as appropriate due to “erroneous enlistment.”  However, if the factor is waivable and the Soldier’s retention is in the best interests of the Army, the local commander or Department of the Army may direct retention.  Furthermore, unlike an erroneous reenlistment, a defective reenlistment does not involve disqualification; rather, the Soldier is eligible for reenlistment, but does not meet the prerequisites for the option for which he/she reenlisted.  Applicable to the applicant’s case is the fact that recruiting personnel committed an administrative oversight or error in which the applicant did not knowingly take part, in failing to detect that the applicant did not meet all the requirements for the enlistment commitment;

     d.  the IO found no fraud, but effectively an administrative oversight by retention personnel; yet, without any analysis of waiver versus options, the IO asserted that the applicant’s reenlistment was erroneous.  There was never any basic disqualification issue.  The applicant was eligible to reenlist as a 91W and 
the administrative oversight was only that of reenlisting him as 97E was a defect. Even if he lost primary MOS qualifications, that was still not waivable.  The loss of a prior awarded MOS could lead to discharge.  Counsel further argues that the applicant could not lose an MOS that was not awarded to him in the first place; and  

     e.  when an enlistment is erroneous, by regulation, action is taken to determine whether to separate or retain the Soldier.  The IO and the applicant’s commander determined that there was no fraud; but, believed that the absence of MOS 97E was not a disqualification requiring separation.  The applicant’s commander conceded that the applicant’s reenlistment contained a defect by leaving the reenlistment contract undisturbed without a waiver and simply changed the ERB.  However, a 30-day notice generally requires the Soldier to bring matters to the attention of the commander and allow the commander to begin a preliminary investigation.  This was satisfied when the commander appointed an IO.  The IO findings show the commander discovered the MOS oversight before the applicant was aware of his ineligibility.  Based on the IO’s report and allied statements, the commander’s role is to forward his preliminary report to the Department of the Army for determination.  On final determination, the Soldier is allowed to request separation.  The applicant made it clear that he wanted to separate.  However, the applicant’s commander, who initiated the investigation, bypassed this rule and improperly took action himself based on the IO’s findings of erroneous enlistment.  Without any rebuttal action from the applicant, the commander took immediate action by correcting the applicant’s MOS, revoking his promotion to SGT/E-5, and initiating action to recoup the SRB monies.  The commander’s final action is void because he ignored the 30-day notice rule, rebuttal, and review due process.  In view of the foregoing reasons, counsel requests the applicant be granted relief.   

3.  Counsel provides the following additional documentary evidence in support of the applicant’s request:

     a.  DD Forms 4 (Enlistment/Reenlistment Document-Armed Forces of the United States), dated 13 September 2001 and 26 January 2007;  

     b.  Diploma, dated 3 October 2002, U.S. Army Intelligence Center, Fort Huachuca, Arizona (AZ), completion of MOS 97E course;

     c.  Certificate of Completion, dated 15 July 2004, DLI, Presidio of Monterey, CA, completion of the 63-week basic program of instruction in the Arabic language;

     d.  Diploma, dated 23 November 2004, Fort Sam Houston, TX, completion of MOS 91W course;

     e.  Undated certificate of affiliation with the U.S. Army Medical Department Regiment;

     f.  DA Form 2166-7 (NCO Evaluation Report) for the period 20061101 to 20070831;  
     g.  Enlisted Record Brief (ERB), dated 11 May 2007;

     h.  Promotion to sergeant Orders 295-18, dated 22 October 2006;

     i.  Good Conduct Medal (2nd Award) Orders 60-10, dated 1 March 2005;  

     j.  Certificate, dated 31 August 2007, awarding the applicant the Army Commendation Medal; and 

     k.  Investigative Findings Memorandum, dated 11 July 2007, with allied sworn statements. 

CONSIDERATION OF EVIDENCE:

1.  This case is being considered anew since the Board which considered the original case did not have the applicant’s counsel’s rebuttal to the HRC advisory opinion.

2.  The applicant’s records show that he enlisted in the Regular Army under the Delayed Entry Program (DEP) on 13 September 2001.  He subsequently enlisted in the Regular Army for a period of 5 years on 20 February 2002.  Upon completion of basic combat training at Fort Jackson, South Carolina (SC), he proceeded to Fort Huachuca, AZ, where he attended and successfully completed the requirements of instruction prescribed for MOS 97E during the period 10 June 2002 to 3 October 2002. 

