IN THE CASE OF:	  

		BOARD DATE:	28 February 2012

		DOCKET NUMBER:  AR20110015582


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, remission of his debt resulting from the recoupment of his enlistment bonus following his discharge in 2009.

2.  The applicant states:

* his unit failed to provide him a hearing before an administrative separation board, as he was entitled to given his years of service; therefore, he was improperly separated and his under honorable conditions (general) discharge was improper
* throughout his discharge proceedings, his chain of command failed to consider his mental and medical injuries and otherwise failed to follow established proper procedures as established in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)
* the Army Discharge Review Board (ADRB) agreed with his contentions and upgraded his discharge to Honorable and changed his narrative reason for separation to Secretarial Authority
* accordingly, he was improperly separated and should not have to repay his enlistment bonus

3.  The applicant provides:

* ADRB Docket Number AR20100018080
* DD Form 256A (Honorable Discharge Certificate)
* a 7-page letter from his attorney that accompanied his request for discharge upgrade, submitted to, and considered by, the ADRB in 2011 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 February 2002.  He completed training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He deployed to Kuwait and Iraq from on or about 3 March 2003 to on or about 7 February 2004.  On 4 February 2005, he was honorably released from active duty and transferred to the U.S. Army Reserve.  His DD Form 214 confirms he completed 3 years of net active service during this period.

2.  On 22 April 2008, he again enlisted in the Regular Army for a period of 4 years.  In connection with his enlistment processing, a DA Form 3286 (Statement for Enlistment – United States Army Enlistment Program) was completed.  In Section 2 (Associated Options), he acknowledges, and states his understanding, that his enlistment contract includes a cash bonus in the amount of $15,000.00.  Section 2 contains the specific language, "I understand that if I fail to complete my initial term of Service in the incentivized MOS due to my own misconduct, my bonus will be forfeited and any unearned amount will be refunded…"  

3.  His record shows he deployed to Iraq for his second combat tour, from on or about 28 July 2008 to on or about 31 October 2008.

4.  On 3 August 2009, incident to multiple instances of misconduct and in preparation for his impending separation, his chain of command referred him to Behavioral Health for a mental status evaluation.  He was examined by the Chief, Behavioral Health, a medical doctor.  His DA Form 3822-R (Report of Mental Status Evaluation) contains the remark:

This Soldier meets the retention requirements of Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  He does not meet the criteria for a medical evaluation board (MEB).  In other words, there is no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels.  This Soldier does not have evidence of either Post-Traumatic Stress Disorder (PTSD) or a mild Traumatic Brain Injury (mTBI).

5.  His immediate commander notified him of his intent to separate him under the provisions of Army Regulation 635-200, chapter 14, by reason of a pattern of misconduct.  On 20 August 2009, he acknowledged receipt of the notification memorandum.  


6.  On 27 August 2009, after consultation with counsel, the applicant submitted a memorandum, subject: Election of Rights Regarding Separation under Army Regulation 635-200, Chapter 14-12b, wherein he stated his awareness of the basis for the contemplated action against him, the rights available to him, and the effect of any action taken by him to waive those rights.  In this same memorandum, he requested consideration of his case before an administrative separation board, personal appearance before an administrative separation board, and representation by consulting counsel during his administrative separation board.  

7.  On 31 August 2009, his immediate commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b.

8.  The separation authority approved his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct), and on 24 September 2009 he was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 5 months, and 3 days of his 4-year enlistment at the time of his discharge.  

9.  On 2 March 2011, the ADRB reviewed his request for an upgrade of his discharge.  After carefully reviewing his case, the ADRB determined his discharge was in error because he was not afforded the right to appear before an administrative separation board.  Accordingly, the ADRB voted to upgrade the character of his discharge to fully honorable and to change the narrative reason to Secretarial Authority.    

