IN THE CASE OF:	  

		BOARD DATE:	    21 June 2011

		DOCKET NUMBER:  AR20100026565 


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 that his record be corrected to show his discharge as "service connected" in order for him to clear the recoupment action against him by the Department of Defense and to have seized funds by same returned.

2.  He states that:

   a.  his Representative in Congress helped him obtain documentation that shows he received an honorable discharge as a result of being found unfit for duty by a medical board; 
   
   b.  his reenlistment bonus should have been terminated without recoupment;  and
   
   c.  these findings were certified by the Deputy Director and Deputy Chief of Staff, G-1 H---m  F. W---y.

3.  He provides no additional documents.

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 7 July 2003, having prior active duty service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR).  He reenlisted in the USAR on 19 October 2006.

3.  His record contains a DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 22 April 2006, which shows in item 8 (Explain any Positive Answers Given Above):

* current medical condition is asthma
* bilateral hearing loss and depression
* headaches continue to worsen
* taking five medications
* receiving 40 percent disability from the Department of Veterans Affairs

4.  He did not submit nor does his record contain any information that shows these conditions occurred in the line of duty.

5.  His record contains a DD Form 2807-1 (Report of Medical History), dated 2 March 2006, which shows in item 6 that he underwent a USAR retention physical. 

6.  His record contains a DD Form 2808 (Report of Medical Examination), dated 2 March 2006, shows:

* item 74 (Examinee/Applicant) he was not qualified for retention
* item 76 (Significant or Disqualifying Defects) Asthma, Hearing, and Depression
* Item 77 (Summary of Defects and Diagnoses) Asthma, uncontrolled chronic obstructive pulmonary disease (COPD); Knee pain; hyperlipidemia; and hearing loss 

7.  His record contains a Standard Form 507 (Clinical Record), dated 22 April 2006, which shows he stated that his asthma prevented him from performing his military duties.  Item 18d (Does your Asthma prevent you from wearing a protective mask) which shows "YES" and that he was relieved of his firefighter duties.

8.  His record contains a DA Form 3349 (Physical Profile), dated 17 October 2006, which shows he was issued a permanent, level 4, physical profile for severe asthma, COPD, hearing loss, decrease in vision, and depression.  His DA Form 3349 also shows:

	a.  Item 4c (If a Permanent Profile with a 3 or 4, Does the Soldier Meet Retention Standards in Accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) "Needs MEB/PEB (Medical Evaluation Board/Physical Evaluation Board); and 
   
   b.  item 10 (Other) shows that he did not meet the Army medical retention standards. 

9.  His record contains a DD Form 4/1 (Enlistment/Reenlistment Document) which shows he reenlisted on 19 October 2006 with the understanding that the effective day of his reenlistment was one day following his current expiration of service date of 9 December 2006.  Therefore, the effective date of his reenlistment was 10 December 2006 and he understood that bonus payments would begin on the execution date.  

10.  His record contains a DA Form 3540 (Certificate and Acknowledgement, USAR Service Requirements and Methods of Fulfillment (Reserves Annex) dated 19 October 2006.  This document contains the following pertinent information:

   a.  Section IV (Service Obligation) of this document shows he reenlisted in the USAR. 

   b.  Section XII (Annual Orientation), item 2, of the DA Form 3540 shows he reenlisted for a period of 6 years for a bonus of $15,000.00 with lump sum payment to be paid him upon providing proof of his contract and his qualification at time of payment.

11.  His record contains a DA Form 5261-5 (Selected Reserve Incentive Program - USAR Prior Service Enlistment Bonus Addendum), dated 11 August 2006.  This document contains the following pertinent information:

	a.  Section III (Acknowledgement), item 4, shows he was qualified in MOS 21M which was approved as a bonus MOS and correlated to the position vacancy for which he was enlisting.

	b.  Section IV (Obligation) shows he enlisted for a period of 6 years. 

	c.  Section VII (Termination) shows the reasons for which his entitlement to the prior service enlistment bonus would be terminated.  Item 4c provides recoupment action would not occur in the event he was separated from enlisted status as a result of death, injury, illness, or other impairment not the result of his own misconduct.