3.  On 16 October 2002, the applicant arrived at DLI, Presidio of Monterey, CA, and on 15 July 2004, he successfully completed the 63-week basic program of instruction in the Arabic language.  Prior to completion of the course of instruction, he took his final learning objective proficiency and performance test in the Arabic language.  He scored “1” in the Listening (L), “2” in Reading (R), and “1” in Speaking (S).  Accordingly, he was issued a certificate of completion rather than a Graduation Diploma.  

4.  On 29 July 2004, he arrived at Fort Sam Houston, TX, where he attended and successfully completed the Health Care Specialist Course, MOS 91W, from 2 August 2004 to 23 November 2004. 

5.  On 5 December 2004, the applicant was assigned to Headquarters and Headquarters Troop (HHT), 1st Squadron, 14th Cavalry, 3rd Brigade, 2nd Infantry Division, Fort Lewis, Washington.  

6.  The applicant’s awards and decorations include the Army Service Ribbon, the National Defense Service Medal, the Global War on Terrorism Service Medal, the Army Commendation Medal, and the Good Conduct Medal (2nd Award).

7.  On 22 October 2006, Headquarters, 3rd Stryker Brigade Combat Team, 2nd Infantry Division, Iraq, published Orders 295-18, dated 22 October 2006 announcing the applicant’s promotion to SGT/E-5, in MOS 97E, effective and with a date of rank of 1 November 2006. 

8.  The applicant’s NCO Evaluation Report (NCOER) during the period
1 November 2006 to 31 August 2007, shows he performed duties in MOS 42A (Human Resources Sergeant) as the Rear Detachment Sergeant of a Reconnaissance, Surveillance, and Target Acquisition Squadron of the 3rd Stryker Brigade Combat Team.  Furthermore, his NCOER shows his primary MOS is “91W.” 

9.  On 26 January 2007, the applicant executed a 4-year reenlistment in the Regular Army, in MOS 97E.  In connection with his reenlistment for the current station stabilization (remain at Fort Lewis for 12 months beginning the date he reenlisted), he was also entitled to a $37,500.00 SRB.  The applicant authenticated Annex C (Statement of Entitlement to Selective Reenlistment Bonus) of his DD Form 4, indicating that he understood that he was getting an SRB in return for his reenlistment in MOS 97E for a period of 4 years and that he agreed to complete this service.  He further acknowledged that:

     a.  he was advised and understood that if he did not complete the full period of service, or if he did not remain technically qualified in MOS 97E, he would not get any more installments of the bonus, and that he would have to pay back as much of the bonus as he had already received for the unexpired part of the period of obligated service; and  

     b.  he understood that he will be considered NOT technically qualified in MOS 97E when he was no longer classified in that MOS and his current and future assignment in that MOS is precluded for any of the following reasons within his control: 

          1.  he refuses to perform certain duties which he volunteered for in writing prior to his accepting of the bonus and which are required for effective performance in the MOS; 

          2.  disciplinary action taken under the UCMJ or civil court convictions disqualifies him for future performance in the MOS; 

          3.  his own misconduct causes injury, illness, or some other condition which interferes with effective performance of the MOS; and  

          4.  withdrawal of the minimum security clearance, loss of qualification under the Personnel Reliability Program (PRP), or loss of any other mandatory qualification required for effective performance in the MOS.   

10.  On an unknown date in 2007, the applicant’s immediate commander appointed an IO to investigate the applicant’s possible fraudulent enlistment.  

11.  On 11 July 2007, by memorandum summarizing his findings, the IO stated that, after interviewing several personnel and researching applicable regulations, he determined that the applicant’s training records indicated he was a 91W.  However, administratively, as shown on several personnel systems (eMILPO, EDAS, and RETAIN) as well as the applicant’s promotion orders, he was a 97E.  For this reason, the retention NCO did not question the fact that he was not a 97E.  This was a clerical error.  The IO also stated that the applicant made no attempt to hide his status as a 91W or to change his MOS to 97E.  The IO concluded that there was no fraud in the applicant’s reenlistment and that the applicant was simply unaware of how the Army functions.  The IO recommended correction of the applicant’s records to show his MOS as 91W; issuing the applicant a letter of concern addressing his lack of knowledge in the areas of MOS and reenlistment; and recoupment of SRB monies received above and beyond what he would have received as a 91W.  The applicant's commander approved the IO's findings and recommendations on 18 July 2007. 

