IN THE CASE OF:
BOARD DATE: 11 September 2008
DOCKET NUMBER: AR20080009994
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, correction of his military records to forgive his debt to the United States Government and to cancel the recoupment action by the Defense Finance and Accounting Service (DFAS).
2. The applicant states, in effect, that when he cleared finance and was honorably discharged, no one mentioned to him that he had to pay back the Selective Enlistment Bonus (SEB) he had received. His contract stated no stipulations requiring him to repay the bonus.
3. The applicant provides a copy of his Statement of Understanding, United States Army Incentive Enlistment Program.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 14 November 1997, the applicant enlisted in the Regular Army for 4 years. He contracted for the United States Army Training Enlistment Program and to receive a Selective Enlistment Bonus (SEB) of $8,000.00. Annex D, paragraph 5a (2)(3) of his contract informed him that he would lose entitlement to the incentive bonus if he failed to successfully complete training in the military occupational specialty (MOS) he enlisted for; and that he must remain qualified in his incentive MOS for the duration of his initial enlistment.
3. The applicant completed his initial training and was awarded MOS 63T (Bradley Fighting Vehicle Mechanic).
4. On 25 March 2000, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement). He had attained the rank of private, pay grade E-2 and had completed 2 years,
4 months, and 12 days of creditable active service. The applicant was released from active duty due to his failure to maintain physical standards, under the provisions of Army Regulation 635-200, paragraph 13-2f. His characterization of service was honorable.
5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, that initiation of separation procedures is required for Soldiers without medical limitation who have two consecutive failures of the Army Physical Fitness Test.
6. The applicant was paid an SEB of $8,000.00 for an expected period of service equal to 48 months, or 1440 days using a 30-day standard for each month. He served all but 588 days of this required service. Dividing $8,000.00 by 1440 provides a value of $5.55556 per day. Multiplying 588 days by the daily value of $5.5556 provides a recoupment amount of $3,266.67.
7. The Department of Defense Financial Management Regulation, Volume 7A, chapter 9, paragraph 0905 states, in part, that the recoupment of the unearned portion of an SEB is required when the member does not complete the terms of the enlistment.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows that the applicant enlisted for a 4-year term of service and received an SEB of $8,000.00. Furthermore, he did not fulfill his active duty service obligation due to his own failure to maintain his physical fitness.
2. While Annex D of the applicants contact does not specifically state he would have to repay the SEB, it does clearly state that he must maintain qualification in the incentive MOS for the duration of his initial term of enlistment. This, the applicant did not do.
3. It is reasonable to presume that the applicant knew he received an SEB of $8,000.00 based on a 4 year term of service and that if he did not fulfill the required period of service he would have to repay some amount of money. Furthermore, it is not reasonable to think that the applicant believed he would be able to keep monies he had not earned.
4. In view of the above, the applicants request for relief of debt should be denied.
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) AR20070016793
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ABCMR Record of Proceedings (cont) AR20080009994
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