IN THE CASE OF:
BOARD DATE: 7 June 2011
DOCKET NUMBER: AR20100012964
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 that he be granted a waiver of indebtedness for a signing bonus.
2. The applicant states he was discharged for medical reasons and he should not be forced to repay the bonus since his separation was through no fault of his own. He wanted to remain on active duty.
3. The applicant provides a copy of a letter from the Defense Finance and Accounting Service (DFAS) in relation to his debt repayment.
CONSIDERATION OF EVIDENCE:
1. The applicant, an Alabama Army National Guard (ARNG) Soldier, served on active duty from 27 June 2006 through 13 February 2008.
2. The applicant was separated under the provisions of Army Regulation
635-200 (Personnel Separations), paragraph 5-17, for a physical condition, not a disability. His separation program designator (SPD) code is listed as JFV. The applicant is shown to have been released from active duty for training, discharged from the Reserve of the Army, and returned to the ARNG.
3. As a result of the active duty separation and discharge from the Reserve, the Alabama ARNG discharged the applicant effective 14 February 2008.
4. In the development of this case an advisory opinion was obtained from the National Guard Bureau Personnel Policy Division. The opinion stated the applicant received a Selective Enlistment Bonus for $20,000.00 with a 72-month service commitment. He received $10,000.00, but he did not complete the required 72 months of service. It cited an Assistant Secretary of the Army for Manpower and Reserve Affairs policy memorandum, dated 18 September 2007, that states "
a member who fulfills the condition of a written agreement related to satisfying certain eligibility requirements upon which the member's receipt of a pay or benefit is conditioned is entitled to the full amount of pay or benefits specified under that agreement, consistent with section 303a(e) of Title 37, U.S. Code, and Department of Defense policy memorandum, dated 8 April 2005. Any failure to fulfill the eligibility requirements specified in the written agreements may result in termination of the agreement and the member's repayment of an unearned portion of the pay or benefit. Repayment will not be sought if the member's inability to fulfill the eligibility requirement is due to circumstances determined reasonably beyond the member's control."
5. A copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut. No response has been received.
6. An SPD code cross-reference source previously provided by DFAS shows that personnel who are separated with an SPD of JFV (physical condition, not a disability) will not have any bonuses recouped. Note 1 states: "Bonus recoupment: 'Yes' means recoup unearned portion; 'No' means no recoupment and pay remaining installments as a lump sum."
7. Title 37, U.S. Code, section 303a(e)(1) states a member who receives a bonus shall repay an amount equal to the unearned portion of the bonus if the member fails to satisfy the eligibility requirements and may not receive any unpaid amounts of the bonus after the member fails to satisfy the requirements, unless the Secretary concerned determines that the imposition of the repayment requirement and termination of the payment of unpaid amounts of the bonus would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interst of the United States.
DISCUSSION AND CONCLUSIONS:
1. The applicant was separated for a physical condition, not a disability, with an SPD of JFV.
2. The issue of recoupment memorandum states that no recoupment is to be sought if the member's inability to fulfill the eligibility requirement is due to circumstances determined reasonably beyond the member's control. The applicant's service was terminated due to medical conditions beyond his control. Therefore, no recoupment should have been initiated.
3. Further, in accordance with statute, it would be in the interest of equity to allow the applicant to retain the bonus already paid to him and to pay him all unpaid amounts of the bonus due under his contract.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all State Army National Guard Records and Department of the Army records of the individual concerned be corrected by:
a. showing that, due to being separated for medical reasons beyond his control, he was approved for retention of any bonus monies he had already been paid and for payment of any all unpaid amounts of the bonus due under his contract; and
b. directing that DFAS halt all recoupment actions, refund any monies already recouped, and pay the applicant, out of Army National Guard funds, the remainder of the enlistment 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) AR20100012964
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ABCMR Record of Proceedings (cont) AR20100012964
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