IN THE CASE OF:	  

		BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110016610 


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, correction of his records to show:

* he was not absent without leave (AWOL)
* he was not overpaid during the period August 2008 through March 2009
* reduction of his enlistment bonus

2.  The applicant states:

* he was not AWOL and was in contact with his unit while he was home
* he was considered to have mental distress such as personality disorder, slight schizophrenia, as well as a severe case of methicillin-resistant staphylococcus aureus which was highly contagious
* he was instructed by physicians to avoid contact and traveling as long as these conditions persisted
* he kept his command informed with his situation and followed direct orders to fulfill his obligations to the military within the boundaries of his state of health
* he was "chaptered out" of the Army through a medical discharge
* his chain of command told him to go to Great Lakes Naval Base in order to be evaluated
* he was informed he should be discharged under medical reasons
* this was not substantial enough for terms of discharge from the Army
* he remained in contact with his command and was attending the Naval hospital course to go back to civilian life
* Captain H____ scheduled him for an appointment at Fort Campbell, KY, in order to be evaluated to see if he was fit for duty

* he went to this appointment as well as to the Naval hospital during the time he was allegedly AWOL
* he was informed he was not fit for duty and that the proper paperwork would be sent to his command for discharge
* he later received an honorable discharge

* he is still trying to obtain records from Fort Campbell, KY, as well as records from the Great Lakes Naval Base on his attendance of the class for military personnel transitioning to civilians
* he was following the procedures that were presented to him and did not intend to be put in this mishap
* he understands the enlistment bonus may be partially paid due to not fulfilling the terms of his enlistment
* he is not claiming that he does not owe but rather that the amount due should be reconsidered due to his situation
* he is currently employed as a contractor but his work varies and is not stable due to the economy and other stipulations
* he lives check-to-check and believes the issues can be settled in a manner that is best suited for both parties

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program on 22 December 2005.

2.  On 22 December 2005, the applicant signed a DA Form 3286 (Statement for Enlistment – U.S. Army Enlistment Program – U.S. Army Delayed Enlistment Program) which authorized a $6,000.00 enlistment bonus for his enlistment of 3 years in military occupational specialty (MOS) 31B (Military Police).

3.  He was discharged from the U.S. Army Reserve on 7 February 2006 and enlisted in the Regular Army on 8 February 2006 under the terms of his enlistment document.  He completed training and was awarded MOS 31B.

4.  A DA Form 4856 (Developmental Counseling Form), dated 30 April 2007, shows the applicant and another Soldier were involved in a verbal altercation on 28 April 2007 that led to simple assault.  The applicant was placed on dry status (no alcohol) and advised of the procedures and consequences, to include repayment of any unearned bonus received for enlistment, if he were separated from the military prior to his end of term of service.

5.  The applicant's complete discharge packet is unavailable.  His discharge packet contains the following information:

	a.  On 21 June 2007, the applicant received a DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice) for the 28 April 2007 incident.

	b.  On 30 December 2007, a legal review of the applicant's proposed separation packet was requested.  On 5 February 2008, the proposed discharge was found legally sufficient under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for other physical/mental condition.

	c.  On 11 May 2008, a Red Cross message informed the applicant of the death of his grandmother and requested his presence to assist his family.

	d.  A memorandum for record from his platoon leader, dated 15 August 2008, states:

* the applicant was originally denied emergency leave

* the applicant was calm when the request was denied and accepted the decision

* after a change of command, the applicant's emergency leave was granted
* the applicant showed no signs of mental distress prior to going on emergency leave
* when the applicant did not return, his leadership contacted him to find out why the applicant was not returning to the theater

*	the applicant explained he was sick and could not return
* over the next month, his leadership contacted him and his family through email and telephonic traffic regarding his physical and mental condition and his return to the theater
* it was eventually communicated that the applicant would be seeking a discharge from the Army
* it was soon after this that all elements of his platoon's chain of command stopped contacting him and the company and battalion took over all communications

* the applicant was released from the theater of operations after not returning from emergency leave in June 2008

	e.  On 20 August 2008, the applicant's command sergeant major (CSM) sent an email to the Compliance Officer, Department Head, Patient Affairs, Great Lakes Naval Hospital, in an attempt to contact the applicant and check his medical status.  The following response states:

* the applicant was seen at a network hospital, believed to have been just before 4 July 2008
* he was discharged on or about 6 July 2008
* his mother took him to a network hospital when Great Lakes Naval Hospital medical personnel told him that he needed to contact his unit since his initial medical diagnosis was stable and the doctor treating it stated he was ok to travel
* the applicant and his mother stated there were other conditions that needed to be diagnosed

