IN THE CASE OF:	   

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007192 


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, cancellation of the recoupment action involving the unearned portion of his non-prior service enlistment bonus (NPSEB).

2.  The applicant states the Leave and Earnings Statement (LES) he provides shows he served 4 years, but his unit reported 28 months of service in 2012 due to a false record.

3.  The applicant provides a letter of indebtedness from the Defense Finance and Accounting Service (DFAS) and a DFAS Form 702 (DFAS Military LES), dated   1 April 2014.

CONSIDERATION OF EVIDENCE:

1.  On 2 March 2010, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years.  In connection with his enlistment, he and a service representative signed a Selected Reserve Incentive Program (SRIP) Enlistment Bonus Addendum.

	a.  Section IV (Obligation) shows he agreed to serve his initial 6 years in the USAR in a bonus unit or bonus MOS.

	b.  Section V (Entitlement) shows, in pertinent part, the entry, "I am entitled to the NPSEB in the amount of $5,000."  It further states that the bonus payment would be as follows:
* initial payment of 50 percent of the total authorized bonus amount after he received his high school diploma, completed his initial active duty for training, and qualified in his contracted military occupational specialty (MOS)
* the remaining unpaid portion of the NPSEB would be paid in two subsequent payments of 25 percent of the total bonus amount upon successful completion of the 2nd and 4th year of the enlistment term of service

	c.  Section VI (Suspension) shows he acknowledged that he understood that under certain conditions he could be suspended on a one-time basis for a specified period from the incentive program rather than being terminated.  Paragraph 3, states that if he entered a period of service where favorable personnel actions on his behalf were suspended, entitlement to subsequent bonus payment would also be suspended.  If otherwise eligible, he would be entitled to receive bonus payments when the suspension had been favorably lifted.

	d.  Section VII (Termination), paragraph 4, states his entitlement to the enlistment bonus would be terminated should he be separated from his status as an enlisted Soldier assigned to a unit of the Selected Reserve, except for specified reasons.

	e.  Section VIII (Recoupment) states if his entitlement to the enlistment bonus was terminated for a reason listed in paragraphs 1-7 of section VII above, he may be subject to recoupment action.  The recoupment amount would be calculated by multiplying the number of full months served satisfactorily during the incentive term by the proportionate monthly dollar amount.  Based on this calculation, overpayment would be recouped or he would be reimbursed if he earned more than he had received.

2.  He attended basic training from 15 June 2010 to 27 August 2010.  He completed advanced individual training and effective 6 December 2011, he was awarded MOS 91B (Medical Specialist).

3.  On 3 March 2012, he tested positive for tetrahydrocannabinol (commonly known as THC).  He was flagged for a field initiated-elimination. 

4.  On 4 May 2012, the applicant's commander notified the applicant that he was initiating separation action against the applicant under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 12, for abuse of illegal drugs.  The notification memorandum was mailed to the applicant via certified mail, and was signed for by an individual with the applicant's last name, at the applicant's known address, on 16 May 2012.

5.  The applicant's commander recommended his discharge from the USAR under the provisions of Army Regulation 135-178, chapter 12.

6.  On 18 June 2012, the separation authority approved the recommendation to discharge the applicant and directed that he be given an under other than honorable conditions (UOTHC) discharge.

7.  Headquarters, 81st RSC Orders 12-185-00017, dated 3 July 2012, discharged him from the USAR effective 8 July 2012 with a UOTHC discharge.

8.  Headquarters, 81st RSC Orders 12-258-00001, dated 14 September 2012, revoked Orders 12-185-00017 discharging him from the USAR effective 8 July 2012 due to the orders being inadvertently issued due to an administrative error.

9.  On 20 November 2012, he requested a conditional waiver of his separation which with approval would suspend his UOTHC separation for 12 months and if he satisfactorily performed his duties the separation action would be withdrawn and the UOTHC discharge would be expunged from his record.

10.  On 8 December 2012, the separation authority suspended the UOTHC discharge until 8 December 2013.

11.  A DFAS account statement, dated 17 December 2012, indicates he was indebted to the government because his unit reported that he had only satisfactorily completed 28 months of his contracted service.  The statement further indicated he should contact his unit if he did not agree with the months of service.

12.  A DFAS letter with an illegible date, addressed to the applicant, states upon review of his account they had determined his debt in the principal amount of $1,805.56 remained valid.  His current balance at the time of the letter was $1,125.68.  They stated the debt was due to an unearned portion of his SRIP enlisted bonus.  The pay records indicated his unit had reported satisfactory performance for 28 months, leaving the remainder to be recouped.

13.  On 22 September 2013, he tested positive for THC a second time.

14.  On 24 December 2013, he was flagged for adverse action (drug abuse).

15.  He was processed for discharge.  On 7 April 2014, the separation authority approved the recommendation to discharge the applicant and directed that he be given a UOTHC discharge.
 
15.  Headquarters, 81st RSC Orders 14-100-00065, dated 10 April 2014, discharged him from the USAR effective 15 April 2014 with a UOTHC discharge.

16.  He provides an LES which shows 4 years in the years of service block.

17.  An advisory opinion was obtained from the Reserve Incentives Program Manager, Office of the Deputy Chief of Staff, G-1, dated 9 July 2014, in the processing of this case which recommends denial of the applicant's request.

	a.  The opinion states the applicant provides an LES that indicates 4 years of service as proof he successfully completed the time necessary to keep the full amount of his bonus.  An LES, however, does not indicate the nature of a servicemember's performance.  It only reflects the service for pay purposes.

	b.  The applicant was discharged UOTHC for abuse of illegal drugs prior to completion of his contracted term of service.  Besides being discharged, the applicant did not satisfactorily complete the required number of months of service to earn the full amount of his enlistment bonus, since he missed a number of unit assemblies prior to his discharge.  Additionally, he enlisted under the "split-training option" which allowed him to complete basic training during his first year of service and advanced training the following year.  Bonus eligibility begins after the Soldier has completed advanced training, at which time he is considered qualified in his or her MOS.  The USAR calculated 28 months of satisfactory participation, with which the advisory official concurred.  The advisory official recommended denial of the applicant's request for relief from recoupment. 

18.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond in the time allotted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted for a $5,000.00 NPSEB in critical skill MOS 91B for a period of 6 years.  On 3 March 2012, he was flagged for elimination.  This resulted in suspension of his entitlement to bonus monies.

2.  He was initially discharged from the USAR effective 8 July 2012, prior to his expiration term of service for abuse of illegal drugs.  Therefore, he did not fulfill his contractual agreement.  Based on his being flagged and his discharge, DFAS initiated recoupment action on the unearned portion of his bonus already paid.

3.  His discharge orders were revoked due to suspension of his discharge for 12 months on the condition that he would not have any more incidents.  In September 2013 he again tested positive for THC, was again flagged for adverse action, and was discharged effective 15 April 2014.  There is no evidence either flag was ever favorably lifted prior to his discharge.  Accordingly, it appears that based on his contract his enlistment bonus should have been terminated with recoupment effective 3 March 2012.

4.  His bonus payment history is not available for review.  However, it appears he met the criteria for the initial bonus payment of 50 percent ($2,500) and was paid the second installment of 25 percent ($1,250) for a total of $3,750.  Based on 28 months of satisfactory service, which the USAR credited him with, he would have earned $1,944.44 of the $3,750 he was paid on his bonus resulting in a debt of $1,805.56 to the Government.

5.  In view of the foregoing, there is an insufficient 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 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)                                         AR20140007192



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ABCMR Record of Proceedings (cont)                                         AR20140007192



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