IN THE CASE OF:
BOARD DATE: 11 December 2014
DOCKET NUMBER: AR20140007492
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 remission of indebtedness resulting from the recoupment of his bonus.
2. The applicant states:
* he is unable to work due to his service-related disability
* he has a family of five to support
* he has no means with which to repay the debt
3. The applicant provides:
* U.S. Army Human Resources Command memorandum disapproving his request for remission or cancellation of indebtedness
* Social Security Administration Retirement, Survivors and Disability Insurance Notice of Award
* Department of Veterans Affairs (VA) Rating Decision
* VA Form 21-0958 (Notice of Disagreement)
* VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits)
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness)
* DA Form 2823 (Sworn Statement)
* Bonus Recoupment worksheet
* DFAS-IN Form 0-641 (Statement of Military Pay Account)
CONSIDERATION OF EVIDENCE:
1. On 14 September 2005 following prior service in the U.S. Navy, the applicant was appointed as an officer in the Army and ordered to active duty as a first lieutenant (1LT) in the Corps of Engineers.
2. On 28 September 2007, the applicant signed a Fiscal Year 2007/2008 Army Officer Menu of Incentives Contract agreeing to an active duty service obligation (ADSO) of 3 years in exchange for the designation of Finance Branch as his branch/functional area of choice. The applicant served the required ADSO incurred through receipt of this incentive.
3. The applicant served in Iraq from 2 June 2011 through 1 June 2012. While deployed, it appears the applicant received an Officer Critical Skills Retention Bonus (CSRB) of $30,000.00 on 26 May 2012, incurring an obligated service commitment of 60 months as reflected in the Defense Finance and Accounting Service (DFAS) Bonus Recoupment worksheet.
4. Although the applicant's signed contract from 26 May 2012 is not available for review, such contracts contain the following standard acknowledgements and statements of understanding, as evidenced in the applicant's previously-signed contract from 2007:
a. I understand that the ADSO incurred will be served in addition to any other non-statutory ADSO.
b. Requests for release from active duty or voluntary retirement with an effective date during the period of this agreement will be disapproved except where considered to be in the best interest of the Army.
c. In the event of termination, unearned CSRB payments will be recouped by the government and shall be subject to the repayment provisions of Title 37, U.S. Code, section 303a(e), based on the length of CSRB active duty obligation actually served, unless the failure to complete the period of active duty specified in the agreement is due to:
(1) death or disability that is not the result of misconduct or willful neglect and not incurred during a period of unauthorized absence or
(2) separation from the military service by operation of law or regulation of the Department of Defense or the Army when waiver for recoupment has been approved by the Secretary of the Army.
5. On 19 July 2012, the applicant submitted a request for resignation in lieu of elimination and his resignation was accepted by the Department of Army Ad Hoc Review Board on 13 October 2012.
6. On 24 October 2012, the applicant was honorably discharged from the Army in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b and 4-24a(1). His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects a separation code of BNC (Misconduct and Moral or Professional Dereliction).
7. The DFAS-IN Form 0-641, generated on 4 December 2012, reflects a debt computation of $17,298.33 due to the recoupment of $27,516.67 of the applicant's CSRB, the amount of which was based on his remaining unserved obligated days. The reason for debt states: "Recoupment is required for the unearned portion of your enlistment or reenlistment bonus based on your separation code BNC. Your enlistment [sic] contract obligated you to perform duty through 05/27/2017 [25 May 2017] and at separation you had 1651 unserved days [4 years, 7 months, and 1 day]."
8. The applicant filed a disability claim with the VA that was received by that office on 30 November 2012. His VA Rating Decision, dated 8 May 2013, reflects the following determination:
* service connection for degenerative disc disease, lumbar spine, is granted with an evaluation of 20 percent effective 25 October 2012
* service connection for radiculopathy (irritation or injury to a nerve root), left lower extremity, is granted with an evaluation of 10 percent effective 25 October 2012
* service connection for synovitis (inflammation of connective tissue membrane) and metatarsalgia (cramping pain where the metatarsal foot bones meet toe bones), left foot, is granted with an evaluation of 10 percent effective 25 October 2012
* service connection for closed fracture, left fifth finger proximal interphalangeal joint, is granted with an evaluation of 0 percent effective 25 October 2012
* service connection for post-traumatic stress disorder is denied
9. The applicant filed a Notice of Disagreement with the VA on 9 August 2013 requesting service connection for post-traumatic stress disorder. The VA response to his follow-up application is not available for review and was not provided by the applicant.
10. On 22 January 2014, the applicant submitted a DA Form 3508 requesting remission or cancellation of his indebtedness which states, in effect:
* he is unable to repay the debt and simultaneously provide for his family
* he relies on his parents for financial support
* he is unable to perform manual labor due to his service-related back injuries
* he filed for bankruptcy in order to feed his family
11. On 21 February 2014, the U.S. Army Human Resources Command disapproved his application for remission or cancellation of indebtedness. The review determined no grounds exist to remit or cancel the debt based on hardship and/or injustice.
DISCUSSION AND CONCLUSIONS:
1. Records indicate the applicant received a $30,000.00 CSRB on 26 May 2012 which obligated him to a 60-month ADSO.
2. While not available for review, it must be presumed that his contract advised him of recoupment of the unearned portion of the incentive in the event of failure to fulfill the required ADSO.
3. He voluntarily requested resignation in lieu of elimination on 19 July 2012, less than 2 months after approval of the CSRB.
4. He was honorably discharged from the Army on 24 October 2012 and assigned a separation code of BNC (Misconduct and Moral or Professional Dereliction), following which DFAS assessed a debt against him for the unearned portion of the CRSC as his contract obligated him to perform duty through 25 May 2017.
5. He filed a disability claim with the VA and received a cumulative rating of
40-percent service-connected disability on 8 May 2013. Service connection for post-traumatic stress disorder was denied.
6. He asserted in his request for remission of debt that he is unable to work, thus he cannot adequately provide for his family. He stated he is unable to repay the debt and he never expected to get out of the Army.
7. The applicant voluntarily requested resignation in lieu of elimination a mere 54 days after approval of the CSRB incentive, receipt of which required a 5-year ADSO. He was well aware of the potential impending elimination action brought on by his own personal misconduct that transpired well prior to receipt of the CSRB bonus.
8. There are no grounds to remit or cancel the debt based on hardship and/or injustice.
9. Based on the available evidence, recoupment of his CSRB is proper and he is not entitled to the requested relief.
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 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) AR20140007492
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