PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            30 January 2001   
	DOCKET NUMBER:   AR2000047039

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Ms. Brenda F. Hirschi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his Separation Program Designator (SPD) Code be corrected.  The applicant states that because of his current SPD Code his reenlistment bonus is being recouped.

3.  Records available to the Board indicate the applicant entered active duty on 27 May 1986 and on 27 February 1989 reenlisted for a period of 5 years.  As part of his reenlistment contract he was entitled to a Selective Reenlistment Bonus (SRB).  

4.  On 20 July 1992 a message from the Army’s Personnel Command authorized the immediate discharge of the applicant without entitled to severance pay, under the provisions of Army Regulation 635-40, paragraph 4-24b(4) based on an approved Physical Evaluation Board (PEB) recommendation.  

5.  On 19 August 1992 the Transition Point at Fort Dix, New Jersey issued orders discharging the applicant from active duty under the provisions of Army Regulation 635-40, paragraph 4-24e(4).  The incorrect paragraph number was then transferred to his 19 August 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) and the applicant was issued a SPD Code of “JFR” and item 28 (narrative reason for separation) reflected “Physical Disability without Severance Pay.”  At the time of the applicant’s separation on 19 August 1991 his physical profile was recorded as 1-1-3-1-1-1, indicating a physical profile associated with his lower extremities.

6.  In April 1997 the applicant contracted his congressional representative as a result of a Defense Finance and Accounting Service (DFAS) initiative to recoup his reenlistment bonus.  The applicant noted in that 1997 correspondence that he was medically discharged as a result of a foot condition and that he “can’t get service connected for my foot.”  Ensuing correspondence between the applicant’s congressional representative and officials from the DFAS attributed the recoupment action to his SPD Code.  In a 28 August 2000 letter to the applicant’s congressional representative, DFAS indicated that they would proceed to “collect the unearned portion of the bonus paid to [the applicant] while he was on active duty” unless they were informed by Department of the Army “of the necessary actions to take to resolve [the applicant’s] debt dispute” including “any decision to refund any portion of the debt that we collected.”

7.  Army Regulation 635-40, paragraph 4-24b(4) provides for the involuntary separation of soldiers for physical disability without severance pay.  There is no paragraph 4-24e(4).

8.  Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 25 of the DD Form 214.  Item number 28 will contain the narrative reason for separation, as shown in Army Regulation 635-5-1 based on the regulatory authority and item 26 will reflect the corresponding SPD Code.  

9.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD Code to be used for these stated reasons.  It indicates that "Disability, Existed Prior to Service, PEB” is the appropriate narrative reason for discharge when the authority is "AR 635-40, para 4-24b(4)” and the SPD Code is “JFM.”  SPD Code “JFR” is not associated with any specific paragraph but rather notes “(to be determined)” and the narrative reason is listed as “Disability, other.”  Additionally, Army Regulation 635-5-1 notes that “JFR” signifies involuntary discharge for physical disability not otherwise listed herein but does not identify a specific type of disability that warrants discharge.  It is included in the Army SPD inventory for possible future use should the need arise. A Department of the Army message or other directive would announce implementation and provide instructions for use.

10.  Army Regulation 601-280 states that a soldier who voluntarily, or because of misconduct, fails to complete obligated service for which an SRB was paid will refund a percent of the SRB equal to the percent of obligated service not performed.

CONCLUSIONS:

1.  The evidence clearly indicates the applicant was involuntarily discharged as a result of physical disability.  The fact that he was not entitled to severance pay and the fact that he indicated that he was unable to secure “service-connection” for his foot condition tends to support a conclusion that his disability was determined to have existed prior to his entry on active duty.

2.  It appears that when his separation orders were issued the issuing agency incorrectly recorded a non-existent paragraph number (4-24e(4)) as the authority for his separation which ultimately resulted in utilization of an SPD Code that was intended “for possible future use….”  The authority reflected in the message authorizing the applicant’s separation by reason of physical disability was actually paragraph 4-24b(4).  Had the correct paragraph been utilized the applicant’s narrative reason for separation would have been “Disability, Existed Prior to Service, PEB” and his SPD Code would have been “JFM.”  The applicant is entitled to have his DD Form 214 corrected accordingly.

3.  It was never the intent of Army Regulation 601-280 to recoup reenlistment bonuses for individuals who were involuntarily separated prior to completion of the reenlistment contract when the separation was not the result of misconduct.  There is no evidence the applicant’s disability was the result of misconduct and as such DFAS should not have commenced action to recoup any of his reenlistment bonus.  In view of the foregoing, the Board concludes it would be appropriate and in the interest of justice to waive any remaining indebtedness the applicant may have with DFAS and for DFAS to refund any portion of the debt that has already been collected, including fees, interests, etc. which may have accrued as a result of that indebtedness.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by correcting items 25, 26, and 28 of the applicant’s August 1992 DD Form 214 to reflect “AR 635-40-para 4-24b(4), JFM, and Disability, Existed Prior to Service, PEB” respectively; 

b.  by waiving any remaining indebtedness the applicant may have with DFAS; and

c.  by directing DFAS to refund any portion of the debt that has already been collected, including fee, interests, etc. which may have accrued as a result of that indebtedness.

BOARD VOTE:  

___aao__  ___teo__  _bfh____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000047039	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	128.05	
3.		
4.		
5.		
6.