12.  On 19 June 2008, the applicant was honorably released from active duty and transferred to the US Army Reserve Control Group (Reinforcement) by reason of completion of required active service.  He was assigned an RE code of RE-1.

13.  In an advisory opinion obtained in the processing of this case on 22 April 2008, the Chief Force Alignment Division, HRC-Alexandria, VA, (HRC-A) stated that the applicant completed MOS 97E training; however, he did not meet the language qualifications for the Arabic language.  The MOS required him to maintain a language proficiency at that time.  He was reclassified into MOS 91W based on non-compliance with the MOS standards.  The Chief also stated that the applicant’s reenlistment was determined to be erroneous and that there were administrative errors that precluded the reenlistment from being accurate.  The Chief also added that the applicant’s reenlistment contract was cancelled and his expiration of term of service (ETS) had reverted to 19 September 2007 with an adjusted date of 19 June 2008.  

14.  On 10 June 2008, the applicant’s counsel submitted a rebuttal to the advisory opinion.  In that rebuttal, counsel references the Board’s consideration of the case prior to receipt of the rebuttal, and cites selected portions of the Board’s record of proceedings.  Counsel then charges that both the HRC-A and the Board completely overlooked regulatory standards and relied on no factual findings thereto.  Both the HRC-A and the Board erroneously concluded that the applicant must give back an erroneous bonus because he was never awarded MOS 97E.

15.  Counsel argues that since the applicant incurred a debt as a result of a voluntary separation, the applicable standard is whether the indebtedness should be remitted or canceled for reasons of compassion, injustice, hardship, the Soldier’s value to the service, morale, and the best interests of the Army.  Counsel cites excerpts from the DoD Financial Management Regulation Volume 7A, Chapter 9, October 2006 and Army Regulation 600-4 concerning recoupment of indebtedness.  Counsel then examines the meaning of the terms “voluntary” and “injustice” as they apply to these excerpts.

16.  Counsel states that the applicant could not have opted to be retained on active duty in another MOS because he had relapsed chronic hepatitis C (a liver disease).  Therefore, his separation was not voluntary, but actually for the convenience of the Government.

17.  Counsel cites Fort Huachuca (FH) Regulation 350-9, which states in pertinent part, that first term Soldiers who fail to meet the [proficiency] standard will not be reclassified but will be ineligible to reenlist as a linguist.  Because the applicant successfully completed the 63-week linguist course he believed that he would not be reclassified but only ineligible to reenlist.  Counsel then cites the use of the word “proficiency” by this Board in its original proceedings in this case, by the HRC-A in its advisory opinion, and in Army Regulation 350-16.

18.  Counsel contends that the applicant believed that he retained MOS 97E and was only sent to school for MOS 91W as a secondary MOS.

19.  Counsel expands on the applicant’s health issues, explaining that in addition to Hepatitis C, the applicant was also diagnosed with Bipolar Disorder NOS manifested by depression, ongoing insomnia, depression and nervousness.  He was diagnosed with nicotine and alcohol dependency which required his enrollment in the Army Substance Abuse Program.  Counsel argues that the ongoing therapy required for the applicant’s medical conditions would have made his retention on active duty impractical in MOS 91W or any other MOS, and would have rendered the applicant medically disqualified for retention.

20.  DoD Financial Management Regulation Volume 7A, Chapter 9, October 2006, paragraph 090501, Legal Requirements, states that recoupment of unearned portions of enlistment bonuses, reenlistment bonuses (regular and selective), and retention bonuses is required when:

     a.  A member voluntarily or because of misconduct does not complete the term of enlistment, reenlistment, extension of enlistment, or anniversary year for which the bonus was paid.  Members discharged 3 months or less before expiration of enlistment for reasons set forth in subparagraph 090503.N, below, are considered to have completed the terms of enlistment, reenlistment, extension of reenlistment, or anniversary year for which the bonus was paid.

     b.  A member is not qualified technically in the skill for which a bonus was paid (other than a member who is not qualified because of injury, illness, or other impairment, not the result of misconduct).  

