IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100030515 


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 his debt to the Defense Finance and Accounting Service (DFAS) be forgiven or expunged. 

2.  The applicant states in October 1999, while attending the Infantry Officer Basic Course at Fort Benning, GA, he drove through a pre-planned checkpoint and he was apprehended for driving under the influence (DUI).  He later pled no-contest and was convicted of DUI.  This, combined with an unrelated prior drug use, ultimately led to his elimination from the Army.  He initially owed $82,340.00 (now exceeds $101,981.00 due to interest) to the Government.  This debt is a recoupment of education benefits for an obligation that he did not fulfill.  He had  2 years of enlisted service prior to attending West Point Military Academy.  He was prepared and he made every attempt to fulfill his 5-year obligation and was specifically informed during his April 2002 outprocessing that he would not owe or have to repay the Government anything for his education due to his forced elimination that resulted from his misdemeanor.  However, in March 2002 the Government billed him for approximately $82,340.00 (a prorated amount for his unfulfilled obligation), nearly a year after his discharge.  This debt has made it virtually impossible to establish good credit, buy a car or a house, or obtain a job when a job credit check is required.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored history of military service
* DFAS contact information printout
CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he attended the U.S. Military Academy at West Point, NY, as a cadet from 29 June 1996 to 28 May 1999.  

2.  In connection with his appointment as a cadet at the U.S. Military Academy, he acknowledged that he would be tendered an appointment as a commissioned officer upon graduation and serve under such appointment on active duty for not less than 6 consecutive years.  He also acknowledged the following:

If I voluntarily fail, or because of misconduct fail to complete the period of active duty specified, I would reimburse the United States Government an amount that bears the same ratio to the total cost of advanced education provided me as the un-served portion of active duty bears to the total period of active duty I have agreed to serve.

3.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 29 May 1999.  He entered active duty on the same date and he was assigned to the 2nd Battalion, 11th Infantry, Fort Benning, GA, for completion of the Infantry Officer Basic Course.

4.  On 3 October 1999, he was apprehended by the military police for driving under the influence of alcohol as determined by a properly-conducted test.

5.  On 7 October 1999, he received a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General (CG), U.S. Army Infantry Center, Fort Benning, GA, for his DUI.  The GOMOR stated that not only was his conduct dangerous and illegal, it was also wasteful and totally unnecessary.  His apprehension for drunk driving was an embarrassment to those courageous men and women who selflessly served.  

6.  On 14 December 2000, subsequent to the applicant's acknowledgement as well as the recommendation by his chain of command, the CG directed this GOMOR be placed in the applicant's official military personnel file. 

7.  Subsequent to this incident, by memorandum, the CG notified the applicant that he was required to show cause for retention on active duty because of his misconduct, moral and professional dereliction, and derogatory information.  The CG also notified him that he was recommending a general discharge and advised him of his rights. 

8.  In response, the applicant submitted a rebuttal to the proposed initiation of elimination action against him.  He apologized for the DUI incident and acknowledged that he exercised poor judgment by underestimating the effect of alcohol.  He further recognized the seriousness of his mistake and asked for a second chance.  Additionally, he indicated that he would not submit a request for resignation in lieu of the elimination action.

9.  His immediate, intermediate, and senior commanders recommended his immediate elimination and indicated that he, the applicant, lacked the values and attributes to lead Soldiers in peace or combat.  His misconduct indicated serious maturity, judgment, and character flaws.  

10.  On 31 January 2001, the Deputy Assistant Secretary of the Army (Army Review Board) approved a recommendation of the Army Ad Hoc Review Board and directed the applicant be discharged with an honorable characterization of service.

11.  On 12 March 2001, by message, the applicant was notified that his elimination action was approved and he would be discharged with an honorable character of service.  The message directed that his separation orders would indicate the statement "Officer is a USMA graduate and is subject to recoupment under the provisions of chapter 59, Army Regulation 37-104-3 (Finance Update). Total amount expended on the officer's education is $130,277.00.  This amount should be prorated and the officer is required to reimburse the Government for that portion of the cost of his education not satisfied by active service."  The message also directed the authority for separation as Army Regulation 600-8-24 (Officer Transfers or Discharge), paragraph 4-2b (Misconduct, Moral or Professional Dereliction) and the Separation Code as "JRB." 

12.  He was honorably discharged on 2 April 2001.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 600-8-24, paragraph 4-22 (in error) by reason of "Homosexual Admission" and with a Separation Code as "JRB."  This form also shows he completed 1 year, 9 months, and 4 days of creditable active service.

13.  On 7 March 2002, DFAS established a debt against the applicant in the amount of $82,340.00.  This amount was a prorated amount based on education benefits he received but not satisfied by active service.

14.  On 9 June 2010, subsequent to his petition, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged.  However, the ADRB noted an administrative error with respect to the separation authority, the narrative reason for separation, and the separation code on his DD Form 214.  Accordingly, he was reissued a new DD Form 214 that shows paragraph  4-2b instead of paragraph 4-22 as the authority for his separation, the narrative reason for separation as "Unacceptable Conduct" instead of "of "Homosexual Admission," and the separation code as "JNC" instead of "JRB." 

15.  Army Regulation 37-104-3 provides policies and provisions for entitlements and collections of pay and allowances of military personnel.  Chapter 59 provides for recoupment of educational expenses, e.g., Senior Reserve Officers' Training Corps (SROTC), United States Military Academy, and advanced civilian schooling under previous agreement when obligated active duty service has not been completed.

16.  Title 10, U. S. Code, section 2005, serves as the authority for reimbursements for advanced education assistance.  It states, in pertinent part, that individuals who fail to complete the terms of their advanced education assistance agreement will reimburse the United States for the unserved portion not fulfilled. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was accepted into one of the most elite military academies in the country.  His education was contingent upon serving a minimum of 6 years on active duty.  He acknowledged that if he voluntarily failed, or because of misconduct failed to complete the period of active duty specified, he would reimburse the United States Government an amount that bears the same ratio to the total cost of advanced education provided him as the un-served portion of active duty bears to the total period of active duty he had agreed to serve.

2.  The evidence of record also shows that subsequent to completing his education and less than 6 month into his active service commitment, he was apprehended by military police officials for DUI.  He subsequently received a GOMOR for this serious misconduct.  Following the GOMOR, his chain of command initiated elimination action against him for misconduct.  He was briefed of his rights and submitted a statement on his own behalf.  His discharge was ultimately approved at the Department of the Army level and he was honorably discharged in April 2001.  

3.  Since he did not fulfill his active duty requirements, and as required by law and regulation, he incurred a debt to the Government.  On the surface, the amount appears to be substantial.  However, the cost of education at the U.S. Military Academy is in fact substantial.  His debt is a result of his own wrongdoing.  His actions were clearly a breach of contract and the decision to breach this contract was a voluntary action on his behalf.  

4.  Based on the overall evidence the applicant has not shown an error or an injustice.  He should not be entitled to cancellation of his debt.

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)                                         AR20100030515



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ABCMR Record of Proceedings (cont)                                         AR20100030515



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