* both were advised that the applicant needed to be seen by a doctor and under current treatment and that a history of a diagnosis was insufficient

* the applicant's mother took him for the week or weekend to an inpatient unit close to their house
* the Great Lakes Naval Hospital staff was unable to track him once he was discharged because he was not an inpatient
* he was with his mother and step-mother

* both restricted the Great Lakes Naval Hospital staff's ability to talk with the applicant
* both were told the applicant needed to stay in communication and follow through with the way his command wanted to treat his diagnosis
* both were told of the consequences if the applicant did not do so since his unit was deployed
* both said they understood

* communication attempts by the Great Lakes Naval Hospital staff were halted with the applicant once communication began with the applicant's CSM

* Great Lakes Naval Hospital staff personnel were only able to speak with the applicant once and other times the phone rang or they were told they could not talk to him

	f.  A DA Form 4187 (Personnel Action), dated 20 August 2008, shows the applicant was declared AWOL on 20 August 2008.

	g.  A DA Form 4187, dated 20 September 2008, shows the applicant's status changed from being AWOL to being dropped from the rolls on 20 September 2008.

	h.  A U.S. Army Medical Command Form 699-R (Report of Mental Status Evaluation), dated 30 October 2008 and revised on 3 November 2008, shows the applicant underwent a mental status evaluation as required for chapter separation proceedings on 27 October 2008.  The report shows the following:

   	*	his behavior was rated "normal"
* his level of alertness was rated "fully alert"
* his level of orientation rated "fully oriented"
* his mood or affect was rated "anxious"
* his thought content was rated "normal"
* his memory was rated "good"
* he was diagnosed with the following –

* axis I – adjustment disorder with mixed anxiety and depressed mood, anxiety disorder, not otherwise specified (NOS)
* axis II – personality disorder, NOS, with borderline and passive-aggressive features
* axis III – none

* he had a recent period of inpatient psychiatric hospitalization for suicidal and homicidal ideation
* he presented with significant psychiatric issues that were likely to prevent him from functioning effectively in a military environment
* he was capable of understanding and participating meaningfully in the chapter proceedings and was cleared for separation

	i.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 5 November 2008, shows an elimination flag was executed with an effective date of 7 August 2008.

	j.  On 23 January 2009, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 5, by reason of other physical or mental condition.

	k.  Having been advised by consulting counsel, he acknowledged he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he were issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life.

	l.  The brigade commander directed the applicant's discharge, completion of a final DA Form 268, and denial of his transfer to the Individual Ready Reserve to complete any statutory service obligation.

	m.  The applicant was honorably discharged on 12 March 2009.  He completed 3 years and 5 days of active service.

6.  Item 18 (Remarks) of the applicant's DD Form 214 shows he was paid an enlistment bonus of $6,000.00.

7.  Item 28 (Dates of Lost Time During this Period) of the applicant's DD Form 214 shows the entry "20080820-20080919" (20 August 2008 through 19 September 2008).

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 provides for separation for the convenience of the government.  Paragraph 5-17 provides for discharge for other designated physical or mental conditions.  Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 (separation of personnel who did not meet procurement medical fitness standards) or 5-13 (separation because of personality disorder) that potentially interfere with assignment to or performance of duty.

9.  Office of the Under Secretary of Defense (Personnel and Readiness) memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits of Stipends, allows the Secretary concerned the discretion to render a case-by-case determination that a member's repayment of or the Military Department's full payment of an unpaid portion of a pay or benefit is appropriate based on:

* contrary to a personnel policy of management objective
* against equity and good conscience
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to be without merit.

2.  The applicant signed an enlistment contract with addenda, including a DA Form 3286.  He was required to serve for a period of 3 years in accordance with his enlistment contract.  He clearly did not meet this criteria and recoupment action was justified.

3.  Records show the applicant was granted emergency leave; however, he did not return to his unit in June 2008.

4.  Although he contends he was following the procedures that were presented to him, his DA Form 4187 and an email between his CSM with the Compliance Officer, Patience Administration, Great Lakes Naval Hospital show he failed to follow procedures and instructions.

5.  Further, his DA Form 4187 shows his chain of command gave him the benefit of doubt and did not declare him as being AWOL until 20 August 2008.  Therefore, by law any pay he received while in an AWOL status is subject to recoupment.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110016610



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ABCMR Record of Proceedings (cont)                                         AR20110016610



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