MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          31 October 2002                  
	DOCKET NUMBER:  AR2002075327

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman		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:  That the debt she incurred as a result of her enlistment bonus being recouped be remitted.

APPLICANT STATES:  She was not aware that her enlistment bonus would be recouped if she were separated from her Army Reserve (USAR) unit due to the birth of her child.  She and her husband decided that she would stay at home with their child after the child was born.  As a result, she requested separation from her USAR unit and quit her civilian job.  Since the birth of her child, both her child and her have required expensive medical care.  Those medical expenses, along with their other expenses, have created a financial burden on a one-income family.  The applicant admits that the debt is legitimate, and concedes that she would have had to transfer from her unit even if she had known her bonus would be collected because of her child’s birth defect.  However, she would have delayed her transfer to minimize the amount that would have been required to be recouped.

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

She enlisted in the USAR with no prior service on 11 January 1999.  In conjunction with her enlistment, she signed an enlistment addendum for a $3,000.00 cash bonus.  In that bonus addendum, the applicant was informed that her bonus would be terminated if she were “separated from my status as an enlisted soldier assigned to a unit of the Selected Reserve” and “If my entitlement to the enlisted bonus is terminated . . . I may be subject to recoupment action.”

On 5 November 2000, the applicant’s commander sent her a pregnancy option statement.  The applicant elected to be separated from her unit in December 2000 due to pregnancy.

On 4 April 2001, orders were issued transferring the applicant from her USAR unit to the USAR Control Group (Annual Training) due to Parenthood, effective 4 May 2001.

On 20 April 2002, the applicant submitted a request to remit her debt to the Defense Finance and Accounting Service (DFAS).  The DFAS responded stating that Public Law 92-453 allows for the waiver of erroneous payments, but does not allow waivers of legal and proper payments.

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

1.  The applicant exhausted her administrative remedies when she was informed by DFAS that waivers are not considered for debts resulting from legal and proper payments.  Her bonus payments were legal and proper.
2.  The applicant was informed in her bonus addendum that if she were separated from her unit that her bonus would terminate and a portion of her bonus may be recouped. 

3.  The applicant acknowledges that her debt is legitimate, and states that she would have had to leave her unit even if she had known her bonus would be recouped, albeit, at a later date so she would have had a smaller portion of her bonus to repay.  In that regard, while the applicant requested that she be transferred in December 2000, she wasn’t transferred until May 2001.  Therefore, her transfer to the USAR Control Group was delayed five months from the date she requested to be transferred and the amount of money recouped was reduced as a result of that delay.

4.  While a debt may be cancelled based on a correction made by the Board, the Board cannot simply remit or waive a debt.  Since the applicant's contract was properly implemented, there is no error or injustice for the Board to correct.

5.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___dph__  ___clg___  ___rks __  DENY APPLICATION

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

INDEX

CASE ID	AR2002075330	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021031	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.