21.  DoD Financial Management Regulation Volume 7A, paragraph 090503, Reasons for Recoupment, states that for purpose of recoupment, recouping of any unearned portions of enlistment, reenlistment, or retention bonuses, the term “who voluntarily or because of misconduct” includes (but is not limited to) members separated for defective enlistment (includes erroneous and fraudulent enlistments). 

22.  Department of the Army Pamphlet (DA PAM) 611-21 (Military Occupational Specialty and Structure), dated 31 March 1999, prescribed the military occupational specialty classification structure of the Army.  Paragraph 1-8c of that regulation stated that skill level identifies skills, proficiency, or ability typically required for successful performance at the grade with which the skill level is associated.  There is a direct relationship between grade and skill level.  Each skill level identifies positions in the following authorized ranks:  (1) skill level 1 – Private First Class and Specialist; (2) skill level 2 – Sergeant; (3) skill level 3 – Staff Sergeant; (4) skill level 4 – Sergeant First Class; and (5) skill level 5 – Master Sergeant and Sergeant Major. 

23.  Paragraph 10-276 of DA PAM 611-21, prescribes the duties, physical demands, additional skill identifiers, physical requirements, and standards of grade for MOS 97E.  It states, in pertinent part, that the human intelligence collector must possess, in addition to other physical demands, the following qualifications: (1) A physical demands rating of light; (2) A physical profile of 222221; (3) Normal color vision; (4) A minimum score of 95 in aptitude area ST; (5) A security clearance of SECRET; (6) A qualifying score on the English Comprehension Level Test (ECLT 7200L or its replacement); (7) A high school graduate or equivalent; (8) A qualifying score on the Defense Language Aptitude Battery (DLAB) as prescribed by AR 611-6; (9) Good voice quality and be able to speak English and foreign language idiomatically and without objectionable accent or impediment; (10) Never been a member of the U.S. Peace Corps, except as specified in chapter 1 of AR 600-200; (11) No information in military personnel, Provost Marshal, intelligence, or medical records which would prevent the granting of a security clearance under AR 380-67; (12) No record of conviction by court-martial; (13) No record of conviction by civil court for any offense other than minor traffic violations; (14) Meet career management and development criteria contained in AR 600-200, AR 614-200, and DA Pam 351-4; (15) Formal and mandatory training (completion of MOS 97E course conducted under the auspices of the U.S. Army Intelligence Center); and must also complete formal language training or meet the civilian acquired skills criteria listed in AR 601-210.

24.  Army Regulation 611-6 (Army Linguist Management), in effect at the time, sets policies and procedures for establishing Army linguist requirements and for identifying, testing, reporting, evaluating, reevaluating, training, and assigning Army linguist personnel.  Paragraph 3-26 of this regulation stated, in pertinent part, that Army enlisted linguist personnel are managed through three groups: Personnel in language-dependent MOS, personnel in non-language dependent MOS, and personnel possessing foreign language capability not received through Army sponsored training.  For personnel in a language-dependent MOS, the career development of these personnel will be ensured in training, assignment, and utilization directed by career branch managers and user unit commanders.  These personnel will be assigned to duties that stress progressive acquisition and use of higher-level language skills. Intermediate and advanced language courses, when available, are routinely incorporated into their career progression.  Language-dependent MOSs are 97E (Interrogator), 98G (Voice Interceptor), and for USAR personnel only, 97L (Translator/Interpreter).  Army linguist proficiency standards for individuals in a language-dependent MOS are minimum ratings of level 2 in listening and level 2 in either reading or speaking.  These standards are based on job performance requirements for duty in a linguist MOS.  For 98G, the primary proficiency is listening and reading; and for 97E, the primary proficiency is listening (L) and speaking (S).

