BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100010241 


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, in effect, amendment of her separation code from "JDG" to a different code, forgiveness of her debt that resulted from the recoupment of her selective reenlistment bonus (SRB) upon her early separation, and reimbursement of money collected from her as a result of this debt.

2.  The applicant states, in effect, she enlisted in the Army on 7 December 2004 for 4 years and was paid a $10,000.00 SRB on 31 January 2005.  She was discharged on 27 July 2006 prior to the expiration of her term of service by reason of parenthood.  She incurred a debt as a result of recoupment of the unearned portion of her SRB.  This has caused her severe financial hardship as she has five children and her husband was diagnosed with post traumatic stress disorder.  She has addressed this issue with the Defense Finance and Accounting Service (DFAS) with no success.  She has also submitted requests through the Under Secretary of Defense, U.S. Army Installation Management Command (IMCOM), Defense Legal Services Agency, as well as through her Members of Congress.  All attempts failed and she was denied relief.  As this Board decides cases on behalf of the Secretary of the Army with justice, equity, and compassion, she hopes the Board would rule in her favor.

3.  The applicant provides the following documents:

* a letter from the Mayor of Duluth, MN
* a previous Army Board for Correction of Military Records Record of Proceedings of a similar case
* 
Redacted Department of Defense (DOD) Claims Appeals Board Reconsideration Decision, dated 31 December 2008
* Office of the Under Secretary of Defense memorandum, Subject: Repayment of Unearned Portions of Bonus, Special Pay, and Educational Benefits or Stipends, dated 21 May 2008
* Deputy Secretary of Defense memorandum, Subject: Repayment of Unearned Portions of Bonus, Special Pay, and Educational Benefits or Stipends, dated 8 April 2005
* a DA Form 3508-R (Application for Remission or Cancellation of Indebtedness), dated 27 July 2006
* a DA Form 2823 (Sworn Statement) from the applicant, dated 27 July 2006; from E--- T----, dated 26 July 2006; and from K----- A--- E----, dated 27 July 2006
* Bonus Recoupment Worksheet
* DFAS Form 702 (DFAS Military Leave and Earnings Statement) for the period 1-31 July 2006
* a letter from IMCOM to her Member of Congress, dated 16 February 2007
* DFAS Administrative Report, Appeal Decision, letters, and other correspondence, dated in 2008
* separation Orders 195-0007, Installation Management Agency, Headquarters, U.S. Army Garrison, Fort Carson, CO, dated 14 July 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 July 2006
* a photograph of herself and her spouse
* internet article about veterans battling economic recession
* extract of Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she enlisted in the Regular Army (RA) for a period of 4 years on 5 February 2002 and held military occupational specialty (MOS) 92M (Mortuary Affairs Specialist).  She served in Kuwait/Iraq from 8 April 2003 to 22 March 2004 and she was promoted through the ranks to sergeant (SGT)/E-5 on 1 June 2005.

3.  On 7 December 2004, she executed a 4-year reenlistment in the RA.  Her reenlistment contract shows she reenlisted for an SRB.  Her DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus) explained the conditions under which continued entitlement to unpaid installments of the bonus may be terminated and unearned portions of advanced bonus payments recouped.  It states:

I, [Applicant, Social Security Number] understand that I am getting a selective reenlistment bonus for my reenlistment in MOS 92M1O for a period of 4 years.  I agree to complete this period of service.  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 92M1O00YY, 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.

4.  On 6 June 2006, she was counseled by her commander concerning the need to have a family care plan (FCP) put into effect in accordance with Army Regulation 600-20 (Command Policy) no later than 30 days after the date of counseling.  She was further informed she was responsible for maintaining a viable FCP and she must be able to deploy.  Failure to maintain a workable, viable, and executable FCP could result in various actions including Uniform Code of Military Justice (UCMJ) action for failure to repair, missing movement, or dereliction of duty; administrative action, such as a letter of reprimand; and involuntary discharge.  She agreed with the purpose of counseling, the key points of discussion, and the plan of action.  She did not submit any remarks.

5.  On 6 July 2006, she was counseled by her unit first sergeant (1SG) after she indicated she was unable to establish a viable FCP at that time.  The unit 1SG explained to her that since her 30-day period expired on 5 July 2006 and in spite of previous counseling, discharge was being initiated under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-8, for elimination for lack of an FCP.  She was also informed that she could possibly be required to repay the Government any portion of an unearned reenlistment bonus.  She again agreed with the key points of the counseling session and understood the plan of action.  She did not submit any remarks.
6.  On 6 July 2006, by memorandum, her immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200, chapter 5-8, by reason of parenthood (failure to maintain an FCP).  He recommended an honorable discharge.

7.  On 6 July 2006, she acknowledged receipt of the notification memorandum and subsequently consulted with consulting counsel who advised her of the basis of the contemplated action to separate her because of her failure to maintain an FCP, of the rights available to her, and of the effects of any action taken by her in waiving her rights.  She further elected not to submit a statement in her own behalf.

