IN THE CASE OF:	  

		BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090004068 


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 cancellation of her indebtedness to the Department of Defense resulting from the recoupment of her selective reenlistment bonus (SRB).

2.  The applicant states that in September 2007 she gave birth to a baby boy.  Unfortunately, he was born 3 months premature and had health issues.   Her son was initially discharged from the hospital on 2 November 2007 with a 24-hour heart and lung monitor.  The monitor went off routinely ten to fifteen times a day, beeping each time he failed to breathe.  She had to physically stimulate him to breathe.  On 10 November 2007, he stopped breathing for a significant length of time and could not be revived.  She rushed him to the hospital where he was admitted to intensive care and treated for ongoing lung and heart problems.  He was discharged a second time on 15 November 2007 and placed on several medications and continued use of the heart and lung monitor.  His weight upon discharge was a mere five pounds ten ounces and he could not have been placed into daycare due to his weight and monitor.  The applicant states she had to take complete responsibility for his care and well-being.

3.  A year and a half prior to giving birth, she had reenlisted in the Army and had received an SRB.  Due to her son's medical condition, she felt it necessary to leave the Army.  She was concerned about having to repay the SRB and discussed this with her commander.  Her commander and the finance office both told her that she would not have to repay the SRB due to the reasons for her discharge.

4.  The applicant understands that she was under contract at the time of her son's birth and intended to remain in the Army.  However, the birth was unexpected and her son's health had to come first.  As the sole provider for her son, she was unable to fulfill her everyday military duties due to his medical condition.  Therefore, she believes that her separation should have been based on hardship rather than pregnancy.  Several personnel have advised that her debt cannot be removed, but only deferred.  A deferment carries interest and only serves to deepen her debt.  She is currently receiving assistance through Veterans' Services due to her financial difficulties.  She is desperately trying to improve her financial status.  The applicant feels that the recoupment of this debt is unjust.  She loved serving her country and would have continued doing so for many years if not for her son's health problems.  She asks that her case be reviewed on its individual circumstance and merit.

5.  The applicant provides, in support of her application, copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), Sinai Hospital records pertaining to her baby, and a letter from the Defense Finance and Accounting Service (DFAS), dated 13 January 2009.

CONSIDERATION OF EVIDENCE:

1.  On 25 August 2004, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty (MOS) 35F (Intelligence Analyst).

2.  On 26 April 2005, the applicant was assigned for duty with Headquarters and Headquarters Company, 2nd Brigade, 1st Armored Division, in the Federal Republic of Germany.

3.  During the period from 24 November 2005 to 12 November 2006 the applicant served in Iraq.  She reenlisted in the Army on 2 June 2006 for a period of 
5 years.  She received an SRB and acknowledged that if she did not fulfill the full period of service, or did not remain technically qualified in her MOS, she would not receive any further installments of the SRB and would have to repay any bonus already received.  She indicated that she also understood that she would be considered not technically qualified in her MOS if she refused to perform certain duties which she had volunteered for in writing prior to accepting the SRB; received disciplinary action under the Uniform Code of Military Justice or civil court conviction that disqualified her for future performance in her MOS; misconduct resulting in injury, illness, or some other condition which interfered with effective performance in her MOS; or lost any mandatory qualification required for effective performance in her MOS.
4.  On 4 October 2007, the applicant's medical doctor stated that she had given birth on 11 September 2007 and that the baby was premature and may be released around the original due date of 29 November 2007.

5.  On 17 October 2007, the applicant requested voluntary separation from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for pregnancy.  She acknowledged in her request that she may be transferred to the Individual Ready Reserve (IRR).  There is no discussion in her request concerning repayment of the SRB.  She indicated that she desired to remain on active duty until 27 November 2007.

6.  On 5 November 2007, the appropriate authority approved the separation and directed that she be transferred to the IRR.

7.  Accordingly, the applicant was released from active duty on 29 November 2007.  She had attained the rank of specialist, pay grade E-4, and had completed 3 years, 3 months, and 5 days of creditable active duty service.  Her DD Form 214 shows she was voluntarily separated for pregnancy under the provisions of Army Regulation 635-200, chapter 8, with a separation program designator (SPD) code of KDF for pregnancy or childbirth.

