IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120003013 


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 the recoupment of her reenlistment bonus and reimbursement for all payments previously made.

2.  The applicant states:

* she was involuntarily separated due to her brother who was her son's custodial parent
* her brother fell ill while she was deployed to Iraq
* her spouse is still deployed

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 June 2010
* Official Red Cross Message, dated 20 April 2010
* Memorandum for Record (MFR) from a legal assistance attorney, Spartan Brigade Office Legal Team, 2nd Brigade Combat Team (BCT), Iraq, dated 12 April 2010
* Defense Finance and Accounting Service (DFAS), Indianapolis, IN letter, dated 20 December 2011
* Leave and Earnings Statement (LES) for the period 1 through 31 July 2010
* DFAS Form 705 (Certificate for Income Tax Adjustment)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 12 December 2006 for a period of 3 years and two weeks in the rank/grade of private (PV2)/E-2.

2.  Although her reenlistment contract is not available for review, the available evidence shows she reenlisted in the RA on 3 July 2008 for a period of 5 years.  She served in Iraq from 30 April 2008 - 7 July 2008 and from 2 December
2009 - 23 May 2010.

3.  On 10 April 2010, the applicant received an official Red Cross message stating that her brother requested her presence due to his illness.  Her brother was the legal guardian of her son (age 2) and he was no longer able to care for the applicant's son due to his illness.  Both the applicant and her spouse were deployed at the time.

4.  On 12 April 2010, a legal assistance officer at the Spartan Brigade Office Legal Team prepared an MFR for the applicant's chain of command requesting the applicant be granted emergency leave to return home and come up with a new family care plan.  The MFR stated the applicant was handed the Red Cross message by her first sergeant who then told her to write a statement as to why her family care plan had failed.  She was not given the opportunity to speak to counsel and it was unclear if she was able to have any time to do anything about her situation.  She was told by her chain of command she was being "chaptered" out of the Army.  The applicant requested the opportunity to go home to care for her son.  She stated she wanted to stay in the Army, but her son must come first.

5.  The MFR stated the applicant was told she had to sign a counseling statement in order to be released from theater and she had to "waive her 30 days" in order to get out of theater.  According to the MFR the counseling statement indicated she "will be immediately processed for elimination under "chapter 5-8."  (There is no "process for elimination" under chapter 5-8.)  The MFR cited provisions contained in Army Regulation 600-20 (Army Command Policy), paragraph 5-5 (Family Care Plan), and Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-8 (Involuntary separation due to parenthood).  The applicant requested allowance to exercise her right to try to rework her family care plan or be provided the opportunity to transfer to Fort Stewart, GA and to continue her military career.  The MFR requested a complete reading of the regulations and documents and that all facts be carefully considered by her chain of command.

6.  However, on 16 June 2010, the applicant was involuntarily discharged under the provision of Army Regulation 635-200, chapter 5-8, due to parenthood.  She 

completed 3 years, 6 months, and 5 days of net active service this period.  Item 26 (Separation Code) of her DD Form 214 shows the entry "JDG."

7.  The applicant submitted a copy of her LES for the period 1 through 31 July 2010 that shows her selective reenlistment bonus (SRB) in the amount of $6,523.81 was recouped.

8.  DFAS verified the applicant's actual recoupment amount was $6,523.81 and that as of 27 February 2012, the balance of her debt was $1,874.95.

9.  On 1 March 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff (ODCS), G-1.  The advisory official states the applicant reenlisted and that she was an otherwise good Soldier who served honorably, including a tour in Iraq.  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 (Army Retention Program).  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.  The Department of Defense Financial Management Regulation (DoDFMR) states that parenthood separations are among those listed conditions that are subject to recoupment; however, had her command elected to waive recoupment such action was authorized.

10.  The advisory official further states that on 21 May 2008 and in earlier actions, the Office of the Under Secretary of Defense (USD) issued further clarification to the services regarding bonus recoupment.  The Principle Deputy Under Secretary of Defense (PDUSD) memorandum states:

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.  Soldiers who had their bonus, special pay, educational benefits, or stipend payments stopped before the effective date of clarification may also retain their incentive.

11.  The PDUSD 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 the personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.  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 O-6 level commander has the authority to act on the recoupment action.
12.  The advisory official goes on to state that a supporting letter from an Office of the Judge Advocate General lawyer opined that the applicant had not received adequate counseling, but no record exists of any statement or decision by the senior commander.  Therefore, the recommendation is that the Board find in favor of the applicant based on the guidance in the USD memorandum.

13.  A copy of the advisory opinion was provided to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

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

15.  The DoDFMR, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and her supporting evidence has been carefully considered.

2.  The applicant was involuntarily discharged on 16 June 2010 under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood. The official Red Cross message states her brother requested her presence due to his illness.  Her brother was the legal guardian of her 2-year old son and he was no longer able to care for her son due to his own illness.  The previous guidance was changed to allow O-6 level commanders to waive recoupment action in hardship cases.

3.  The applicant completed 3 years, 6 months, and 5 days of net active service this period including two deployments to Iraq.  The evidence shows she requested to be granted emergency leave to return home and come up with a new family care plan.  However, she was clearly involuntarily discharged by her command.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below. 

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 that her RA reenlistment bonus recoupment action was waived by the first O-6 level commander in her chain of command to allow her to retain the bonus, and

	b.  directing DFAS to audit her pay account and reimburse her the entire amount of monies that have been recouped from her RA reenlistment bonus as a result of this correction.



      ___________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)                                         AR20120003013



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ABCMR Record of Proceedings (cont)                                         AR20120003013



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