10.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  This official summarized the main points of the applicant's request:
 
* his enlistment bonus recoupment debt, incurred as a result of his original discharge, should be cancelled since his discharge was improperly completed the first time
* through his attorney, the applicant contends he suffered combat-inflicted brain injuries (although no diagnosis was provided)

Additionally, he offered the following opinion: 

* recent guidance from the Office, Secretary of Defense has brought increased scrutiny in cases involving bonus recoupment for members separated for personality disorder and other combat-inflicted conditions
* although no such designation was made in this case, the application of the rules of "equity and good conscience" would be appropriate in this case given the doubts raised
* as a result of mitigating factors in the applicant's case, he recommended the Board find in the applicant's favor and grant relief

11.  The applicant was e-mailed a copy of the advisory opinion, in order to have the opportunity to respond; however, he failed to respond.  

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) contains the policy for enlistment in the Regular Army and Army Reserve.  Paragraph 9-9 states that persons who do not complete their term of enlistment for which the enlistment bonus was paid, or persons who are not technically qualified in the skill for which the enlistment bonus was paid, may be required to refund the unearned portion of the paid enlistment bonus.  

13.  Title 10, U.S. Code, Section 4837 (Settlement of accounts: remission or cancellation of indebtedness of members) states the Secretary of the Army may have remitted or cancelled any part of the indebtedness of a person of the United States or any instrumentality of the United States incurred while the person was serving on active duty as a member of the Army, but only if the Secretary considers such action to be in the best interest of the United States. 

14.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) prescribes the policies and provides guidance related to the remission or cancellation of indebtedness to the U.S. Army.  Paragraph 1-6 provides that a Soldier's debts to the U.S. Army may be remitted or canceled on the basis of this regulation in cases arising from: payments made in error to a Soldier; payments made in excess of an allowance on behalf of a Soldier; debts incurred while serving on active duty as a Soldier; debts acknowledged as valid; debts for which an appeal has been denied; debts for which a waiver has been denied; and debts established as a result of financial liability of investigation of property loss.

15.  Office of the Under Secretary of Defense Memorandum, dated 21 May 2008, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, modified DoD policy guidance on repayment of unearned portions of bonuses, special pay, and educational benefits or stipends (referred to as “pay or benefit”).  It noted that any failure to fulfill the service requirements specified in a written agreement for such pay or benefits may result in termination of the agreement and the member’s repayment of an unearned portion of the pay or benefit.  However, as a general rule, repayment would not be sought when the conditions of a number of listed circumstances were met.  The memorandum also stated that the Secretary concerned has the discretion to, at some point in the process, render a case-by-case determination that the member’s repayment of, or the Military Department’s full payment of an unpaid portion of, a pay or benefit is appropriate based on the following:

* Contrary to a personnel policy or management objective
* Against equity and good conscience
* Contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for remission of his unearned enlistment bonus debt was carefully considered.

2.  The applicant contends his debt is invalid because his discharge was improperly executed, because he was not afforded the right to appear before an administrative separation board, and because the full extent of his mental and medical condition was not considered during his discharge proceedings.  

3.  His contention that his discharge was improperly executed has merit, given that he was not afforded the right to appear before an administrative separation board.  The ADRB decision of 2 March 2011 supports this point.  In granting his request for a discharge upgrade, the ADRB also changed the narrative reason for his discharge from "Pattern of Misconduct" to "Secretarial Authority."   

4.  He also contends the full extent of his mental and medical condition was not considered by his chain of command.  The evidence of record shows he was examined by the Chief, Behavioral Health on 3 August 2009, prior to the approval of his separation.  The applicant has failed to show he suffered from either PTSD or TBI; to the contrary, the evidence shows he did not suffer from either PTSD or TBI.  Additionally, he has failed to show his mental status evaluation was not sufficiently reviewed by his chain of command prior to their separation determination.  As such, it is reasonable to conclude the results of his examination were considered by his chain of command in his discharge proceedings.   

5.  Nevertheless, despite the fact that the reason for separation was his misconduct, the ADRB determined the separation process was improper.  Therefore, as a matter of equity, it would be appropriate in this case to remit his indebtedness.


BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing the appropriate authority made a timely decision that recoupment of the applicant's enlistment bonus was not required.

2.  The Board further recommends that any payments made by the applicant to settle the indebtedness be returned to him.
      
      
      
      ____________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)                                         AR20110010919



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110015582



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1