25.  Military Personnel (MILPER) Message Number 06-159, Clarification of Military Occupational Specialty Qualification for 97E (Human Intelligence Collector), dated 5 June 2006, applied only to Regular Army Soldiers, clarified changes for MOS qualifications for MOS 97E.  It stated that, effective 5 May 2006, MOS 97E remained a language dependent MOS.  All Soldiers who complete or have completed the Human Intelligence Collector Course are considered qualified in MOS 97E at all grades.  This remains a temporary suspension of the language requirements which will be renewed annually.  All current 97E Soldiers and Soldiers entering MOS 97E during the temporary suspension period will not be required to possess a language for MOS qualification for the duration of their careers.  Qualified 97E Soldiers may obtain language training as a reenlistment option.  All contractual obligations regarding language training would be honored.  Soldiers who possess or obtain a foreign language at government expense are responsible for maintaining that language in accordance with Army Regulation 611-6.  97E Soldiers attending language training at DLI who fail to meet the 2/2/2 standard will be considered MOS qualified and may be reassigned with the needs of the Army.

26.  MILPER Message 07-087, Fiscal Year 2008 Enlisted Military Occupational Classification and Structure (MOCS) Personnel Reclassification Actions, dated 16 April 2007, stated that all Soldiers currently in MOS 97E will be reclassified to MOS 35M in current grade and all skill qualification identifier (SQI) and additional skill identifier (ASI).

27.  MILPER Message 07-209, Clarification to Military Occupational Specialty Qualification for 35M [formerly MOS 97E] (Human Intelligence Collector), dated
8 August 2007, stated that, effective 4 May 2007, the Regular Army temporary suspension for MOS 35M qualification was extended through 30 September 2008.  MOS 35M remains a language dependent MOS for all Regular Army Soldiers.  Soldiers who complete or have completed the Human Intelligence Collector Course are considered MOS qualified in MOS 35M at all grades.  All current Regular Army 35M Soldiers and those entering MOS 35M during the temporary suspension period will not be required to possess a language for MOS qualification for the duration of their careers.  Regular Army Soldiers possessing MOS 35M who do not meet foreign language qualification requirements will be considered otherwise eligible for promotion recommendation/consideration in all grades.  Qualified 35M Soldiers may obtain language training as a reenlistment option or as needed by the Soldier’s unit.  All contractual obligations regarding language training will be honored. 

28.  Army Regulation 635-200 (Personnel Separations) set forth the basic authority for the separation of enlisted personnel.  Chapter 7 of this regulation provides the authority, criteria, and procedures for the separation of soldiers because of erroneous enlistment, re-enlistment or extension of enlistment, defective enlistment agreement, or fraudulent entry.  It states, in pertinent part:

     a.  Erroneous enlistment, reenlistment, or extension:  A Soldier may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment.  For the purpose of this chapter, the term enlistment means both an original enlistment and any subsequent enlistments (re-enlistments).  An enlistment is erroneous if (1) It would not have occurred had the relevant facts been known by the Government or had appropriate directives been followed; (2) It was not the result of fraudulent conduct on the part of the Soldier; and (3) The defect is unchanged in material respects.  When it is discovered that a Soldier’s enlistment or extension is erroneous because he/she failed to meet the qualifications for enlistment, the unit commander will initiate action to obtain authority to retain, discharge, or release the Soldier based upon erroneous enlistment or extension.  The commander will forward the facts relating to and circumstances surrounding the erroneous enlistment or extension, the desire of the Soldier regarding retention or separation, and a specific recommendation for retention or separation, and the reasons, by each commander in the chain of command, to the separation authority.  If doubt exists as to whether an enlistment or extension is erroneous, the case, containing the above information will be forwarded to the Commander, HRC-Alexandria, VA, to request determination.  If it is determined that the enlistment or extension is erroneous, separation, when deemed appropriate, will be accomplished without referral of the case to Commander, HRC.  If it is determined that the enlistment or extension is erroneous, but retention is determined to be in the best interest of the Service and the disqualification is waivable by a headquarters office below the level of HRC-Alexandria, VA, retention may be directed at that level.  If it is determined that the enlistment or extension is erroneous, but retention is considered to be in the best interest of the Army and the disqualification is waivable at HQDA or non-waivable, the case and the reasons for recommending retention, will be forwarded to Commander, HRC-Alexandria, VA.  Approval will be granted only in exceptionally meritorious cases.  Where recommendations are not favorably considered by HRC, separation will be directed.  Where HRC grants a waiver for retention, the required actions will be accomplished.

