IN THE CASE OF:	

		BOARD DATE:	3 September 2009  

		DOCKET NUMBER:  AR20090010942 


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 debt he incurred because of health reasons which resulted in him being absent without leave (AWOL) be cancelled. 

2.  The applicant states, in effect, that he is being charged $5000.00 for the time he was AWOL in 2007 and since the AWOL was due to a professionally diagnosed psychiatric disorder, Bipolar Disorder, he is requesting a refund for the entire amount that has been taken out of his pay since March 2008.  He states, in effect, that the doctors as well as his chain-of-command excused his behavior during that time because his mental illness was untreated.  He continues to state that afterwards both his doctors and chain-of-command agreed that he should not have to repay the monies that were paid to him while he was AWOL because his mental condition was undiagnosed at the time.  He further states that he has now been medically retired for Bipolar Disorder and awarded a Good Conduct Medal, from the date he enlisted until the date he was retired. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty), 22 pages of progress notes from the Department of Veterans Affairs (VA) Salt Lake City Health Care System (HCS), a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care), a copy of the Narrative Summary for his Medical Evaluation Board (MEB), a copy of his Physical Evaluation Board (PEB), a copy of a memorandum from the Defense Finance and Accounting Service (DFAS) with two enclosures, and a copy of a memorandum from the U.S. Army Wounded Warrior Program, Fort Bragg, NC.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he initially enlisted in the Regular Army on 
1 May 1996, and was honorably discharged on 28 July 2000.  He again enlisted in the Regular Army on 22 August 2006.  

2.  The applicant's record contains a DA Form 4187 (Personnel Action) which shows his duty status changed from present for duty to AWOL on 24 April 2007.

3.  The applicant's record contains a DA Form 4187 which shows he was dropped from the Army rolls (DFR'd) on 25 May 2007.  

4.  The applicant submitted 22 pages of progress notes from the VA Salt Lake HCS which shows he was admitted to the psychiatric ward on 5 September 2007, after being bailed out of jail for stealing a recreational vehicle that voices told him to steal.  The progress notes show he was discharged from the HSC on 
13 September 2007 and went to live with his mother.

5.  The applicant's record contains a DD Form 616 (Report of Return of Absentee) which shows he surrendered to military authorities at Fort Bragg, NC on 6 February 2008.

6.  The applicant submitted a copy of an SF Form 600 which shows that on 
12 February 2008 he was seen at the Womack Army Medical Center's Mental Health Clinic to finish clinical and administrative tasks which included him asking his chain-of-command to recommend that he be transferred to the Warrior Transition Battalion (WTB) for an MEB and to not pursue administrative action against him due to his impairment which led up to his AWOL.

7.  On 22 July 2008, the applicant underwent a psychiatric reevaluation for the purpose of the MEB and Narrative Summary.  The reevaluation stated that the applicant's first psychiatric entry, which noted anxiety and depression, was in December 2006, 3 months prior to a planned deployment to Kuwait.  The narrative states he was diagnosed and treated for seizures while sleeping in 
29 January 2007 which resulted in him being medically evacuated.  The applicant stated that his "spells" started in 1999 and he was treated with several medications for many years.  The Summary states that he went AWOL from May 2007 (actually April 2007) to February 2008, which was later determined to be associated with an acute psychotic manic episode resulting from an undiagnosed Bipolar Disorder.  No administrative action was taken due to his psychiatric impairment and he was transferred to the WTB.  On 8 January 2007, while he was deployed to Southwest Asia, the in-theater clinic diagnosed him with Anxiety Disorder and on 12 February 2007, he was diagnosed with Attention Deficit Hyperactivity Disorder.  The medical record notes dated 19 January 2007 indicated no history of mania, thought disorder, or psychoses.  The applicant reported no history of major depressive episode or active suicidal thoughts.  The MEB Summary recommended that the applicant be referred to a PEB.  

8.  On 29 October 2008, the PEB found the applicant physically unfit due to a Bipolar Disorder and a seizure disorder.  The applicant was recommended for a combined disability rating of 40 percent rating and permanent medical retirement, if otherwise qualified.  On 30 October 2008, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

9.  Permanent Orders Number 043-03, WTB, Womack Army Medical Center Fort Bragg, NC, dated 9 February 2009, show that the applicant was awarded the Good Conduct Medal (2d Award) for the 3-year period 5 January 2006 through 
4 January 2009.

