IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140008278 


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, in effect, a waiver of the recoupment of his educational assistance debt in the amount of $30,352.01.

2.  He states he would only be responsible for repayment if he failed to fulfill his duty contract due to voluntary resignation or misconduct in accordance with paragraph IIf of the U.S. Military Academy (USMA) contract agreement.  He was involuntary separated for reasons other than misconduct and he was never counseled that his actions could potentially lead to his separation.  Since his separation was for reasons other than specifically stated in the contract, the debt should not be held against him.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* USMA Form 5-50 (USMA)
* USMA Graduate School for Service Contract
* elimination packet with applicant's rebuttal
* Defense Finance and Accounting Service (DFAS) documents

CONSIDERATION OF EVIDENCE:

1.  On 27 June 2005, the applicant completed a USMA Form 5-50.


2.  Section II (Agreement to Serve) of this form shows he agreed to the following conditions:

	a.  Paragraph IId states, "To serve a total of eight (8) years from graduation from the United States Military Academy.  Any part of that service not completed on active duty must be served in a Reserve Component (not on active duty), unless I am discharged from the Reserve Component by proper military authority."

	b.  Paragraph IIe states, "That if I fail to complete the course of instruction of the United States Military Academy, breach my service agreement as defined in paragraph 1.g.(3), Statement of Policies on the next page, or decline to accept an appointment as a commissioned officer, I will serve on active duty as specified in paragraphs 1.b through 1.g, which are contained in the Statement of Policies on the next page."

	c.  Paragraph IIf states, "That if I voluntarily fail, or because of misconduct fail, to complete the period of active duty specified in paragraphs IIb, c, d or e above, I will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided me as the unserved portion of active duty bears to the total period of active duty I have agreed to serve."

	d.  Paragraph IIg states, "Further, that if I am separated from the United States Military Academy for breach of this service agreement, as defined in paragraph 1.g.(3), Statement of Policies on the next page, and the Army decides that I should not be ordered to active duty because such service would not be in the best interest of the Army, I shall be considered to have either voluntarily or because of misconduct failed to complete the period of active duty and may be required to reimburse the United States as described above."

	e.  Paragraph IIh states, "For the purpose of this paragraph:

		(1)  The term 'voluntarily fail' includes, but is not limited to, failure to complete the period of active duty because of conscientious objection, because of resignation from the United States Military Academy or United States Army, and marriage while a cadet.

		(2)  The term 'because of misconduct' includes, but is not limited to, termination by the United States Army of my service because of homosexual conduct, criminal conduct, conduct violating the Cadet Honor Code, conduct deficiency under the Cadet Disciplinary System, conduct violating regulations for the discipline of the Corps of Cadets.

		(3)  The term 'course of instruction' is synonymous with the term 'educational requirements' as the term is used in 10 USC 2005 [Title 10, U.S. Code, section 2005]."

3.  On 9 February 2009, the applicant signed the USMA Graduate School for Service Contract.  He agreed to incur an additional active duty service obligation (ADSO) of 3 years.  He signed the agreement with the understanding that he would be subjected to reimbursement for a prorated share of his graduate education in the event that he failed to complete the additional ADSO incurred for exercising his option to attend graduate school in accordance with Title 10, U.S. Code, section 2005, and Army Regulation 350-100 (Officer ADSO).

4.  On 23 May 2009, he was appointed as a second lieutenant in the Regular Army.

5.  On 20 August 2009, he successfully completed the officer basic course and he successfully graduated from the Engineer Basic Officer Leader Course on 9 December 2009.

6.  He served in Iraq from 4 November 2010 to 7 November 2011 in support of Operation Iraqi Freedom.

7.  On 14 December 2012, the Commanding General (CG), U.S. Army Human Resources Command (HRC), notified the applicant that he was identified by the Fiscal Year 2012 Captain, Army Competitive Category, Promotion Selection Board to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) because of substandard performance of duty.  The CG stated the action was based on two referred Officer Evaluation Reports (OERs) for the periods 21 July 2010 to 9 May 2011 and 18 May 2011 to 7 February 2012 that were filed in his Official Military Personnel File.

8.  On 2 January 2013, the applicant acknowledged receipt of the officer elimination initiation memorandum.  He initialed the block indicating he elected to submit a statement or documents on his behalf.