     b.  Defective or unfulfilled enlistment or reenlistment agreement:  A defective enlistment agreement exists when the Soldier is eligible for enlistment in the Army but does not meet the prerequisites for the option for which enlisted.  This situation exists when (1) A material misrepresentation by recruiting personnel, 
upon which the Soldier reasonably relied, resulting in the Soldier being induced to enlist for that option and (2) An administrative oversight or error on the part of the recruiting personnel, in which the Soldier did not knowingly take part, in failing to detect that the Soldier did not meet all the requirements for the enlistment commitment.  An unfulfilled enlistment commitment exists when the Soldier receives a written enlistment commitment from recruiting personnel for which the Soldier is qualified but which cannot be fulfilled by the Army through no fault of the Soldier.  When a defective enlistment agreement is discovered after initial assignment and it appears to the soldier’s unit commander that the Soldier’s enlistment commitment is either defective when made or cannot be fulfilled, the commander will submit all pertinent facts in the case to HRC.  When HRC finds an enlistment is defective or cannot be fulfilled, a Soldier may request separation.  A non-prior-service Regular Army Soldier serving on first enlistment may request immediate discharge.  A Regular Army Soldier serving on a second or later enlistment, having been discharged from a previous enlistment before ETS to re-enlist, may request separation.  The separation will be effective when the active service in the current enlistment and last preceding enlistment equals the period stated in the preceding enlistment contract or agreement.  Separation is not authorized when the Soldier fails to bring the defect to the attention of his/her commander within 30 days after the defect was discovered or reasonably should have been discovered by the Soldier.  If an enlistment is also erroneous (failure to meet basic qualifications for enlistment or reenlistment as distinct from failure to meet the prerequisites for the particular enlistment option), action will be taken as described under erroneous enlistment.  If retention is authorized, action will then be taken as appropriate.

     c.  A fraudulent entry is the procurement of an enlistment, re-enlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or re-enlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver.  The following tests must be applied in each case of suspected fraudulent enlistment or re-enlistment. These tests will establish whether the enlistment or re-enlistment is fraudulent:

          1.  Commanders will determine if previously concealed information is, in fact, disqualifying.  Any waivable or non-waivable disqualification concealed, omitted, or misrepresented constitutes fraudulent entry.  This includes concealing information with alleged or actual recruiter connivance.  If, however, the newly revealed information does not amount to a disqualification from enlistment or re-enlistment under the appropriate regulation, there is no fraudulent enlistment or re-enlistment.  Hence, the enlistment or re-enlistment is valid and separation may not be directed.

          2.  Commanders must verify the existence and true nature of the apparently disqualifying information.  Verification of the actual offense may reveal that the enlistee was not disqualified and, therefore, is not a fraudulent enlistee.

29.  Army Regulation 600-8-104 (Military Personnel Information Management /Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  The Restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this section is controlled.  Documents on this section of the OMPF are those that must be permanently kept to (1) Maintain an unbroken, historical record of a Soldier’s service, conduct, duty performance, and evaluation; periods; and corrections to other parts of the OMPF; (2) Record investigation reports; (3) Record appellate action; and (4) Protect the interest of the soldier and the Army.  Table 2-1 (Composition of the OMPF) of this Army regulation shows that the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and allied documents are filed on the restricted portion of the OMPF.

30.  It is a fundamental principle of law that a servicemember's entitlement to military pay and allowances is dependant upon a statutory right and is not governed by ordinary contract principles.  See Ball v. United States, 366 U.S. 393, 401 (1961).  It is also a controlling principle that in the absence of specific statutory authority, the United States is no liable for the negligent or erroneous acts of its officers, agents, or employees, even though committed in the performance of their official duties.  Matter of Petty Officer John R. Blaylock, USN, 60 Comp. Gen. 257 (1981); citing Federal Crop Insurance Corporation v. Merrill, 322 U.S. 380 (1947).

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel’s request that the applicant’s 4-year defective reenlistment contract, dated 27 January 2007, be set aside and that he be immediately honorably discharged for the convenience of the government with appropriate separation code and an RE code of RE-1 has been administratively accomplished and, therefore, does not need to be considered further.

