MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       .

	BOARD DATE:             29 June 2000
	DOCKET NUMBER:    AR1999030444

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

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Jo Ann H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his separation program designator (SPD) code, reentry (RE) code, separation authority and narrative reason for separation be changed to reflect the Honorable Discharge issued to him as a result of the Army Discharge Review Board (ADRB).  He also requests restitution of his 1988 income tax be restored to him as a result of the reenlistment bonus which was recouped due to his unjust discharge which he should not have to pay back.

APPLICANT STATES:  In effect, that his SPD code, RE code, separation authority and narrative reason are incorrect.  He also states that his wages were garnished from his income since 1988 to repay his reenlistment bonus, which he received at the time of his second enlistment.  In support of his application he submits copies of his DD Forms 214 (Under Honorable Conditions and Honorable – both dated 24 September 1982), copy of DA Form 2139 (Military Pay Voucher), dated 24 September 1982, copy of FH Form 1841 (Notice of Indebtedness to the United States Government), dated 24 September 1982, a letter from the Department of the Army, US Army Reserve Personnel Center, dated 27 February 1986, copy of DA Form 2 (Personnel Qualification Record Part 1 and Part 11) and several character references.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted on 27 March 1979 for a period of 3 years as a light weapons infantryman (11B).  He continued to serve until he was honorably discharged on 27 December 1981 in order to reenlist.  He reenlisted on 28 December 1981 for a period of 6 years as a heavy anti-armor weapons crewman (11H).  

The applicant’s DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 28 December 1981, item 10b (Remarks) shows the entry ”CONUS TO CONUS STATION OF CHOICE REENLISTMENT (FT HOOD,TX) (FOTH) RCN: 872559 SRB 2A (SM ELECTS LUMP SUM PAYMENT OF SRB) 11H NONE 1ST REENLISTMENT” which indicates that the applicant was entitled to a Selective Reenlistment Bonus (SRB).

On 27 July 1982, nonjudicial punishment (NJP) was imposed against the applicant for being absent from his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and 14 days extra duty.

The applicant was barred from reenlistment on 10 August 1982 for his inability to perform to standards of a soldier with his rank and experience.

On 1  September 1982, the applicant’s commander initiated action to separate the applicant from the service under the provisions of AR 635-200, chapter 13, for unsuitability-inaptitude and inability.  After consulting with counsel, the applicant waived consideration, personal appearance, and representation before a board of officers and elected not to submit a statement in his own behalf.

The applicant underwent a separation medical examination on 3 September 1982 and was found qualified for separation.

On 7 September 1982, the commander submitted his recommendation to separate the applicant under the provisions of AR 635-200, chapter 13, for unsuitability.  The commander’s recommendation was based on the applicant’s “inaptitude and inability” to adapt to military life and responsibility.

On 21 September 1982, the separation authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.  The applicant was discharged on 24 September 1982.  He had a total of 3 years, 5 months, and 28 days of creditable service.  His DD Form 214 shows that he was issued an SPD code of “JMJ” and a RE code of RE “3” and RE “3C”.

The applicant provided a copy of DA Form 2139, dated 24 September 1982, which shows that he was informed at the time of discharge by the Finance and Accounting Office (FAO) that he owed $7352.57.

The applicant provided a copy of FH Form 1841, dated 24 September 1982, which shows that the applicant’s total debt due to the US at the time of his discharge was $7352.57 for an uncollected portion of his SRB.

The applicant applied to the ADRB for an upgrade of his discharge on 17 January 1985.  The ADRB examined the applicant’s entire record of service and noted that the applicant had completed one term of service between March 1979 and December 1981 honorably and was separated from the service with an honorable discharge for immediate reenlistment.  Following his reenlistment, he was assigned to Fort Hood, Texas, per his enlistment and served there for the remainder of his enlistment.  The ADRB also noted that he was punished on one occasion by NJP, was barred from reenlistment, processed for separation based on his inability to adapt to the Army and was separated with a General Discharge because of unsuitability/apathy.  After careful review, the ADRB determined that this separation was not supported.  This determination was based on the applicant’s entire record of service.  The ADRB weighed the positive evidence of the applicant’s overall service against the negative and voted 3 to 2 to change 
the characterization of the applicant’s service from general to fully honorable, but also voted unanimously not to change the narrative reason (Unsuitability-apathy, defective attitude or inability to expend effort constructively) for discharge.