12.  His record contains a DA Form 5435-1 (Statement of Understanding – the Selected Reserve Montgomery GI Bill (MGIB)), dated 19 October 2006, which shows that in connection with his reenlistment he was assigned to a unit authorized the MGIB-SR Kicker in MOS 00G1O/21M2O, 1st Brigade, 100th Division.  Section VII (Termination), item 5 and 5b show that his MGIB-SR Kicker would terminate without recoupment when discharged, transferred, or reassigned from the Selected Reserve if he failed to meet qualification for membership in the Selected Reserve under law or regulation, to include medical fitness standards.

13.  The complete facts and circumstances surrounding his separation are not contained in the available records; however, his record contains Headquarters, 88th Regional Readiness Command, Fort Snelling, MN, Orders 08-204-00141, dated 22 July 2008.  These orders show that on 16 August 2008, he was discharged honorably from the USAR in accordance with Army Regulation 135-178.

14.  He provides a letter sent to his Representative in Congress by the Deputy Chief of Staff, G-1, USAR Command, Fort McPherson, GA, on 30 September 2010 in response to the Representative's inquiry on behalf of the applicant regarding recoupment of his USAR reenlistment bonus.  The memorandum states that the applicant was previously assigned to the 88th Regional Support Command.  He reenlisted on 19 October 2006, for a 6-year, $15,000 reenlistment bonus.  He was medically boarded and determined unfit for duty and was separated from military service on 16 August 2008.  The G-1's research determined that his bonus should have been terminated without recoupment.  Unfortunately, his pay record had been purged due to his separation.  

15.  An analyst from this agency contacted the U.S. Army Physical Disability Agency (USAPDA) in an attempt to obtain a copy of his MEB and/or PEB.  The PDA informed the analyst that they did not have a record of his appearing before an MEB or a PEB.  


16.  References:

   a.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) provides that Soldiers must meet the medical retention standards as prescribed in chapter 3, Army Regulation 40-501, or have been found physically qualified to perform in his or her primary MOS per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  
   
   b.  Army Regulation 40-501, paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Paragraph 9-10a states that normally Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per Army Regulation 135–175 or Army Regulation 135–178.

	c.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating due to injuries or illnesses that occurred while the Soldier was entitled to base pay.  Chapter 4 of this regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army and makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

   d.  Title 31, Code of Federal Regulations, subsection 285.11 provides procedures for Federal agencies to collect money from a debtor's disposable pay by means of administrative wage garnishment to satisfy delinquent nontax debt owed to the United States.  This section applies to any Federal agency that administers a program that gives rise to a delinquent nontax debt owed to the United States and to any agency that pursues recovery of such debt.  This section shall apply notwithstanding any provision of State law.  Nothing in this section precludes the compromise of a debt or the suspension or termination of collection action in accordance with applicable law.
   
   e.  Chapter 9, Volume 7A of the DODFMR provides that recoupment of the unearned portion of an enlistment bonus is not required for enlisted members 
who are discharged prior to completion of the term of service for which the bonus was paid due to injury, illness, or other impairment not the result of their own misconduct.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the memorandum from the Deputy Chief of Staff, G1, USARC stating that applicant was medically boarded, found to be unfit for duty, and was separated from military service on 16 August 2008 with an honorable discharge, the PDA stated that there is no record of him appearing before an MEB or a PEB nor did he present information that shows his condition occurred in the line of duty.  

2.  In accordance with Army Regulation 140-111, in order to reenlist, a Soldier must be found to be medically fit at the time of reenlistment.  Evidence of record shows that the applicant's reenlistment physical resulted in him being found not fit for Army medical retention standards on 17 October 2006, due to a chronic malady, asthma, that failed to meet retention standards.  However, evidence also shows that on 19 October 2006, a 6-year reenlistment contract was executed with an effective date of 10 December 2006 and a $15,000.00 lump sum bonus to be effective the same date.  However, by regulation, he was medically unfit and therefore ineligible for reenlistment.   

3.  As a result of him being found to be medically unfit, he was discharged with an honorable discharge but there is no indication that his honorable discharge was the result of a service-connected injury or illness.  

4.  As a result of him being found to be unfit for retention prior to the initiation or effective date of his reenlistment contact he is not entitled to have his record corrected to show that he was entitled to receive a $15,000.00 lump sum bonus as a result of this erroneous reenlistment.

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 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)                                         AR20100026565



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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