IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080006322 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests remission of debt resulting from overpayment of an enlistment bonus and non-payment of servicemembers group life insurance (SGLI) premiums.

2.  The applicant states that circumstances surrounding her discharge prevented her from being able to complete her initial enlistment and ultimately led to an honorable discharge.  However, as a result of this discharge, she incurred a debt resulting from the recoupment of a portion of her enlistment bonus and the non- payment of SGLI premiums for the period 20 September 2006 through 15 July 2007.  She further adds that she requested remission through the Defense Finance and Accounting Service (DFAS) due to hardship and injustice; however, DFAS denied her request.

3.  The applicant provides a copy of her discharge orders, dated 16 July 2007; a copy of DD Form 2789 (Waiver/Remission of Indebtedness Application), dated 15 January 2008; and a copy of two letters sent to DFAS, dated 18 March 2008 and 16 June 2008, in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that she enlisted in the U.S. Army Reserve (USAR) on 23 January 2003 for a period of 8 years.  She agreed to serve 6 years in the USAR and 2 years as a member of the Individual Ready Reserve (IRR).  She authenticated the DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States) and all its annexes and addendums, by placing her signature in the appropriate place. 

2. Section III (Acknowledgement) of the applicant’s DA Form 5261-R (Selected Reserve Incentive Program-Enlistment Bonus Addendum) shows that in connection with her enlistment in the USAR, she elected “assignment to a unit (high priority) authorized by Headquarters, Department of the Army (HQDA) for a bonus entitlement in a military occupational specialty (MOS) that is also authorized by HQDA for a bonus entitlement.”  She elected MOS 95B/31B (Military Policeman) and the 812th Military Police Company.  

3.  Section V (Entitlement) of her DA Form 5261-R shows the entry “according to the entry I have initiated in Section III, I am entitled to $3,000.00 Bonus MOS in Bonus Unit.”  She further acknowledged that her bonus payment would be paid at the rate of an initial 50 percent payment after receiving her high school diploma, completing initial active duty for training, and qualifying in the MOS; and two subsequent payments of 20 percent on her second enlistment anniversary and 30 percent on her fourth enlistment anniversary.  

4.  Section VII (Termination) of her DA Form 5261-R shows the entry “My entitlement to the enlistment bonus will be terminated should any of the following conditions occur before the fulfillment of my enlistment agreement.  Should I be separated from my status as an enlisted Soldier assigned to a unit of the Selected Reserve, for any reason, except when separated for an authorized period of non-availability or entry on active duty or full time National Guard in an Active/Guard Reserve (AGR) status.  This could result in recoupment action, unless the separation is due to selected reasons.”  

5.  Section IX (Statement of Understanding) of her DA Form 5261-R shows that the applicant authenticated this form by placing her signature and the date, indicating that she read and fully understood each statement on this form and that her questions were satisfactorily answered.  

6.  The applicant was ordered to initial active duty for training (IADT) on 13 July 2003.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31B.  She was honorably released from IADT on 7 November 2003 and reverted back to her USAR status. She was assigned to Detachment 3, 306th Military Police Battalion, Uniondale, New York.  




7.  On 10 February 2004, the applicant was released from Detachment 3, 306th Military Police Battalion, Uniondale, New York, and was reassigned to the 812th Military Police Company, Orangeburg, New York. 

8. The applicant’s records show that she received her $3,000.00 enlistment bonus in three increments, as her contract stated, as follows: she received $1,500.00 on 8 November 2003; $600.00 on 23 January 2005; and $900.00 on 23 January 2007. 

9.  The facts and circumstances surrounding the applicant's termination of her enlistment bonus on 6 December 2006, are not available for review with this case.  However, on an unknown date, the applicant submitted two waivers to DFAS as follows:

	a.  Waiver of $1,257.33 indebtedness resulting from the recoupment of her USAR bonus for not completing her enlistment contract of 72 months in the USAR; and 

	b.  Waiver of $174.00 indebtedness resulting from the uncollected SGLI premiums from February 2007 to July 2007. 

