IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100013085 


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 waiver of recoupment of the Critical Skills Retention Bonus (CSRB).

2.  The applicant states that upon completion of his fifth combat tour in Afghanistan he was mentally and physically unable to perform as a Special Forces Soldier.  He did not want to leave the Army.  He also states:

* he would never have accepted the CSRB had he known how his mind and body were going to deteriorate
* his body is so screwed up, sometimes he can hardly walk; he has a plate in his arm and can take no weight on it, and he has hearing aids in both ears
* he has been diagnosed with post-traumatic stress disorder
* he sleeps with a gun on either side of him so that he can always get to it quickly
* he can't get "excited" or "happy" about anything
* he has no idea how to support himself and his daughter; he works as a jail guard at $12.00 per hour but it’s a constant struggle not to fall into unrecoverable depression
* his [now divorced] wife gets half of his retirement pay


3.  The applicant provides copies of:

* a 5 January 2005 memorandum from the applicant requesting CSRB
* a 20 January 2007 memorandum from his commander recommending the applicant's approval for retirement with full CSRB benefits
* a 29 August 2008 letter from the applicant to the Defense Finance and Accounting Service (DFAS)
* a 24 February 2009 letter from DFAS to the applicant
* a 11 February 2010 letter from DFAS to a Member of Congress
* his DD Form 214 (Certificate of Release of Discharge from Active Duty)
* court order in his bankruptcy case
* approximately 16 pages of service medical records
* Department of Veterans Affairs (VA) medical records and correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant, then a Special Forces sergeant first class (SFC)/E-7, reenlisted in the Regular Army on 5 February 2002 for an indefinite period.

2.  On his reenlist document the applicant acknowledged the following remarks with his initials:

a.  Regular Army reenlistment option;

	b.  No bonus entitlement;

	c.  No waiver;

	d.  5th reenlistment; and

	e.  I understand that my enlistment is for an indefinite period and that I will be allowed to serve up to my retirement control point for my current rank.  The retention control point for my current rank is 31 January 2010.  I further understand that if I am selected for promotion/promoted, reduced in rank, or become ineligible for continued service I may be further retained or separated IAW [in accordance with] appropriate policies in effect at the time as prescribed by the Secretary of the Army or appropriate law.

3.  The applicant was serving in Afghanistan in January 2005 when he was granted a CSRB of $150,000.00.  The memorandum request included his agreement to serve on active duty for 6 years unless granted a waiver and his 
acknowledgement that he would have to repay any unearned portion of the bonus unless his failure to complete the period of active duty specified was due to:

* death or disability that was not a result of misconduct or willful neglect and not incurred during a period of unauthorized absence
* separation from the service by operation of law or regulation of the Department of Defense or the Army, when waiver for recoupment has been approved by the Secretary of the Army

4.  The Army Human Resources Command, Alexandria, VA (HRC-Alexandria), noted that the applicant's obligated service was extended from 16 January 2005 to 15 January 2011.

5.  The applicant was promoted to master sergeant (MSG)/E-8, with a date of rank of 1 November 2005.

6.  The applicant submitted a DA Form 2339 (Application for Retirement), dated 14 December 2006,  The 3rd Special Forces Group Adjutant General (AG) recommended approval of the applicant's request and, in item 23 of the form, the AG indicated that the applicant had not incurred any service obligation.

7.  In a 20 January 2007 Memorandum for Record the Commander, Combined Joint Special Operations Task Force, Afghanistan noted that the applicant had served five Special Forces tours, totaling 30 months, in Afghanistan.  He recommended the applicant "retire with full CSRB benefits due to Anxiety Disorder NOS [not otherwise specified] and Depression."

8. In early February 2007 the applicant sustained a closed fracture of the right radius just above the wrist.  He was immediately evacuated from Afghanistan and treated at Fort Bragg, NC the next day.  The closed reduction looked good for a couple of weeks, then the bone became misaligned and an open reduction with a titanium plate fixation was performed on 28 February 2007. 

