RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000397 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be paid his Regular Army reenlistment bonus.

2.  The applicant states, in effect, that the unearned portion of his reenlistment bonus was recouped after he was involuntarily discharged for parenthood and he incurred a debt of $8,643.75.  He contends that he has encountered financial problems since his discharge due to the large pay cut he took, that he had four years of service with one combat tour in Iraq, and that all he wants to do is serve on active duty.   

3.  The applicant provides a Defense Finance and Accounting Service (DFAS) account statement, dated 21 November 2007 and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).   

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 September 2003 for a period of 5 years.  He served as a cavalry scout in Iraq from 29 January 2005 to 
28 February 2006.  He was honorably discharged on 27 March 2006 for immediate reenlistment.  

2.  On 28 March 2006, he reenlisted in the Regular Army for a period of 6 years.  His reenlistment contract shows he reenlisted for a selective reenlistment bonus. His DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus), dated 28 March 2006, states, in pertinent part, “I have been advised and understand that if I do not complete the full period of service, or if I do not remain technically qualified in MOS [military occupational specialty] 19D, I will not get any more installments of the bonus, and I will have to pay back as much of the bonus as I already received for the unexpired part of the period of obligated service.”  

3.  The separation authority initiated action to involuntarily discharge the applicant due to parenthood and directed that, upon the applicant’s separation, action would be taken to recoup any unearned portions of enlistment/
reenlistment bonuses, if received.  

4.  On 19 September 2007, the applicant was honorably discharged in the rank of sergeant under the provisions of Army Regulation 635-200, paragraph 5-8, for parenthood.  He had served a total of 4 years and 15 days of creditable active service and 1 year, 5 months, and 22 days on his last enlistment.  Item 
26 (Separation Code) on the applicant’s DD Form 214 shows the entry, “JDG.” 
5.  The applicant provided a DFAS account statement, dated 21 November 2007, which shows he owes $8,643.75 for the recoupment of the unearned portion of his reenlistment bonus.

6.  On 5 February 2008, the applicant enlisted in the U.S. Army Reserve for a period of 6 years in pay grade E-5.  His enlistment contract shows he enlisted for a $15,000 bonus.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, in Washington, D.C.  The opinion states that bonuses are routinely recouped when the separation occurs through voluntary actions or through the fault of the Soldier in accordance with procedures in Army Regulation 601-280, paragraph 5-13 through 5-15.  Paragraph 5-13 is generally clear regarding recoupment for misconduct and voluntary failure to complete obligated service.  It is not clear on recoupment provisions for reasons in which the Soldier was involuntarily separated for conditions such as parenthood.  The regulation addresses pregnancy, but since this is a male applicant, the case is not addressed in the regulatory guidance.  Army Regulation 601-280 is currently under revision and out of date as far as guiding commanders in bonus determinations regarding recoupment.  The Department of Defense Financial Management Regulation (Volume 7A, Chapter 9, section 090503 M(10)) states that parenthood separations are among those listed conditions that are subject to recoupment; however, had the command elected to waive recoupment such action was authorized.       

8.  The advisory opinion states that on 18 September 2007, the Office of the Undersecretary of Defense issued further clarification to the services regarding bonus recoupment.  The opinion points out that the issue of termination and recouping of bonus funds paid is addressed in the Deputy Secretary of Defense Memorandum, subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits of Stipends, dated 8 April 2005; and the Principal Deputy Under Secretary of Defense (PDUSD) Memorandum, subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 18 September 2007.  The opinion states that the basis of the two documents state, “To the extent permitted by law, personnel who receive a bonus (i.e. enlistment, reenlistment, extension, affiliation, or prior-service) are affected by the new policy.  Soldiers who had their bonus, special pay, educational benefits, or stipend payments stopped before the effective date of this memorandum may also retain their incentive.”     


9.  The advisory also states that the PDUSD memorandum delegates to the Secretary concerned determination on a case-by-case basis that repayment will not be required, if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.  Although the memorandum addresses hardship discharges specifically as not being subject to recoupment, a parenthood separation may have hardship implications as well.  In those cases, the colonel level commander has the authority to act on the recoupment action.  The opinion states that if the applicant’s commander had been aware of the provisions in the 18 September 2007 memorandum there is a possibility that the subject of the recoupment may have been viewed differently, although the commander’s intent was clear based on policy as it existed at that time.  Based on the guidance in the PDUSD memorandum, the advisory opinion recommended that the Board grant relief to the applicant.

10.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 21 March 2008, the applicant concurred with the advisory opinion.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (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 states the reason for discharge based on separation code “JDG” is “Parenthood” and the regulatory authority is Army Regulation 635-200, paragraph 5-8.  The regulation states that discharge for parenthood is an involuntary discharge.  

12.  The Department of Defense Financial Management Regulation, Volume 7A, paragraph 090503M(10) states that for the purpose of recouping of any unearned portions of enlistment, reenlistment, or retention bonuses, the term “who voluntarily or because of misconduct” includes (but is not limited to) members separated as directed by the Secretary of the Military Service Department concerned (or designee) in individual cases and includes voluntary separation, or transfer to a Reserve Component if required by law; and for the convenience of the government upon the application and interest of the member because of special or unusual circumstances including, but not limited to, parenthood.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant reenlisted in the Regular Army on 
28 March 2006 for a selective reenlistment bonus.  He was involuntarily 


discharged on 19 September 2007 for parenthood.  The guidance up until 
18 September 2007, the day prior to his discharge, was that the unearned portion of his bonus would be recouped.     

2.  As of 18 September 2007, the guidance changed to allow colonel-level commanders to waive recoupment action in hardship cases.  The applicant has outlined the financial hardships he has been having since his discharge.  At this time it would be equitable to show that a bonus recoupment waiver was approved on 18 September 2007.

3.  However, the prospect of negating the applicant’s $8,643.75 debt for completing only 1 year, 5 months, and 22 days of his 6-year reenlistment, plus allowing him to receive a $15,000 enlistment bonus for enlisting in the USAR on 8 February 2008, is a windfall.  While the Board has no jurisdiction to stop the enlistment bonus in this case, the bonus is a legitimate factor to consider in denying full relief regarding the Regular Army bonus debt.  It would be equitable to show he was authorized to receive an additional 4 months and 18 days (the period of his break in service from 20 September 2007 through 7 February 2008) worth of the Regular Army reenlistment bonus, but not the full amount.   

4.  It is recognized that had the applicant’s bonus recoupment action been waived through the normal course of events in September 2007 the waiver authority would not have known of his future enlistment in the USAR.  Nevertheless, that enlistment cannot now be ignored. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

PM_____  ___JH___  __KJ____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his Regular Army reenlistment bonus recoupment action was waived to the extent of allowing him to retain an additional 4 months and 18 days of the bonus as “earned.”
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying him the entire $8,643.75 of his unearned Regular Army reenlistment bonus.




      ___         PM      _____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000397


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508