10.  On 12 February 2007, by letter, DFAS notified the applicant that her waivers were returned without action.  DFAS further informed the applicant that:

	a.   Public Law 92-453 authorizes the waiver of erroneous payments of pay and allowances to military and civilian employees and that any payment that is legal and proper when paid, may not be considered for waiver.  The applicant was determined that at the time she received the USAR bonus, the payments were proper; therefore, the debt is not an erroneous payment subject to waiver consideration under this law; and 

	b.  SGLI coverage continues until a member elects in writing to stop coverage and that the uncollected premiums were for insurance coverage she had during the period she was not receiving pay and allowances from which the premiums could be deducted.  Since the uncollected premiums were not the result of an erroneous payment made to her, this debt was ineligible for waiver consideration.





11.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, on 16 July 2007, Headquarters, 77th Regional Readiness Command (RRC), Fort Totten, New York, published Orders 07-197-00045, honorably discharging the applicant from the USAR in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).

12.  On 13 November 2007, by letter, DFAS notified the applicant that she was indebted to the Department of Defense as a result of her discharge prior to fulfillment of her enlistment contract.  The initial debt of $1,257.33 resulted from two sources:

	a.  Collection of SGLI premiums for the period September 2006 through July 2007.  She was not attending drills, but premiums were made on her behalf at the rate she elected.  As of the date of the DFAS notification, the applicant owed $174.00 ($29.00 per month, from February 2007 to July 2007);  and

	b.  Recoupment of the unearned portion of her enlistment bonus.  Her $3,000.00 enlistment bonus was contingent on completing 6 years in the USAR.  She served 46 months from the date she enlisted (23 January 2003) to the date her bonus was terminated by her chain of command (6 December 2006).  Based on her service, she only earned $1,916.67 worth of enlistment bonus, but was paid the full $3,000.00.  Therefore, she incurred an overpayment debt of $1,083.33.

13.  On 16 January 2008, the applicant submitted a DD Form 2789, requesting the amount of $1,261.61 debt be remitted due to what she described as financial hardship, injustice, and separation from the Service.  She further added that she was a full-time student with no disposable income and that she endured hardship and injustice due to being a victim of sexual assault during annual training by a superior noncommissioned officer in her company.

14.  On 18 March 2008, by letter addressed to the Army Review Board Agency, St. Louis, Missouri, the applicant stated that she was denied her previous request for remission without any explanation, other than she did not qualify.  She further added that she is appealing this debt for two reasons.  The debt has caused her financial hardship since she is a recent college graduate with no source of disposable income.  Her appeal is also based on injustice because she was a victim of sexual assault by a senior noncommissioned officer in her supervisory chain that has traumatized her.  The emotional damage she suffered has prevented her from being able to complete her initial enlistment.


15.  On 16 June 2008, by letter, the applicant contended that as her debt grows larger with administrative fees and interest every month, she inquired if this Board has a procedure to freeze her indebtedness until a decision is made.  She also states that she strongly feels the Board would grant her request.

16.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of USAR Soldiers.  It states, in pertinent part, that under certain conditions, separation will terminate payment of an incentive and entitlement to a Soldier and may also result in a collection of overpayment or recoupment action from the Soldier.  In all cases of voluntary or involuntary separations, commanders will determine a Soldier’s entitlements, if any and initiate termination and recoupment actions where required and/or appropriate.

17.  Army Regulation 135-7 (Incentive Programs) establishes a single reference for incentives authorized within the Army National Guard and the Army Reserve. It states, in pertinent part, that a Soldier’s eligibility for bonus or loan repayments based on Selected Reserve service will terminate on release from the Selected Reserve and transfer or reassignment to the IRR.  Recoupment is not prescribed if the transfer or reassignment to the IRR is a direct result of unit inactivation, reduction in over-strength, reduction in force, or unit relocation.  