10.  The remarks column of the applicant's DFAS Military Leave and Earning statement dated 1 to 31 December 2008 shows a military pay/allowance debt balance of $2,838.09.

11.  On 11 February 2009, the applicant was retired honorably due to permanent disability.  He served for 2 years, 5 months, and 20 days during this active duty period.  Item 29 (Dates of Lost Time) of his DD Form 214 shows the entry "None."

12.  The applicant submitted a copy of a memorandum from DFAS, Indianapolis, IN, dated 10 June 2009, which stated that he was in debt to the Department of Defense in the amount of $1,703.39 and a payment of $50.00 was due on         10 July 2009 for overpayment of pay and allowances while he was AWOL from 27 April to 24 May 2007 and DFR from 25 May 2007 to 4 February 2008.  A second enclosure shows that his total entitlement for the period 1 February to   11 February 2009 was $1,745.93 and his total deductions were $3,449.32.  This enclosure also shows a debt in the amount of $1,703.

13.  The applicant submitted a copy of a memorandum from the AW2 Advocate, US Army Wounded Warrior Program, Warrior Transition Clinic, Fort Bragg, NC, dated 7 July 2009, which states that a comprehensive needs assessment conducted on 9 January 2009, revealed the applicant was being medically retired at 40 percent from the Army and that his income was insufficient to support his family of five.  The Advocate states that she contacted the local DFAS 
on 9 January 2009 about cancelling the debt and was told that the only option available was for the applicant to contact his unit commander and request that the AWOL action be rescinded.  The advocate stated that she tried to reach the commander to no avail.  She then contacted the program lawyers and was told to submit a request for remission/cancellation of debt to this Board for consideration. 

14.  Army Regulation 630-10 (Absent Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) states in pertinent part that when a Soldier returns from an absence that appears to be unauthorized, the unit commander informally investigates the case and decides whether disciplinary action should be taken and if the Soldier should be charged with time lost. 

15.  The Department of Defense Financial Management Regulation (DoDFMR), Volume 7A states that when a member is in an unauthorized absence status, an administrative determination must be made as to whether the absence was unavoidable.  If it is not excused as unavoidable, the member forfeits pay and allowances for the period of absence.  If it is not excused as unavoidable, then the member (including one mentally incompetent) forfeits pay and allowances for the period of absence.  This applies even though a court-martial finds the member not guilty of a charge of unauthorized absence or when a finding of guilty has been disapproved by the reviewing authority.

16.  Table 1-12 of DoDFMR, Volume 7A lists the Rules for Unauthorized Absence and Other Lost Time - Effect on Pay and Allowances.  Rule 1 states that when a member is absent from duty due to AWOL and the absence is excused as unavoidable then the member is entitled to otherwise proper credits of pay and allowances.  If the absence is not excused as unavoidable, then the member is entitled to allowances, but not to basic pay, special or incentive pay.

17.  Table 1-13 of DoDFMR, Volume 7A lists the Rules for Determining Whether Absence is Unavoidable.  This table states, in part, that when a member is absent from duty due to AWOL and the absence could not have been avoided by the member or the military authorities then the absence was not due to the member's misconduct.  The absence may be excused as unavoidable.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates that the applicant's chain-of-command essentially excused his lost time when they awarded him the Army Good Conduct Medal (albeit erroneously, since he did not enlist until August 2006 and thus did not complete the required 3-year period for a 2d award of the Army Good Conduct Medal) which included his period of lost time and by not recording any lost time in item 29 of his DD Form 214.  
2.  The applicant's available record indicates that he suffered from a mental illness prior to the period he was AWOL as well as after this AWOL.  His record further indicates that his chain-of-command took no administrative action against him due to this diagnosis.  He was ultimately retired permanently because of his mental illness. 

3.  As such, in the interest of justice and as a matter of compassion and equity, it would be appropriate to excuse the applicant's lost time from 24 April 2007 to 
6 February 2008, waive the applicant’s debt associated with that lost time, and DFAS should conduct an audit to determine the amount recouped from the applicant as a result of his lost time and reimburse him the amount of the debt that was already collected.

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 his period of lost time between 24 April 2007 and 6 February 2008 was excused as unavoidable; and

	b.  as a result of the above correction, voiding the remaining portion of the debt and  restoring to him any monies already paid to satisfy the debt due to lost time between 24 April 2007 and 6 February 2008. 



      _______ _   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)                                         AR20090010942



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ABCMR Record of Proceedings (cont)                                         AR20090010942



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