IN THE CASE OF:	  

		BOARD DATE:	    7 May 2014

		DOCKET NUMBER:  AR20130013887 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in item 26 (Separation Code) the code "KDB" and in item 28 (Narrative Reason for Separation) the reason as "Unable to Continue Service due to Death of a Child/Hardship." 

2.  The applicant states that items 26 and 28 on his DD Form 214 do not accurately reflect why he actually discontinued his service.  He goes on to state that he could no longer serve because of the death of his 4-year old daughter and his DD Form 214 should reflect such.  Additionally, this error and injustice had caused the Defense Finance and Accounting Service (DFAS) to recoup his Selective Reenlistment Bonus (SRB). 

3.  The applicant provides pertinent pages from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 6, three pages of medical records, a list of separation codes, and a copy of his daughter’s death certificate.

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.  The applicant enlisted in the Regular Army on 11 September 1996.  He completed his training as a helicopter repairer and continued to serve through a series of continuous reenlistments.  He was promoted to staff sergeant/ E-6 on 
1 March 2006.  

3.  On 7 February 2008, he reenlisted for an indefinite period of service and a Selective Reenlistment Bonus (SRB). 

4.  The applicant was stationed at Fort Eustis, Virginia as an instructor on            4 December 2010 when his daughter passed away at the age of 4.  

5.  The facts and circumstances surrounding his discharge are not present in the available records; however, his records do contain a duly authenticated DD Form 214 showing that he was honorably discharged on 14 March 2011, under the provisions of Army Regulation 635-200, chapter 4, due to completion of required active service.  He had served 14 years, 6 months, and 4 days of active service.

6.  The medical records provided by the applicant show that he was seeking treatment from behavioral health for anxiety and depression.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 of that regulation provides for the separation of personnel because of genuine dependency or hardship.  An application for such separation will be approved when a service member can substantiate that his or her situation or immediate family's situation has been aggravated due to an excessive degree since enlistment, that the condition is not temporary and that the discharge will improve the situation.

8.  Paragraph 6-3a of this regulation provides that dependency exists when death or disability of a member of the Soldier's immediate family cause that member to rely upon the Soldier for principal care or support.

9.  Paragraph 6-3b of this regulation provides that hardship exists when in circumstances not involving death or disability of a member's immediate family, separation from the Service will materially affect the care and support of the family by alleviating undue and genuine hardship.

10.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in:

   a.  section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202; and

   b.  section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department 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 one or more of the following: 

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

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes provides that the SPD for separation for "Hardship" is "KDB."  The Reentry Code is a "3."  There are no provisions for entering the narrative reason of "unable to continue service due to the death of a child" on the DD Form 214.

12.  Army Regulation 635-200 (Enlisted Personnel) provides that Regular Army Soldiers serving on indefinite reenlistments desiring a voluntary separation must submit requests through their chain of command to the U.S. Army Human Resources Command (HRC).  If requests are approved, Soldiers will be separated under the provisions of chapter 4 as they are considered to have fulfilled their active duty service obligations. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been noted and appear to have some merit.  The applicant has not provided and the records do not contain the facts and circumstances leading up to his discharge and there is no evidence to show that he applied for a hardship discharge. 

2.  The applicant’s DD Form 214 shows that he was discharged due to completion of required service; however, the applicant reenlisted on 7 February 2008 for an indefinite period which would have required some sort of application from the applicant in order to be discharged or retired because he had not reached the expiration of his term of service (ETS).

3.  Although there are no facts and circumstances available, it is reasonable to presume given the circumstances in this case that his administrative discharge was properly accomplished with no violations of any of his rights.  Accordingly, in the absence of evidence to show otherwise, there appears to be no basis to change the narrative reason for his separation. 

4.  However, the evidence of record shows the Secretary of the Military Department concerned has the discretion to render a 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 it being contrary to a personnel policy or management objective or against equity and good conscience.

5.  After careful review of the applicant's case, it is concluded that repayment action should not be pursued because the applicant's inability to fulfill specified service conditions related to the bonus was due to circumstances that were reasonably beyond the member's control.

6.  Therefore, in view of the foregoing, it would be appropriate to correct the applicant's records by cancelling the recoupment action pertaining to his SRB. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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 partial 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 approved a request for the applicant to retain his SRB as recoupment of the bonus would be against equity and good conscience, thereby cancelling the recoupment action pertaining to his SRB.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the Narrative Reason for Separation on his DD Form 214.  




      ____________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)                                         AR20130013887



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ABCMR Record of Proceedings (cont)                                         AR20130013887



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