IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015049 


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, to change her general discharge, under honorable conditions to a medical discharge.  She also requests cancellation of an erroneous debt and refund of all monies collected as a result of this error. 

2.  She states she was not given a Medical Evaluation Board (MEB) upon her release from the 419th Transportation Battalion, although she was discharged in October 2008 due to medical reasons.  She contends her orders fail to show her discharge was due to medical reasons and that she was released in October 2008 instead of August 2009.  

3.  She also states that the Defense Finance and Accounting Service (DFAS) recouped monies from her 2010 federal income tax return as a result of a debt for a reenlistment bonus she received and was informed she would be able to retain.  The recoupment of monies has created a tremendous financial hardship for her and her family, and she would like the issue resolved as soon as possible. 

4.  The applicant provides:

* Congressional correspondence
* A copy of her discharge order
* Various letters from the DFAS office
* Two letters 



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.  After having prior enlisted service in the U.S. Marine Corps, she enlisted in the Army National Guard (ARNG) on 12 September 2006.  Prior to her enlistment, she completed a medical examination on 9 September 2006.  The results of this examination showed she had undergone surgery on her right foot 11 years prior; however, she was qualified for service.  Her record is void of a separation medical examination occurring after this date. 

3.  Her record contains Department of Military Affairs, State of Illinois, Springfield, IL, Orders 214-321, dated 2 August 2007.  This order shows she was honorably discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) on 30 May 2007.

4.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows she enlisted in the USAR on 31 May 2007 for a period of 
1 year. 

5.  Her record contains another DD Form 4, which shows she reenlisted in the USAR on 13 October 2007 for a period of 6 years.  This contract included a 
DA Form 3540 (Certificate and Acknowledgment of U.S. Army Reserve Service Requirements and Methods of Fulfillment) that shows in Section XII (Annual Orientation), item 2 (Remarks) she was entitled to receive a bonus in the amount of $15,000.00 for reenlisting in the USAR. 

6.  A copy of Headquarters, 88th Regional Readiness Command, Fort Snelling, MN, Orders 08-007-00003, dated 7 January 2008 shows she was reassigned from the 324th Military Police Detachment to the 419th Transportation Battalion on the same day. 

7.  Her separation packet and her medical records are not available for the Board’s review.

8.  She provided a letter from the Midstate Podiatry Associates, LTD, Bloomington, IL, dated 22 July 2008.  This document shows she had undergone extensive surgery on her right foot on 6 June 2008 and that she had some complications as a result.  She was noted not to be fit for duty and not physically able to perform the duties required of her.   

9.  She provided a copy of Headquarters, 88th Regional Readiness Command, Fort Snelling, MN, Orders 09-194-00008, dated 13 July 2009.  This order shows she was discharged from the USAR on 10 August 2009, with an Under Honorable Conditions (General) characterization of service.  The authority for discharge as cited in this order shows Army Regulation 135-178 (Enlisted Administrative Separations).  No specific paragraph or chapter was listed.  

10.  She provided several letters of indebtedness from the Customer Service Center, Directorate of Debt and Claims Management, DFAS.  These letters range in date beginning 16 December 2009 through 3 July 2010 and show that the applicant’s unit submitted a collection of debt in the amount of $16,135.30 to that office.  She was asked to make monthly installment payments if she was unable to pay the debt in full.  

11.  She also provided a letter from the DFAS office, addressed to her Member in Congress on 20 June 2011, which shows the following:

* The applicant had an indebtedness to the Department of Defense (DOD) in the original amount of $15,000.00 for an obligated service commitment of 72 months 
* It was stated that she received the full amount of the bonus
* After DFAS reviewed her account, the debt of $12,432.97 was decreased to $12,083.38
* The decrease was due to cancellation of her debt for Servicemembers Group Life Insurance premiums from July 2008 through August 2009
* The DFAS office received payments from Department of Treasury Offset Program (TOP) on 15 April 2011 in the amount of $1,127.00 and on 
   13 May 2011 for $4,125.00
* The applicant had a remaining balance of $7,031.37 due
* The applicant was separated from the USAR on 10 August 2009, prior to the completion of her obligated service commitment 
* The debt was forwarded to the DFAS office from the applicant’s last unit of assignment; therefore, DFAS has no authority regarding cancellation or reduction
* The DFAS office would continue collection actions unless the applicant’s records are changed to a discharge reason not requiring collection of the unearned portion of her bonus
* The applicant failed to establish a repayment plan and as a result, her account was reported to the credit bureau network on 22 February 2010 and to the TOP on 27 March 2010

12.  She also provided a letter from her Representative in Congress, dated 1 July 2011.  This letter was addressed to the applicant and stated when she left her unit and moved to California, she failed to provide her unit a forwarding address.  All documents were sent to her last known address and were subsequently returned because she no longer resided at that address.

13.  Her Representative in Congress also stated that the DFAS office maintained that she did not complete drills or she called in to do them at another location.  As a result of her failure to complete the necessary drills, she accumulated enough unexcused absences to be declared an Unsatisfactory Participant and as such her unit processed her out of the Army as an Unsatisfactory Participant and not for medical reasons.

14.  On 2 September 2011, a representative of the DFAS office reviewed the applicant’s Military Master Pay Account (MMPA) and noted that there was no posting of a Reserve Bonus; however, a bonus recoupment had been posted and validated by the USAR in the Defense Debt Management System (DDMS).  The applicant was advised to contact her last unit of assignment for a statement that due to her medical discharge, no recoupment was to be approved.  

15.  On 31 January 2012, further clarification was requested from the DFAS office concerning the applicant’s bonus.  This document shows that the applicant’s MMPA was reviewed and she did receive $16,000.00; however, it was not posted under the bonus section of her MMPA.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 office, grade, rank, or rating.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  

17.  Chapter 8 of the same regulation contains the rules and policies for disability processing of Reserve Component (RC) Soldiers.  It states that an RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It also specifies that this fitness determination is different from a Line of Duty determination, which establishes only whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  

18.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

DISCUSSION AND CONCLUSIONS:

1.  Neither the applicant's separation packet nor her medical records were available for the Board’s review; however, the letter from her Representative in Congress states that the DFAS office showed she was separated from the USAR as a result of unsatisfactory participation and not due to medical reasons.  

2.  Her record is void and she has not submitted substantiating evidence to show that her discharge from the USAR occurred due to medical reasons or that the date of discharge was incorrect.  

3.  As such, there is no basis to change her discharge order to show she separated in October 2008 due to medical reasons. 

4.  The applicant also contends she incurred a debt to the government for collection of her reenlistment bonus which she was informed would not be collected.  

5.  Her records show she reenlisted in the USAR on13 October 2007, with entitlement to a $15,000.00 bonus for serving a period of 6 years, and was discharged on 10 August 2009, with an under honorable conditions characterization of service.  Therefore, she did not complete the required service obligation as outlined in her reenlistment contract.

6.  On 16 December 2009, she received her first notice from the Customer Service Center, Directorate of Debt and Claims Management, DFAS, regarding a debt owed to the government.  She was asked to establish monthly installment payments if she was unable to pay the debt in its entirety.  She was sent subsequent letters regarding the debt, and after receiving no response from the applicant, the DFAS office reported the debt to the Department of Treasury for collection from her 2010 federal income tax return. 

7.  Correspondence from the DFAS office in September 2011 and January 2012, confirms that a review of her MMPA showed she received a payment in the amount of $16,000.00.  It is reasonable to presume that although this money was not listed in the bonus portion of her MMPA, it was in fact paid to her as a result of her bonus entitlement as stated in her reenlistment contract.  

8.  As a result, she is not entitled to the requested relief.

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)                                         AR20110015049





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ABCMR Record of Proceedings (cont)                                         AR20110015049



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