BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110013186 


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 of $131,582.20.

2.  The applicant states she was honorably discharged under the “Don’t Ask Don’t Tell” policy in 2005 and that the Defense Finance and Accounting Service (DFAS) notified her of a debt in the amount of $131,582.20.  She indicates she has been paying $100.00 monthly for nine months in order to avoid a bad credit rating; however, she has protested the debt in multiple letters to DFAS.  She claims as a result of her honorable discharge she was not able to complete her 
4 year active duty service commitment required by her enrollment in the Military Health Professional Scholarship Program (HPSP).  She states in other words, the Army took away her opportunity to pay back the debt as agreed to in the HPSP contract.  She claims in August 2005, just prior to her discharge, she received a memorandum from the U.S. Army Human Resources Command (USAHRC) with her discharge orders that contained the following statement highlighted in yellow which indicates there should have been no recoupment action: 

Recoupment action is hereby waived in accordance with Deputy Secretary of Defense’s memorandum for the Secretaries of the Military Departments 'subject:  Recoupment of Education Assistance Funds, Bonuses, and Special Pay from Persons Disenrolled or Separated on the Basis of Homosexual Conduct, dated 17 May 1994.'


3.  The applicant provides a self-authored letter to the Board and the documents identified therein in support of her application.  

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.  On 11 June 1999, the applicant entered into an HPSP contract.  In this agreement, she acknowledged that she understood her program participation would result in her incurring an 8-year service obligation, a portion of which would be an active duty obligation (ADO).  She further acknowledged she understood that her ADO would be a minimum of 2 years, or one-half year for each half year of HPSP sponsorship, whichever was greater, and that the remaining portion of her service obligation would be a Reserve service obligation (RSO).  The applicant also agreed to reimburse the Government for all costs which it incurred, plus interest, or any portion thereof, as determined by the Secretary of the Army, if she voluntarily or because of misconduct, failed to complete her ADO, or the alternative service obligation, under the contract. 

3.  On 1 January 2005, the applicant submitted a memorandum to her battalion commander in which she declared she was gay (homosexual).  She further indicated the Don’t Ask Don’t Tell policy prohibited her from having the most basic rights and fostered discrimination in the military.  

4.  On 10 May 2005, the applicant’s battalion commander appointed an investigating officer (IO) to complete a commander’s inquiry investigation of the applicant’s statement regarding her violation of the Army’s homosexual policy.  

5.  On 14 February 2005, the IO completed the investigation into the applicant’s 
1 January 2005 memorandum to her battalion commander.  The IO found the applicant’s statement, past experiences, and present homosexual behavior were in violation of Army regulation.  He further determined the applicant’s homosexual statement was credible and recommended an honorable discharge and that the applicant repay any accrued debts.  

6.  On 12 May 2005, the battalion commander accepted the IO's report and indicated that his commander’s inquiry resulted in his determination that the applicant was a homosexual and would continue that behavior.  He recommended the applicant be honorably discharged by reason of violating the Army’s homosexual policy and that she be required to pay back debts owed the Army and U.S. Government.  

7.  On 20 June 2005, the commanding general (CG), 2nd Infantry Division, initiated elimination action on the applicant and informed her she was required to show cause for retention on active duty based on homosexual conduct.  The applicant acknowledged receipt of the notification on 21 June 2005.  

8.  On 31 August 2005, the Chief, Officer Accessions Branch, USAHRC, issued a message Subject: Resignation in Lieu of Elimination to the CG, 2nd Infantry Division, confirming the applicant’s resignation in lieu of elimination was approved by the Deputy Assistant Secretary (Army Review Boards) on 17 August 2005.  It directed that the applicant's discharge be accomplished not later than
21 calendar days after the applicant was notified; but in no case would the discharge be delayed beyond 30 days.  This message further indicated recoupment action was waived in accordance with Deputy Secretary of Defense Memorandum for Secretaries of the Military Departments "subject:  Recoupement of Education Funds, Bonues and Special Pay from Persons Disenrolled or Separated on the Basis of Homosexual Conduct, dated 17 May 1994."

9.  On 24 September 2005, the applicant was honorably discharged, in the rank of captain, after completed 1 year, 2 months, 17 days of active military service.  

10.  A DFAS letter to the applicant, dated 27 May 2010, notified the applicant the organization that initially notified DFAS of the applicant’s indebtedness had forwarded another debt for collection since the last debt notification.  The applicant was advised her new debt balance was $131,582.20 for recoupment of education expenses paid on her behalf during her participation in the HPSP.  

11.  Deputy Secretary of Defense Memorandum (the Deutch Memo), dated 
17 May 1994, governs recoupment against personnel separated or disenrolled for homosexual conduct.  The memorandum interprets Title 10 of the U.S. Code, Section 2005 in light of the “Don’t Ask Don’t Tell” policy.  It provided, in pertinent part, that although a service member's statement of sexual orientation, sometimes referred to as a “coming out statement” when not offset by evidence of celibacy, is sufficient for grounds of separation from the Armed Forces, such a statement is insufficient to constitute a basis for recoupment.  

12.  The Deutch Memo indicated that recoupment would be appropriate where, based on the circumstances, it is determined that the member made the statement for the purpose of seeking separation.  This memorandum reflects the operative recoupment policy of the Department of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to cancel the HPSP debt incurred as a result of her separation for homosexual conduct has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The policy outlined in the 17 May 1994 Under Secretary of Defense Memorandum, while indicating a statement of sexual orientation is sufficient for grounds of separation from the Armed Forces, is insufficient to constitute a basis for recoupment.  The Deutch Memo indicated that recoupment would be appropriate where, based on the circumstances, it is determined that the member made the statement for the purpose of seeking separation.  This memorandum reflects the operative recoupment policy of the Department of Defense.

3.  Notwithstanding the statement contained in the USAHRC message waiving recoupment, the applicant’s admission statement and the commander’s inquiry completed at the time clearly show the purpose of the applicant’s admission statement was to obtain separation.  The record also shows she ultimately voluntarily requested resignation in lieu of elimination.  

4.  Further, the chain of command up to and including the CG, 2nd Infantry Division supported recoupment and the applicant was aware of this at the time she voluntarily requested to resign in lieu of elimination.  “Don’t Ask Don’t Tell” was the policy in effect at the time the applicant entered into her HPSP contract and at the time she made her voluntary homosexual conduct admission.  The applicant enjoyed the benefits of the education and in making her admission statement she was in effect requesting separation and choosing not to honor the military service agreement contained in her HPSP contract.  As a result, absent evidence of error or injustice in the separation process, it would be appropriate to hold the applicant accountable for recoupment based on the terms of her HPSP contract.   




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  _x_______  _x___  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.



      _______ _  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)                                         AR20110013186



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013186



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1