IN THE CASE OF:  	  

		BOARD DATE:  17 March 2015	  

		DOCKET NUMBER:  AR20140010810 


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 the remission/cancellation of his bonus debt.

2.  The applicant states, in effect, that the debt is unjust and unconscionable because he was an exemplary Soldier prior to his deployment to Afghanistan.  He goes on to state that upon his return post-traumatic stress disorder (PTSD) began its intrusion into his psyche and he reenlisted.  However, he began to have problems with his wife and drank to excess from time to time and was discharged.  He continues by stating that he attempted to remain but was told it was too late and he was never informed of any recoupment actions being taken. 

3.  The applicant provides a two-page narrative written by his grandfather and 
co-signed by him, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two pages from his separation packet, and a copy of his notification from the Defense Finance and Accounting Service (DFAS). 

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 12 February 2008 for a period of 3 years and 21 weeks, training as a cannon crewman and a $20,000 Seasonal Enlistment Bonus.  He completed his one-station unit training at Fort Sill, Oklahoma and his airborne training at Fort Benning, Georgia before being transferred to Fort Richardson, Alaska for his first and only duty assignment.  He deployed with his unit to Afghanistan during the period 23 February 2009 – 
19 February 2010.

3.  On 9 September 2010, as a result of difficulties the applicant was having with his wife, the applicant was referred by his commander to mental health for consultation and was subsequently referred to Providence Hospital for evaluation and counseling.

4.  On 21 September 2010, the applicant’s commander received a call from the applicant’s mother-in-law informing him that the applicant was too drunk to come to work.  The applicant was again referred to mental health and then to Providence Hospital for evaluation.

5.  Upon his return he was counseled for failure to go to his place of duty due to being drunk and abusing prescription drugs.   The applicant was referred to the Army Substance Abuse Program (ASAP).

6.  On 22 September 2010, the applicant was moved into the barracks and was told not to go to his home without escort.

7.  On 20 October 2010, the applicant underwent a Behavioral Health Evaluation and was diagnosed with adjustment disorder with depressed mood.  He was psychiatrically cleared for separation under the provisions of Army Regulation 635-200, paragraph 5-17. 

8.  On 24 November 2010, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition that was not a disability.  He cited the applicant’s serious pattern of mental instability as the basis of his recommendation.

9.  After consulting with defense counsel, the applicant elected not to submit a statement in his own behalf. 

10.  The appropriate authority approved the recommendation for discharge on    9 December 2010 and directed that he be furnished an Honorable Discharge Certificate.

11.  Accordingly, he was honorably discharged on 7 January 2011 under the provisions of Army Regulation 635-200, paragraph 5-17 for a condition, not a disability.  He had served 2 years, 10 months and 26 days of active service.

12.  The notification letter from DFAS is undated and indicates that the applicant owes $11,630.68 in unearned bonuses.  The letter advises the applicant that he could contact DFAS to dispute the claim and that he could apply to this Board.  There is no evidence available to show that he contacted DFAS.

13.  The letter from his grandfather states, in effect, that it is unconscionable to require the applicant to repay the bonuses when he was willing to repay them by continuing his service and because he did not leave the Army of his own accord.  He continues by stating that the applicant spent the money trying to save his marriage and eventually had to file for bankruptcy.  He still suffers from depression and the recoupment action makes matters worse for him.

14.  A review of his official records failed to reveal a reenlistment contract.

15.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) serves as the authority for processing applications for remission/cancellation of indebtedness.  It states a debt to the government may be cancelled if it is determined that, based on the information received, an injustice or hardship, or both, exist.  It also states that the Soldier’s awareness of policy and procedures will be considered as well as whether or not the Soldier inquired of proper authority and was told that the payment was correct.

16.  The Department of Defense (DOD) Military Pay and Allowances Entitlements Manual sets forth statutory provisions for entitlements, deductions, and collections and establishes DOD policy on pay and allowances.  Volume 7A, chapter 9 (Special Pay-Enlistment and Reenlistment Bonus-Enlisted Members) provides that action will be taken to stop and recoup (if necessary) any portion of an enlistment or reenlistment bonus when the member has failed to complete the term of service contracted for in the bonus contract due a member's own misconduct or other reasons within the member’s control.





DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his bonus debt should be cancelled because he did not leave the Army of his own accord has been noted and appears to lack merit.

2.  The applicant contracted to be paid the bonus monies in question in return for his continued satisfactory service and he failed to complete his obligation in that respect.  It appears that he was unable to resolve his marital issues and maintain his responsibilities to the Army simultaneously.

3.  There is no evidence to show that he disputed the debt with DFAS and he has failed to provide evidence to show that payment of that debt would constitute an undue hardship.

4.  Therefore, it appears that his debt is valid and since there appears to be no error or injustice in this case, there is no basis for grantinig his request for remission or cancellation of his debt.

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)                                         AR20140010810





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ABCMR Record of Proceedings (cont)                                         AR20140010810



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