9.  Neither the applicant's retirement orders (Orders 356-0279, issued by the XVIII Airborne Corps, Fort Bragg, dated 22 December 2006), nor his DA Form 2648 (Preseparation Counseling Checklist) mentioned the issue of recouping the CSRB.

10.  The applicant retired on 30 November 2007.  He had completed 21 years,  10 months, and 15 days of active duty.  He had been awarded the Bronze Star Medal (2nd Award), Meritorious Service Medal, Joint Service Commendation Medal, Army Commendation Medal (4th Award), Army Achievement Medal (4th Award), Army Good Conduct Medal (7th Award), National Defense Service Medal (2nd Award), Afghanistan Campaign Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, NATO Medal (3rd Award), Combat Infantryman Badge, Special Forces Tab, Expert Infantryman Badge, Senior Parachutist Badge, and the Air Assault Badge.

11.  In an 11 February 2010 letter to a Member of Congress, a DFAS official explained that the applicant's debt had been reduced to $77,082.83 by giving him credit for time served but that interest and penalties of $7,135.30 had been added.  A payment in the amount of $1,119.30 was received, thereby bringing his current balance due to $84,209.74.

12.  Among the documents submitted by the applicant are: 

* service medical records that show he started seeking mental health counseling as early as October 2006
* post-service medical records that show he was still receiving mental health care from the VA in May 2010
* a VA disability rating that rated him at 70 percent (%) disabled due to service-connected disabilities
* a 24 February 2009 letter from DFAS that explained that the initial indebtedness of $150,000.00 had been reduced to $77,082.83 because of credit for 35 months of completed service

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-2 states, the retirement authority for Active Army Soldiers with less than 30 years of service is HRC-Alexandria.  It may approve, disapprove, or delay the requested retirement date of any Active Army Soldiers in the grade of staff sergeant (SSG)/E-6 (promotable) and above.

14  Paragraph 12-4 states the twenty-year retirement law is Title 10, U.S. Code, section  3914, and provides that a Soldier who has completed 20 but less than 30 years of active Federal service may be retired at their request, provided they have completed all required service obligations at the time of retirement.

15.  A DFAS webpage (www.dfas.mil/army2/bonuses/criticalskillsretention bonus.html) states that approval for waivers of CSRB recoupment must come only from HRC; except for Special Forces cases which must originate with Headquarters, U.S. Army Special Operations Command.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states that recouping the CSRB should be waived because he did not want to leave the Army, but he was incapable of continuing as a Special Forces Soldier.  

2.  The applicant was granted a CSRB in January 2005, for which he incurred a 6-year active duty obligation.

3.  When he applied for retirement in December 2006, the DA Form 2339 failed to indicate that he had incurred a service obligation.  His Special Forces commander in Iraq had recommended that the applicant be allowed to retire and keep the CSRB, specifically because of his mental health problems.  Possibly because the recommendation was made on a Memorandum for Record and not addressed to a higher command, it appears the CSRB recoupment issue was never forwarded to the correct office for consideration of a CSRB recoupment waiver.

4.  The applicant's length of service retirement was permitted by Army regulation.  Considering his service to the Nation as a Special Forces Senior Sergeant who had already served five tours in Afghanistan, and considering his commander's reason for recommending approval of a recoupment waiver, it is reasonable to presume that had a request for CSRB recoupment waiver been considered by the appropriate authority it would have been approved.  

5.  Therefore, the applicant's records should be corrected to show that recoupment of the CSRB was waived by the appropriate waiver authority.

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 he submitted a request to waive recoupment of the CSRB in conjunction with his retirement and that his request was approved by the appropriate authority in a timely manner;
   
   b.  voiding any indebtedness due to CRSB recoupment as a result of the above correction; and

   c.  refunding to him any monies due as the result of the above correction.




      _______ _   _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)                                         AR20100013085



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ABCMR Record of Proceedings (cont)                                         AR20100013085



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