18.  Paragraph 2-8 of Army Regulation 135-7 prescribes the recoupment conditions.  It states, in pertinent part that recoupment of bonus payments will be started by the unit commander when entitlement to such incentive is terminated based on any of the following reasons:

	a.  Unsatisfactory participation.

	b.  Moves to a non-bonus unit or MOS or is reclassified in an MOS other than that for which contracted.  Recoupment is not authorized if the Soldier is moved to another unit or MOS for normal career progression, when retention of bonus entitlement is authorized, or when the move has been approved by the Chief, Army Reserve.

	c.  Accepts a permanent civilian position where membership in the Selected Reserve is a condition of employment before 6 months of the enlistment term of service has been served.

	d.  Separation from enlisted status in a Selected Reserve unit of the USAR for any reason unless due unit inactivation, reorganization, conversion, relocation, reduction of over-strength, or reduction in force; acceptance of immediate appointment as an officer in the Ready Reserve after 1 year or more of the enlistment term has been satisfactorily served; becoming an assigned member of Control Group (ROTC); death, injury, illness, or other impairment not the result of own misconduct; involuntary order to EAD in the Active Army (accessed to the strength accountability of the active military service of the Army); entry on an authorized period of non-availability; or entry on active duty or full time National Guard (FTNGD) in an Active/Reserve Guard (AGR) status.

19.  Paragraph 2-9 of Army Regulation 135-7 describes the settlement of accounts.  It states in pertinent part that enlistment bonus recoupment or balance due amounts will be calculated as follows:

	a.  Multiply the number of months served satisfactorily during the term for which the incentive was authorized by the proportionate monthly dollar amount. (The proportionate monthly dollar amount will be determined by dividing the total authorized enlistment bonus amount by 72 months); 

	b.  Subtract that amount from the total bonus paid to the Soldier to date (initial plus any later payments); 

	c.  If the calculation indicates overpayment to the Soldier, that amount will be recouped; and 

	d.  If the calculation indicates the Soldier has earned more than he or she has been paid to date on the same pro–rata basis, the difference will be paid in a final installment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 4 and its addendums established a contractual agreement between the applicant and the Army that she would receive an enlistment bonus in connection with her enlistment and service.  The applicant agreed to serve 6 years in the USAR and 2 years as a member of the IRR.  In exchange, the USAR paid the applicant a $3,000.00 enlistment bonus, trained her in MOS 31B, and assigned her to the 812th MP Battalion.

2.  The applicant's record is void of the facts and circumstances that led to her discharge.  However, there is no indication or evidence in the available records and the applicant did not provide any substantiating evidence that shows she was subjected to sexual assault during her military service, or that such assault led to her discharge from the Army.


3.  With respect to recoupment of a portion of the bonus, the applicant's debt did not arise out of an erroneous payment, since the payment was proper when made.  Furthermore, it is clear that the Army lived up to its promise by paying the applicant the entire enlistment bonus as agreed in the contractual agreement.  The applicant may have had every intention to fulfill her contractual agreement and serve out her term of service; but, she was unable to do so due to her discharge. 

4.  The termination of the contractual agreement also terminated any entitlements to the bonus.  However, in the interest of justice, the Army waived recoupment of monies already received by the applicant for the number of months she served under the agreement.  Therefore, the applicant should not benefit from any entitlement she did not earn.

5.  With respect to the debt incurred as a result of SGLI premiums, the evidence of record shows that during the period she did not receive pay and allowances due to her failure to perform drills as the terms of her agreement stipulated, premiums for SGLI were paid on her behalf.  She had the benefit of the coverage during the period in question.  That benefit comes at a cost of $29 per month for the type of coverage she chose.  Therefore, the applicant should not be allowed to receive a free benefit that other Soldiers pay for.

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


							XXX
      _______________________
      	CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20080006322



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ABCMR Record of Proceedings (cont)                                         AR20080006322



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