9.  On 5 February 2013, the applicant submitted his rebuttal to the initiation of elimination action.  He stated he had never been relieved for cause, been subjected to any administrative or punitive reprimand, or had any specific negative charges brought against him.  There was nothing tangible and nothing specific to separate him.  His job assignments directly contradict both of the OERs on which his separation was based.  He cited inequities listed in both of his referred OERs and offered that his career thus far was rife with injustice and inconsistencies.  His file did not reflect the same opinion of his abilities as did his job assignments.  His separation was unjust in that it was based on evaluations that were themselves unfair and baseless.

10.  After considering all matters in the applicant's case, to include his rebuttal statement, his chain of command recommended his elimination from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 600-8-24, paragraph 4-2(a), by reason of substandard performance of duty with characterization of his service as honorable.

11.  On 22 May 2013, the Deputy Assistant Secretary of the Army (Review Boards) reviewed the recommendation of the general officer show cause authority and determined the applicant would be involuntarily eliminated from the U.S. Army.  She further stated that recoupment action would be conducted in accordance with Army Regulation 600-8-24, paragraph 1-16, and Title 10, U.S. Code, section 2005.

12.  On 27 June 2013, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2a, by reason of substandard performance with his service characterized as honorable.  It also shows he completed 4 years, 1 month, and 27 days of net active service.

13.  DFAS documents, dated 13 September 2013, show the applicant was indebted to the U.S. Government for tuition assistance received prior to his separation in the amount of $30,352.01.

14.  Information obtained from DFAS on 16 May 2014 shows his debt had increased from $30,352.01 to $30,405.99 with $53.98 listed as penalties and interest.

15.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Components and discharge functions for all officers on active duty for 30 days or more.  Paragraph 1-16 states that individuals who participate in certain advanced education programs and fail to complete their educational requirements or military service obligations are subject to the recoupment provisions of Army Regulation 37-104-4 (Military Pay and Allowances), chapter 31.  This must be accomplished prior to separation of an individual who has not fulfilled the ADSO incurred as a result of participation in that advanced education program in accordance with applicable law and regulations.


16.  Army Regulation 37-104-4, chapter 31 (Recoupment of Advanced Civilian Education Expenses), states recoupment applies to those individuals who have signed an agreement that contains recoupment provisions.  Recoupment action will be taken at transition when the personnel and finance communities identify a Soldier or cadet as being eligible for recoupment action.  The finance officer/defense military pay officer will offset all final pay and allowances due the Soldier on transition against the amount of the cost of advanced education due the U.S. Government.  It should be noted that if the Soldier's net entitlements are not sufficient to totally offset the indebtedness, the Soldier should be encouraged to use personal funds to liquidate the debt.

17.  Title 10, U.S. Code, section 2005(a), states the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement under the terms of which such person shall agree:  (1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; (2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement; (3) that if such person does not complete the period of active duty specified in the agreement or does not fulfill any term or condition prescribed pursuant to paragraph; and (4) such person shall repay to the United States an amount equal to the unearned portion of the bonus or similar benefit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that since he did not voluntarily resign or was not separated for misconduct, he should not be required to reimburse the U.S. Government for the cost of his educational assistance.

2.  The evidence of record shows he was identified by the Fiscal Year 2012 Captain, Army Competitive Category, Promotion Selection Board to show cause for retention on active duty because of substandard duty performance.  His chain of command considered all matters in the applicant's case and recommended his elimination from the Army prior to the expiration of his current term of service.  Additionally, the Deputy Assistant Secretary of the Army (Review Boards) reviewed the recommendation of the general officer show cause authority and determined the applicant would be involuntarily eliminated from the U.S. Army and recoupment action would be conducted.



3.  The evidence further shows he was eliminated from the U.S. Army because of "substandard duty performance."  The USMA Form 5-50 clearly stated that "if I voluntarily fail, or because of misconduct fail" to complete the period of active duty specified (8 years), he would be required to reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided him as the unserved portion of active duty bears to the period of active duty he agreed to serve.  He breached his contract agreement by being eliminated for substandard performance prior to completion of the period of active duty specified in his term of agreement.  Therefore his breach was considered voluntary and, as such, 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)                                         AR20140008278



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ABCMR Record of Proceedings (cont)                                         AR20140008278



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