8.  On 11 July 2006, her immediate commander initiated separation action against her under the provisions of chapter 5-8 of Army Regulation 635-200 by reason of failure to maintain an FCP.

9.  On 14 July 2006, by memorandum to DFAS-Denver, she acknowledged that she had been counseled regarding debt avoidance.

10.  Subsequent to this recommendation, the separation authority approved the applicant's involuntary separation due to parenthood with the issuance of an honorable discharge.

11.  She was honorably discharged on 27 July 2006.  Her DD Form 214 shows she was honorably discharged in the rank of SGT under the provisions of Army Regulation 635-200, paragraph 5-8, for parenthood.  She completed 4 years,
5 months, and 23 days of creditable active service.  Item 26 (Separation Code) shows the entry "JDG."

12.  Her DFAS account statement, prepared in connection with her outprocessing, shows she had a total SRB recoupment amount of $8,253.53, which when adjusted by her July 2006 entitlements of pay and leave, left her with a $4,493.47 debt.

13.  Subsequent to her discharge and in the following months, she submitted several requests, directly or through her Members of Congress, to various agencies, including DFAS (which at one time temporarily suspended payments until a payment plan could be arranged), DoD, and IMCOM, in an attempt to cancel this debt by reason of financial hardship; however, she was denied various times.  She also submitted reconsideration and appeal requests to some of the same agencies, but was again denied. 

14.  She submits copies of various sworn statements, correspondence with outside agencies, extracts of regulations, a letter from her city mayor, and internet articles that essentially describe her financial situation and the financial hardship this action has caused her.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on an SPD code of "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.

16.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for retention.  Chapter 5 of this regulation addresses the issue of recoupment.  Paragraph 5-13 states that a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an EB (Enlistment Bonus) or SRB was paid will refund a percent of the bonus equal to the percent of obligated service not performed.  The servicing finance office will perform recoupment of the portion of the bonus before the Soldier’s discharge.

17.  The DOD Financial Management Regulation, Volume 7A, paragraph 090503M(10) states that for the purpose of recouping 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.

18.  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 memorandum, same subject, dated 18 September 2007, modified on
21 May 2008, specifies rules regarding repayment of unearned portions of a bonus.  This memorandum authorized the establishment of additional exceptions if repayment would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States.  As a general rule, the memoranda direct that repayment would not be sought if the member's inability to fulfill the requirements is due to circumstances determined reasonably beyond the member's control.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her separation code should be corrected, her debt should be forgiven, and all money collected should be reimbursed.

2.  With respect to the separation code, the evidence of record shows the applicant failed to maintain an FCP.  Accordingly, separation action was initiated against her and she was ultimately discharged by reason of parenthood.  Her separation code was assigned based on the fact that she was discharged under the provisions of Army Regulation 635-200, chapter 5-8, due to parenthood.  Absent the parenthood issue, there was no fundamental reason to process her for discharge.  The underlying reason for her discharge was her failure to submit a viable/workable FCP.  The only valid narrative reason for separation permitted under that paragraph is "Parenthood" and the appropriate separation code associated with this discharge is "JDG," which is correctly shown on her DD Form 214.

3.  With respect to her debt, she reenlisted in December 2004 and she was entitled to a $10,000 bonus.  However, she was discharged in July 2006, prior to completing her enlistment.  Therefore, a legal and valid debt was established.  She had agreed upon her enlistment that she would be entitled to this bonus contingent upon completing her period of service.  She did not do so.  There is neither an error nor an injustice.

4.  With respect to the financial difficulties, her financial situation is noted.  Additionally, her remarkable attempts in communicating with various agencies regarding waiver of this debt are also noted.  However, in her correspondence, she gives the impression that she is entitled to a waiver of this debt.  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 is generally clear regarding recoupment for misconduct and voluntary failure to complete obligated service.  However, it is not clear on recoupment provisions for reasons in which the Soldier was involuntarily separated for conditions such as parenthood.

5.  DOD 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, in accordance with the Secretary of Defense memoranda, had the command elected to waive recoupment such action was authorized.  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.  
However, the DOD 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.

6.  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.  In that regard, if at the time she was discharged in July 2006 her commander had been aware of the subsequent provisions in the September 2007 memorandum there is a possibility the recoupment issue may have been viewed differently, although the commander’s intent was clear based on policy as it existed at that time.  Therefore, based on guidance in the DOD memorandum, the applicant should be granted partial relief in that any outstanding balance of her debt should be waived. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ____x____  __x___  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 the outstanding balance of her Regular Army Selective Reenlistment Bonus recoupment action was waived to the extent of allowing her to retain this balance 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 her separation code and 

reimbursement of any payments made since her discharge toward recoupment of her bonus.



      __________x_____________
               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)                                         AR20100010241



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ABCMR Record of Proceedings (cont)                                         AR20100010241



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