8.  Army Regulation 635-200, chapter 8, provides policy, procedures and authority for voluntary separation of enlisted women because of pregnancy.  The unit commander will direct an enlisted woman who believes that she is pregnant, or whose physical condition indicates that she might be pregnant, to report for diagnosis by a physician at the servicing Armed Forces medical treatment facility.  When service medical authorities determine that an enlisted woman is pregnant, she will be counseled.  It is not the intent of the pregnancy separation policy that enlisted women be separated under this chapter when the pregnancy terminates before separation is accomplished.  A medical officer must verify the fact of pregnancy termination.  In circumstances of an abnormal pregnancy, when a Soldier carries a pregnancy for 16 weeks or more but then has an abortion, miscarriage, or an immature or premature delivery before separation is accomplished, the Soldier will have the option to be retained or to be separated per this chapter.  The duration of time she carried the pregnancy is defined as starting approximately at conception and ending when the products of conception are delivered or considered disappeared.  A medical officer must verify the duration of the pregnancy.  The Soldier will be counseled concerning her options. If she chooses to separate, the separation authority may set the separation date.  The Soldier’s decision will be recorded as a signed statement and included in the records.

9.  On 13 January 2009, DFAS, in response to a congressional inquiry, stated that the applicant was indebted to the Department of Defense as a result of a recoupment of her SRB.  As of the date of this letter, her debt totaled $7,898.32.  Bonus recoupment is based on SPD codes.  The applicant's SPD code of KDF required a recoupment of the SRB.

10.  Department of Defense Financial Management Regulation, Volume 7A, chapter 9, paragraph 090503, provides, in part, that the recoupment of an unearned portion of a bonus is required when a member does not complete the terms of enlistment.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of KDB is the appropriate code for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 6-3, for dependency or hardship.

12.  Army Regulation 635-200, paragraph 6-3a, provides for the separation of Soldiers because of dependency.  Dependency exists when death or disability of a member of the Soldier's immediate family causes that member to rely upon the Soldier for principal care or support.  Separation from the service of Soldiers because of dependency or hardship will be granted when all of the following circumstances exist:

	a.  conditions have arisen or have been aggravated to an excessive degree since entry on active duty or active duty for training;

	b.  conditions are not of a temporary nature;

	c.  every reasonable effort has been made by the Soldier to alleviate the dependency or hardship condition without success; and

	d.  separation from active military service is the only readily available means of eliminating or materially alleviating the dependency or hardship condition.

13.  The SPD code/separation pay computation chart provided by DFAS for application in similar cases indicates that the SPD code KDB for separation by reason of dependency or hardship does not require recoupment of an enlistment bonus.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the recoupment of her SRB is unjust based on the circumstances of her discharge.

2.  The available evidence shows that the applicant was pregnant and gave birth to a son on 11 September 2007.  He was born 3 months premature and was suffering from serious medical conditions that required all of the applicant's time to care for him.  These conditions were not of a temporary nature.

3.  There is no evidence showing that the applicant had any intention of leaving the Army based on her pregnancy.  It was only after her baby was born with such severe medical problems did she come to the realization that she could not perform both her military and motherly duties due to the medical condition of her baby.

4.  The applicant's request for separation based on pregnancy was not initiated until 17 October 2007, 5 full weeks after her son's birth.  By this time, she no longer qualified for a separation under this regulatory provision.  It is not the intent of the pregnancy separation policy that enlisted women be separated under this chapter when the pregnancy terminates before separation is accomplished.  The exception for when a birth is premature only applies to those situations where a pregnancy separation has previously been approved.

5.  The medical conditions of the applicant's newborn son met the requirements for a dependency discharge under the provisions of Army Regulation 635-200, chapter 6.

6.  In view of the above, and as a matter of equity, the applicant's reason and authority for separation should be changed to dependency under the provisions of Army Regulation 635-200, chapter 6.  Her DD Form 214 should show her SPD code as KDB.

7.  Based on this correction, the recoupment action concerning her SRB should be cancelled.



BOARD VOTE:

____X___  ___X____  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 on her DD Form 214 her narrative reason for her separation as dependency;

	b.  showing the authority for her separation as Army Regulation 635-200, paragraph 6-3;

	c.  showing her SPD code as KDB; and

	d.  cancelling the recoupment action pertaining to her SRB.



      ___________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)                                         AR20090004068



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ABCMR Record of Proceedings (cont)                                         AR20090004068



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