IN THE CASE OF:  

		BOARD DATE:  4 September 2014   	  

		DOCKET NUMBER:  AR20140001483 


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 relief from a bonus recoupment debt and reimbursement for all funds previously recouped.

2.  The applicant states he enlisted in the U.S. Army Reserve (USAR) in March 2008, for a $20,000.00 non-prior service (NPS) bonus.  He served 41 of the 72 months required by his contract.  On 11 August 2011, he was issued an erroneous discharge and his character of service was listed as under other than honorable conditions.  

	a.  On 2 November 2011, his erroneous discharge order was rescinded and he was honorably discharged in accordance with Army Regulation 135-178 (Enlisted Administrative Separations), for hardship reasons.

	b.  Subsequent to his discharge, the Defense Finance and Accounting Service (DFAS) initiated an erroneous collection action for the pro-rated balance of his enlistment bonus in the amount of $3,611.11.

3.  The applicant provides:

* self-authored statement
* Orders Number 11-306-00119, dated 2 November 2011
* letter to his Member of Congress, undated



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 12 March 2008.  His enlistment contract contains a DA Form 5261 (Selected Reserve Incentive Program (SRIP) – Enlistment Bonus Addendum) showing he enlisted for an NPS enlistment bonus of $20,000.00.  His SRIP addendum shows he agreed to serve the initial 6 years of his contract in a USAR bonus unit or in a USAR bonus military occupational specialty (MOS) unless excused for the convenience of the government and that he understood his bonus could be terminated or recouped if he failed to meet his contractual obligations.

2.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered initial active duty for training (IADT) on 16 July 2008 and was released from active duty at the completion of his required active service on 
12 December 2008.

3.  His record does not contain a separation order; however, it does contain an entry in the interactive web system (IWS), a system maintained by the U.S. Army Human Recourses Command (HRC), showing he was discharged on 
2 November 2011 for hardship-other than parenthood - voluntary.

4.  He provided Orders Number 11-306-00119, issued by Headquarters, 63rd Regional Support Command, Mountain View, CA, on 2 November 2011, showing he was honorably discharged, in accordance with Army Regulation 135-178 (Enlisted Administrative Separations), effective 2 November 2011.

5.  He provided a letter to his Member of Congress, wherein he indicated he was discharged for hardship reasons and stated his autistic sister lives with him, his wife, and their baby.  He further indicated that his debt is causing considerable emotional and financial stress for his family.

6.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, on 21 February 2014.  The G-1 recommended the applicant be granted relief from recoupment of his bonus debt and the advisory official stated:

	a.  The G-1 reviewed the bonus recoupment action based on his honorable discharge from the USAR, for dependency/hardship on 2 November 2011.  He was not discharged as a result of misconduct.  

	b.  Department of Defense (DOD) Financial Management Regulation (FMR) Volume 7A, Chapter 9, Paragraph 090403 states, "Hardship and dependency separations are considered involuntary for the purposes of this paragraph and do not require recoupment of unearned portions of a bonus."  

	c.  Additionally, based on the ruling by the Office of the Under Secretary of Defense (USD), dated 21 May 2008, regarding recoupment of bonuses, in cases where it is against equity, good conscious, and management objectives or contrary to the best interest of the United States, repayment of bonuses is not required.

7.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the USAR.

	a.  Paragraph 4–2a (Statutory military service obligation) states a person whose initial entry into military service was on or after 1 June 1984, incurred an obligation under 10 USC 651(a) to serve a period of 8 years in the military service from the date of entry unless sooner discharged for personal hardship.

	b.  Paragraph 6–2. (Dependency or hardship) and 6-2c state, upon the request of a Soldier and approval of the separation authority, separation may be directed when it is considered that continued membership and service on AD, full-time National Guard duty (FTNGD), or active duty for training (ADT), would result in genuine dependency or undue hardship.  

		(1)  Dependency exists when, because of death or disability of a member of a Soldier’s Family, other members of his or her Family become principally dependent on him or her for care or support to the extent that continued membership and service on AD, FTNGD, or ADT, would result in undue hardship.

		(2)  Hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s Family, separation from the service would materially affect the care or support of the Soldier’s Family by materially alleviating undue hardship.

8.  DOD FMR, Volume 7A, Chapter 2, states in:

	a.  Paragraph 0201, a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as “pay or benefit”), is entitled to the full amount of the pay or benefit if the member fulfills the required conditions.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated, and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member’s failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member’s control.  Conditions under which repayment will not be sought are set forth in section 0203.

	b.  Paragraph 020303, as a general rule, repayment action will not be pursued in situations in which the member’s inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member’s control.  Payment of any unpaid portion of pay or benefit will be subject to the rules in Table 2-1, which in appropriate circumstances provide discretion to the Secretary of the Military Department concerned to pay unearned portions based on case-by-case determinations.

	c.  Table 2-1, item 8 , if a member is under a written agreement for a pay or benefit, and is separated from service under a hardship separation then repayment of the unearned portion of the pay or benefit will not be sought.  However, any unpaid portion of the bonus, special pay, or student loan repayment under Title 10 or Title 37, USC will not be paid.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was honorably separated for hardship reasons.  However, his separation orders failed to appropriately document/cite the paragraph of Army Regulation 135-178 he was separated under, or indicate in special instructions that Recoupment of his bonus was not authorized.  Therefore, recoupment of the unearned portions of his bonus was erroneously sought.

2.  His separation orders should be corrected to show he was separated in accordance with Army Regulation 135-178, paragraph 6-2c for Dependency and Hardship.  His orders should also state, under special instructions, that in accordance with DOD FMR, Volume 7A, Chapter 2, Paragraph 020303 and Table 2-1, repayment of the unearned portion of his bonus will not be sought.  

3.  Furthermore, since the collection was erroneously sought, all collection resulting from the unearned portion of his bonus should be immediately cancelled.  Additionally, DFAS should repay him any portion of the debt previously collected.



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.  amending Orders Number 11-306-00119, issued by Headquarters, 63rd Regional Support Command, Mountain View, CA, on 2 November 2011 to show:

		(1)  Authority:  Army Regulation 135-178, paragraph 6-2c, Dependency and Hardship

		(2)  Additional Instructions:  In accordance with DOD FMR, Volume 7A, Chapter 2, Paragraph 020303 and Table 2-1, repayment of the unearned portion of the Soldiers bonus will not be sought

	b.  cancelling any bonus recoupment actions and reimbursing any monies previously recouped 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)                                         AR20140001483



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ABCMR Record of Proceedings (cont)                                         AR20140001483



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