2.  In the applicant and counsel’s request to grant the applicant pro rata of recoupment of any SRB already paid by installments based upon the percentage of service completed, counsel provides many in-depth trains of logic which 
address whether the applicant obtained his SRB through fraud, whether the applicant’s discharge from his erroneous reenlistment contract constituted a voluntary separation, and whether the applicant would have been medically qualified to be retained on active duty in another MOS.

3.  In addition, in counsel’s rebuttal to the HRC-A’s advisory opinion he charges that both the HRC-A and the Board completely overlooked regulatory standards and relied on no factual findings thereto.  He claims that both the HRC-A and the Board erroneously concluded that the applicant must give back an erroneous bonus because he was never awarded MOS 97E.

4.  However, counsel’s argument is not supported by the FMR, paragraph 090503, Reasons for Recoupment, which states that “For purpose of recoupment, recouping of any unearned portions of enlistment, reenlistment, or retention bonuses, the term “who voluntarily or because of misconduct” includes (but is not limited to) members separated for . . . Defective enlistment (includes erroneous and fraudulent enlistments).”  As such, whether or not the applicant obtained his SRB through fraud, whether or not the applicant’s discharge from his erroneous reenlistment contract constituted a voluntary separation, and whether or not the applicant would have been medically qualified to be retained on active duty in another MOS, have no bearing on the validity of the recoupment of the applicant’s SRB.  This portion of the FMR is based upon 37 U.S.C. 308 and 37 U.S.C. 303a.  37 U.S.C 308 provides the special reenlistment bonus.  Section 308(d) provides that a member who does not complete the terms of the enlistment for which a bonus was paid under this section or a member who is not technically qualified in the skill for which the bonus was paid shall be subject to the repayment provisions of 37 U.S.C. 303a(e).  The FMR implements and is consistent with the repayment provisions of that section.

5.  While the documents which affected the cancellation of the applicant’s erroneous reenlistment are not contained in the applicant’s records, the HRC-A stated in its advisory opinion that that reenlistment was, in fact, cancelled.  The HRC-A also added that the applicant’s ETS had reverted to 19 September 2007 and he was then given an adjusted separation date of 19 June 2008.  Since the applicant’s reenlistment contract was cancelled, and the SRB addendum was a part of that reenlistment contract, the FMR’s requirement to collect any bonus awarded as part of that contract is certainly reasonable.  The applicant did not comply with the terms of the contract and the contract was cancelled.  As such, the applicant did not provide the services for which the Army paid such a premium.  Under the FMR and statute, the Army properly sought repayment, even if the bonus was improperly granted due to the failure of the reenlistment NCO to properly verify the applicant’s MOS.

6.  As for debt remission, this is a financial matter and not a correction of military records which would be subject to the jurisdiction of this Board.  However, neither the applicant nor counsel has provided any basis for remitting the applicant’s debt.  Whether the applicant was aware that he had not been awarded MOS 97E or not, the fact remains that he did not hold that MOS.  As such, the SRB was properly recouped, as stated earlier.  

7.  Counsel’s request to expunge the approved investigative findings and local commander’s adverse action from the applicant’s OMPF or transfer it to the restricted portion of the OMPF has been carefully considered.  Initially, there is no record of the applicant's approved DA Form 1574 (Report of Proceedings by an Investigation Officer) or allied documents pertaining to the applicant's investigative findings and recommendations, in the applicant's OMPF.  Even if the findings were posted in the OMPF, by regulation, an approved Report of Proceedings by an Investigation Officer is posted to the restricted portion of the Soldier's OMPF.  But also considered is, as counsel’s arguments make abundantly clear, the circumstances surrounding the applicant’s erroneous enlistment are highly unusual and complex.  Therefore, the retention of this investigation preserves the explanation of what occurred in the applicant’s case and, therefore, serves as a historical record.  The Army has a vested interest in maintaining the accuracy of its records.  As such, there is no basis for granting this portion of counsel’s request.

8.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.



      __________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)                                         AR20080009628



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ABCMR Record of Proceedings (cont)                                         AR20080009628


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