The Department of the Army letter, dated 27 February 1986, informed the applicant that his discharge has been changed to Honorable and that a new separation document had been prepared and was enclosed for his signature.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph
13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

Army Regulation 635-5-1 prescribes the specific authority (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “JMJ” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Unsuitability-apathy, defective attitude or inability to expend effort constructively” and that the authority for discharge under this separation program designator is “AR 635-200, para 13-4c”.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudical punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapter 9, 10, 13, 14, and 16 of Army Regulation 635-200.

RE 3C applies to soldiers separated prior to the effective date of this regulation, but did not meet reentry criteria at the time of separation.

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.

Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 5, Section XXIV, prescribes polices and instruction on administration of the Enlistment Bonus (EB) program.  It states, in pertinent part, that the Enlistment Bonus is an enlistment incentive offered to those enlisting in the Regular Army for duty in a specific MOS.  It also states that the objective of the bonus is to increase the number of enlistments in MOS’s that are critical and have inadequate first term manning levels.  Periodically, the Commanding General, PERSCOM, analyzes manpower requirements and recruiting objectives to insure that the Enlistment Bonus Program supports planned goals.  Additions to and deletions from the list of bonus MOS’s will be made.  The dollar award for each bonus MOS may be changed on the basis of this analysis.

Army Regulation 601-280 sets forth the basic authority for the Army Enlistment Program for all military personnel of the Active Army.  This regulation prescribes the eligibility criteria and options currently available in the Army Reenlistment Program.  Chapter 8 pertains to the Enlistment and Reenlistment Bonuses for Enlisted Personnel.  Paragraph 8-1, states that the Enlistment Bonus (EB) program became effective 1 June 1972, that the Selective Reenlistment Bonus (SRB) program replaced the Regular Reenlistment Bonus (RRB) and that the Variable Reenlistment Bonus (VRB) program became effective 1 June 1974.  This chapter also states that policies and instructions for the administration of the Enlistment Bonus program are contained in Army Regulation 601-210.  The MOS designated for the Enlistment Bonus program will be announced by message from the Commander, Personnel Command (PERSCOM), ATTN; TAPC-EPT.

Paragraph 8-22, of Army Regulation 601-280 states in pertinent part, that a soldier who voluntarily, or because of misconduct, fails to complete obligated service for which an EB or SRB was paid will refund a percent of the EB or SRB equal to the percent of obligated service not performed.  The serving FAO will perform recoupment of the portion of the bonus before the soldier is discharged.  The United States Army Finance and Accounting Center will provide a current
listing of SPD codes that may be recouped to all local FAOs.

The Department of Defense Military Pay and Allowances Entitlements Manual outlines the legal requirements for the recoupment of unearned portion of enlistment bonuses.  It states, in pertinent part, recoupment of unearned portions of enlistment bonus and reenlistment bonuses (regular and selective) is required: (a) When a member voluntarily or because of misconduct do not complete the term of enlistment, reenlistment, extension of enlistment, or anniversary year for which the bonus was paid.  It also states that members discharged 3 months or less before expiration of their term of service (ETS) for the purpose of immediate reenlistment are considered to have completed the terms of their enlistment.  In computing the period of 3 months or less, the date of normal ETS is excluded.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations it is concluded:

1.  The applicant was separated and assigned a SPD and RE code in accordance with regulations then in effect.

2.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that the SPD or RE code issued to him was incorrect.

3.  The applicant’s separation under the provisions of Army Regulation 635-200, chapter 13-4c, was administratively correct and in conformance with applicable regulations.  Therefore, the applicant’s separation authority is correct as currently constituted.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The Board noted the decision by the ADRB to change the characterization of service to honorable.  The Board also noted that the ADRB voted unanimously not to change the reason for discharge in this case.  After review of the entire case, this Board finds no evidence that narrative reason for his discharge was improper or was inequitable.  Therefore, the applicant is not entitled to a change in the narrative reason for his discharge.

6.  The applicant’s DD Forms 4/1 clearly show that the applicant was entitled to a
SRB and elected a lump sum payment which was authenticated with his initials in item 10c.

7.  Evidence of record shows that the applicant was fully aware of his bonus recoupment as indicated by his FH Form 1841 and DA Form 2139.  
Evidence of record also shows that the unearned portion of the applicant’s enlistment bonus was properly recouped in accordance with applicable regulations in effect at that time.  Therefore, restitution of his 1988 income tax, which was recouped due to his enlistment bonus, is denied.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

JHL_____  JNS____  MHM____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Carl W. S. Chun
Director, Army Board for Correction
of Military Records

INDEX

CASE ID	AR1999030444	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000029	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19820924	
DISCHARGE AUTHORITY	AR 635-200, C, 13	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.  1021		
3.		
4.		
5.		
6.