IN THE CASE OF: BOARD DATE: 18 July 2023 DOCKET NUMBER: AR20230000132 APPLICANT REQUESTS: • reimbursement of his enlistment bonus in the amount of $3,403.39 • a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Letter from Defense Finance Accounting Service (DFAS), 5 December 2011 • Memorandum Request for Relief • Letter from DFAS, 23 August 2022 • Exhibit List • Special Power of Attorney • Army Discharge Review Board (ADRB) Letter • ADRB Case Directive and Report • Current DD Form 214 (Certificate of Release or Discharge from Active Duty) • Voided DD Form 214 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect: a. His initial discharge was under honorable conditions (general) with a Separation Code of JKA. He petitioned the ADRB and was advised by the board that his petition was granted. His discharge was upgraded to honorable with a Separation Code of JKN. When he enlisted, he was awarded an enlistment bonus of $6,000.00. On 5 December 2011, he was notified by DFAS that because his separation code was JKA, he owed repayment of the bonus. He repaid a total of $3,403.39. b. Due to the fact the ADRB agreed with his attorney and upgraded his discharge to honorable and changed his separation code, he is respectfully requesting a reimbursement of the amount he was ordered to repay for his bonus. It took a long time for his attorney to gather information to draft and complete an accurate petition and the ADRB and DFAS took time to respond to his requests. He further indicates, on his application, that he suffers from post-traumatic stress disorder and other mental health issues. 3. The applicant's service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) dated 22 April 2009, shows the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years. On 25 August 2009, he was discharged from the USAR DEP and entered active duty for a period of 3 years and 23 weeks. b. DA Form 3286 (Statement for Enlistment United States Army Enlistment Program), dated 25 August 2009, shows the applicant enlisted to receive a bonus in the amount of $6,000.00. He understood that if he failed to complete his initial term of service in the incentivized military occupational specialty, due to his own misconduct, his bonus would be forfeited, and any unearned amount would be refunded. The applicant and guidance counselor signed the document. c. A separation packet, which includes a memorandum of initiation of separation, which indicates the initiation of separation was because the applicant drove under the influence of alcohol on 4 June 2010, was drunk and disorderly on 1 July 2010, made a false statement to a superior commissioned officer on 20 August 2010, and was found in possession of SPICE products on 10 August 2010 and 20 August 2010. On 19 November 2010, the appropriate approval authority directed the applicant's immediate separation from the Army and issued him an under honorable conditions (general) discharge. The entire separation packet is available for the Board's consideration. d. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 24 November 2010, the applicant was discharged from active duty and received an under honorable conditions (general) discharge. He completed 1 year and 3 months of active duty service. This DD Form 214 was replaced to show the applicant received an honorable discharge based on an ADRB decision, which is available for the Board's consideration. 4. The applicant provides the following documents, not previously considered, for the Board's consideration: a. A letter from DFAS, dated 5 December 2011 regarding a re-audit of the applicant's account and his debt to the U.S. in the principal amount of $2,521.51. The debt was increased to $3,383.11 due to an adjustment to the applicant's bonus recoupment. b. A memorandum for the Army Review Boards Agency, dated 4 October 2019 from the applicant's attorney on behalf of the applicant, which was part of the submission of documents to the ADRB requesting the applicant's discharge be upgraded to an honorable discharge. The entire memorandum is available for the Board's consideration. c. A letter from DFAS, dated 23 August 2022, which is a notice of payment summary and shows the total debt amount paid was $3,430.39. It also shows the payments made by the applicant on the debt. The debt was due to recoupment required for the unearned portion of his enlistment or reenlistment bonus. His original debt was for $3,383.11. In addition, $47.28 of interest and administrative fees were also applied to the debt. The account was paid in full. d. An exhibit list: however, he did not provide all of the exhibits listed for the Board's consideration. e. A Special Power of Attorney, wherein the applicant gave power of attorney to his attorney to assist with his petition to the ADRB. f. The ADRB letter of correction and case report and directive. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence shows the applicant enlisted to receive a bonus in the amount of $6,000.00. He understood that if he failed to complete his initial term of service in the incentivized MOS due to his own misconduct, his bonus would be forfeited, and any unearned amount would be refunded. The applicant did commit misconduct and was separated due to misconduct. and guidance counselor signed the document. The ADRB upgraded his discharge to a general discharge because that board determined his discharge was inequitable. The fact that his character of service was upgraded did not change the underlying reason for his separation. Based on the preponderance of the evidence, the Board determined relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 7/18/2023 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. REFERENCES: 1. Title 10, USC, 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 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. 2. Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. 3. Army Regulation (AR) 601-210 (Regular Army and Reserve Components Enlistment Program) Section 9-9, Enlistment Program 9C, (Enlistment Bonus, Army College Fund, Loan Repayment Program) This program is available to qualified Non-Prior Service, Prior Service, and Army Civilian Acquired Skills Program applicants enlisting for the minimum term of enlistment, when authorized by Headquarters Department of the Army enlistment incentives message. Previously disenrolled Senior Reserve Officers' Training Corps cadets who were scholarship recipients are not entitled to incentives under this paragraph. Incentives will be offered using REQUEST and message will be updated quarterly or as required. All enlistees must meet the prerequisites before and after enlistment per DA Pam 611–21. Primary Incentive Enlistment Options available for enlistment are available in REQUEST as offered and determined by the Deputy Chief of Staff, G–1. Under this program, enlistees may be eligible for an enlistment bonus. Enlistees who voluntarily or because of any misconduct, fail to satisfactorily complete AIT or one station unit training, will be trained in another Military Occupational Specialty (MOS). They will complete their term of enlistment based upon the needs of the Army, unless separated for administrative or disciplinary reasons. In the above instances, the bonus will not be paid. The bonus is payable at the first duty station after being awarded their MOS. 4. Title 37, USC, Section 331 (General Bonus Authority for enlisted members) The Secretary concerned may pay a bonus under this section to a person, including a member of the armed forces, who— a. Enlists in an armed force; b. Enlists in or affiliates with a Reserve Component of an armed force; c. A bonus authorized by subsection (a) may be paid to a person or member only if the person or member agrees under subsection (d)— (1) to serve for a specified period in a designated career field, skill, unit, or grade; or (2) to meet some other condition or conditions of service imposed by the Secretary concerned. d. A bonus paid under paragraph (1) or (2) of subsection (a) may not exceed $50,000.00 for a minimum two-year period of obligated service. A bonus under this section may be paid in a lump sum or in periodic installments, as determined by the Secretary concerned. e. To receive a bonus under this section, a person or member determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned that specifies— • the amount of the bonus • the method of payment of the bonus under subsection (c)(2) • the period of obligated service; and • the type or conditions of the service 5. Title 10-, USC, section 1552 (c)(1) states the Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//