APPLICANT REQUESTS:  That recoupment of the educational expenses incurred through his advanced civil schooling be set aside/waived.

APPLICANT STATES:  That at the time he requested separation under the Special Separation Benefit (SSB) option of the Voluntary Separation Incentive Program (VSIP), he was informed that he could request a waiver of recoupment of approximately $9,000.00 he still owed (in lieu of completing his active duty service obligation (ADSO)) for having participated in an advanced civil schooling program.  He further states that he submitted his request on 28 August 1992 and having never received a reply, assumed that his request was approved when the debt was not collected from his pay at the time of separation.  However, on 13 August 1993, he received a notice from the Defense Finance and Accounting Service advising him that he was required to reimburse the government in the amount of $9,090.05.  Furthermore, he was advised that the law did not allow for a waiver of reimbursement for advance civil schooling costs.  He goes on to state that the advice he received informing him that he could request such a waiver played an important part in his decision to request separation under the VSIP.  Although not guaranteed, he believed that he had a very good chance of obtaining such a waiver.  He continues by stating that he was never afforded the opportunity to reconsider his request for voluntary separation and that given the changes that occurred in the VSIP program after his separation, to require him to repay the costs of his advanced education is unjust and unfair; especially since he immediately accepted a government job as a GS-11 in which he uses the skills of his advanced degree and is essentially fulfilling his obligation. 

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

He was commissioned as a Regular Army second lieutenant on 7 June 1978, upon graduation from the Military Academy at West Point.  He was promoted to the rank of major on 1 March 1990.

He attended the Naval Postgraduate School at Monterey, California, from 1 July 1987 through 21 December 1989 for the purpose of obtaining a masters degree in electrical engineering.  As a result of his attending advanced civil schooling, he incurred an ADSO of 2,190 days of active duty in return for the costs incurred by the Army ($15,540.37).  Upon obtaining his masters degree he was transferred to Fort Monmouth, New Jersey for assignment as a systems management officer in the communication electronics command.  

Although the applicant’s original request is not contained in the available records, the Department approved his request for separation under the SSB option of the VSIP on 20 March 1992, and notified the applicant that he would be required to reimburse the government for the unserved portion of his advance civil schooling costs. 

On 28 April 1992, the applicant submitted his request for a waiver of recoupment for advanced civil schooling to the Total Army Personnel Command (PERSCOM).  He indicated in his request that he had calculated the amount to be approximately $9,000.00.  He cited as the basis for his request at that time that he had previously been alerted for possible overseas movement prior to completion of his utilization tour and was informed by his branch that as long as he served 2 years of his 3-year tour, the requirement could be waived. Although his reassignment never materialized, and considering that he had not pursued advanced civil schooling, but attended because he had been selected by the Department based on his past performance and demonstrated potential, he contended that he should be allowed to fulfill his obligation in the USAR.  There is no indication in the available records to show that the applicant’s request was ever finalized.

The applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 19 June 1992, under the provisions of Army Regulation 635-120 and the VSIP.  He had served 14 years and 13 months of total active service and was paid a lump sum SSB payment of $87,839.64 at the time of separation.

On 13 August 1993 (14 months later), the DFAS notified the applicant in writing that he was indebted to the government in the amount of $9,090.05 for the unearned portion of his advanced civil schooling costs.

The PERSCOM, on 5 November 1993, in response to the applicant’s letter dated 31 October 1993, regarding his debt, informed the applicant that by law (title 10 U.S. Code, section 2005) reimbursement requirements for advanced civil schooling programs could not be waived.  The PERSCOM advised him to apply to this Board if he still desired to seek relief in the matter.    

In order to comply with Congressional intent to drawdown the Army through voluntary separation, the Department announced the provisions of the Fiscal Year (FY) 1992 Enlisted Voluntary Early Transition (VET) Program through electronic message on 1 October 1991.
In the interim, the Secretary of Defense was in the process of drafting guidance for the administration and payment of separation incentive pay for both officer and enlisted personnel in overstrength inventories to encourage them to leave active duty voluntarily.  On 20 December 1991 the Department announced the provisions of the National Defense Authorization Act for FY92, which established the VSIP and two separation incentive options.  Both separation incentive options, the VSI and the SSB, were offered jointly.  Service members who were approved for the VSIP had the option of receiving either the VSI or the SSB.
Those who chose the SSB received a lump sum payment equal to 15 percent of his/her annual basic pay multiplied by 12 and multiplied again by his/her number of years of active military service.  In return, they had to agree to serve in the Ready Reserve for a period of not less than 3 years after completion of any remaining statutory obligation.
Those choosing the VSI were to receive an annual payment equal to 2.5 percent of his/her annual basic pay, multiplied by 12 and multiplied again by the number of years of active Federal service.  The member had to agree to serve in the Ready Reserve for the entire period that he/she received annual payments.
Army Regulation 37-104-3 prescribes policies and provisions for entitlements and collections of pay and allowances of military personnel.  Chapter 11 provides for recoupment of educational expenses, e.g., Senior ROTC, United States Military Academy, and advanced civilian schooling under previous agreement when obligated active duty service has not been completed.

Title 10, U.S. Code, section 2005, serves as the authority for reimbursement requirements for advanced education assistance.  It states, in pertinent part, that persons who voluntarily fail to complete the terms of their advanced education assistance agreement will reimburse the United States for the unserved portion not fulfilled.

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.  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.

2.  The applicant was aware that one of the conditions of his voluntarily separation under the VSIP was the requirement to repay the unearned portion of the cost of his advanced civil schooling.  He was also aware of the approximate cost involved.  There is no indication that he chose to withdraw his request based on his having to do so.

3.  The applicant’s contention that his decision to request voluntary separation was influenced by his being able to submit a waiver of his unserved advanced education expenses is without merit.  There is no evidence to suggest that his waiver would have been approved or that he would have elected to withdraw his request if his waiver had been disapproved.

4.  The Board is convinced that the applicant was aware that there was no implied guarantee of a approved waiver and that if it was not approved he would have to repay the debt.  While it is unfortunate that the applicant was not notified of the exact amount of the debt until 14 months after he separated, that is no basis to forgive the debt.

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

                       DENY APPLICATION




		David R. Kinneer
		Executive Secretary