IN THE CASE OF:	

		BOARD DATE:	     1 JULY 2009

		DOCKET NUMBER:  AR20090000407


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 the Separation Program Designator (SPD) code on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to one that will not generate a recoupment action by the Defense Finance and Accounting Service (DFAS).  In effect, she is asking for a Secretary of the Army waiver of the recoupment action as being “contrary to a personnel policy or management decision.”

2.  The applicant states, in effect, she received a reenlistment bonus, but separated early in order to pursue a commission via a Reserve Officers' Training Corps (ROTC) scholarship.  She states Army Regulation 601-280 (Army Retention Program), in paragraph 5-13c, provides that recoupment of an unearned bonus is not required if the Soldier is separated to permit acceptance of a commission or warrant appointment or to enter a program leading to a commission or warrant appointment.

3.  The applicant provides a copy of her DD Form 214, her ROTC contract, and a memorandum from U.S. Army Human Resources Command (USAHRC), Alexandria, VA.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years on 15 November 2002.  On 14 August 2003, she was discharged from the DEP and enlisted in the Regular Army on 15 August 2003 for 4 years.
2.  On 28 September 2005, the applicant reenlisted for 6 years, the Regular Army (RA) Reenlistment Option, and a lump sum bonus payment.  The reenlistment bonus was authorized by MILPER [Military Personnel] Message 04-354, effective 30 December 2004.  It provided that qualified Soldiers were eligible for a lump sum bonus of up to $15,000.  All Soldiers, grades E-3 through E-6, who were qualified to reenlist, had the opportunity to take advantage of this bonus regardless of their reenlistment window, provided they have never received a Zone A or Zone B bonus.

3.  On 8 August 2008, the applicant was honorably discharged by reason of Secretarial Authority under the provisions of paragraph 5-3, Army Regulation 635-200.  She was given an SPD code of “KFF.”  The reason for her discharge was to enable her to enroll in a 4-year ROTC scholarship program leading to her appointment as a U.S. Army second lieutenant.  She signed her DA Form 587-3 (ROTC Scholarship Cadet Contract) on 19 August 2008.

4.  DFAS initiated a reenlistment bonus recoupment action against the applicant.  The recoupment debt as of January 2009 was approximately $5,400.00

5.  In the processing of this case, on 23 January 2009, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  The opinion referenced an Office of the Secretary of Defense (OSD) Memorandum, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 21 May 2008.  That memorandum stated that a member with an enlistment (or reenlistment) bonus who is discharged for immediate reenlistment or appointment (as officers) in a Military Department for which no bonus or special pay is paid, may be considered to have completed the full term of service for which the bonus was paid.  Since the applicant will receive a stipend and a full ROTC scholarship, she will, in fact, be receiving a “bonus or special pay” under the terms of the memorandum and, thus, would not qualify for retention of her reenlistment bonus.  The advisory opinion did, however, point out that each Service Secretary has the authority to render a case-by-case determination to waive recoupment action when such recoupment would be “contrary to a personnel policy or management decisions.”  The advisory opinion pointed out that, given the severe shortage of officers, it is most probable the applicant would have received such a waiver had she applied.  The advisory official recommended the applicant be granted relief.

6.  On 23 January 2009, the applicant was provided a copy of the G-1 advisory opinion for information and to afford her the opportunity to submit comments or rebuttal.  She did not reply.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not serve out the full term of her 6-year reenlistment, thus she did not qualify to keep the full reenlistment bonus and DFAS appropriately began recoupment action.

2.  OSD policy permits the Secretary of the Army to waive recoupment when such recoupment would be “contrary to a personnel policy or management decisions.”  The applicant is currently enrolled in the ROTC 4-year scholarship program.  In 2012, when she completes her education, she will be appointed a second lieutenant in the U.S. Army.

3.  Even though the applicant is receiving an educational stipend (in effect, a form of special pay), she is helping to fill a critical shortage in the officer corps.  The G-1 has opined that recoupment of her reenlistment bonus would be “contrary to a personnel policy or management decisions” and would warrant a Secretarial waiver.

4.  Therefore, it would be equitable and proper to grant the applicant a Secretarial waiver of the recoupment of the unearned portion of her reenlistment bonus, conditional upon her completing the terms of her ROTC contract. 

BOARD VOTE:

_____X___  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing that the applicant timely applied for a Secretarial waiver and that such waiver was conditionally granted;
	
   b.  suspending the recoupment of the unearned portion of her reenlistment bonus and refunding to her any portion of the recoupment already collected; and
	c.  waiving recoupment upon her successful fulfillment of the terms and conditions of her ROTC contract.

2.  Should the applicant not fulfill the terms of her ROTC contract, recoupment of her unearned reenlistment bonus will be reinstated, along with any other penalties for breach of her ROTC contract.



      _________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)                                         AR20090000407



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ABCMR Record of Proceedings (cont)                                         AR20090000407



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