IN THE CASE OF:	   

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140012476 


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 action pertaining to her enlistment bonus and repayment of all monies previously recouped. 

2.  The applicant states the repayment order is neither valid nor accurate because the terms of her first enlistment contract was satisfied in full upon her reenlisting on 25 January 2011.  

3.  The applicant provides:

* her enlistment contract, dated 15 July 2008, including allied documents
* her reenlistment contract, dated 25 January 2011
* her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 March 2012
* her Leave and Earning Statements (LES), for the periods 1-31 March 2012 and 1-30 April 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 29 September 2008.  Her 
DA Form 3286 (Statement for Enlistment – U.S. Army Enlistment Program – U.S. Army Delayed Entry Program) shows:

* she enlisted for training in military occupational specialty (MOS) 68W (Health Care Specialist)
* she enlisted under the U.S. Army Incentive Enlistment Program (Reduced Military Service Obligation (MSO) Enlistment Bonus 3 Years Active and    3 Years Selected Reserve)
* she was authorized an enlistment bonus in the amount of $30,000

2.  The DA Form 3286 also shows she acknowledged she understood that:

	a.  Her initial term of service would be in the RA.

	b.  Upon separation from the RA, she agreed to serve in her MOS for 3 years in an Army National Guard (ARNG) or U.S. Army Reserve (USAR) unit.

	c.  Each person who initially enlists into the Armed Forces incurs an 8-year MSO (6 years under this option), and the time spent in the RA and the ARNG/USAR unit is creditable toward that 8-year MSO (6 years under this option).  If she extended her RA enlistment for not less than 1 year, or reenlisted in the RA for 3 years or more, no further ARNG/USAR unit commitments were required.  

	d.  If she failed to complete her initial term of service in the incentivized MOS due to misconduct, her bonus would be forfeited and any unearned amount would be refunded.  

3.  On 25 January 2011, she reenlisted in the RA for a period of 3 years.  Her reenlistment contract does not show entitlement to a reenlistment bonus.

4.  On 15 February 2012, she was counseled regarding her requirement to have a family care plan and to ensure the care of her dependents in the event of a deployment, in accordance with Army Regulation 600-20 (Army Command Policy), paragraph 5-5.  She was informed she had 30 days from the date of the counseling to complete her family care plan.  She was also informed that if she failed to complete her family care plan on time, administrative action could be taken against her to include separation from the military.  

5.  She submitted a memorandum on 15 February 2012, in which she waived the 30-day period to establish a short/long term family care plan.  She indicated she had been looking for family care providers since 27 January 2012 without success. 

6.  On 22 February 2012, her immediate commander notified her of his intention to involuntarily separate her from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8 (Involuntary Separation Due to Parenthood).  As the reason for her separation, her commander cited the fact that she did not have a valid family care plan and as a result she was not available for worldwide assignment or deployment according to the needs of the Army.  She was advised of her right to:

* consult with consulting counsel and/or civilian counsel at no expense to the government
* submit statements in her own behalf
* waive her rights in writing

7.  She acknowledged receipt of the proposed separation action on 22 February 2012.  She declined the opportunity to consult with counsel and elected not to submit a statement in her own behalf.  

8.  She was discharged accordingly on 30 March 2012.  The approving authority stated that, after considering the need to retain trained personnel in the Individual Ready Reserve (IRR) for mobilization purposes, he determined not to transfer her to the IRR to complete her statutory service obligation.

9.  In the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, at Headquarters, Department of the Army.  The advisory opinion states:

	a.  The applicant entered active duty in September 2008, reenlisted in January 2011, and she was separated in March 2012 for parenthood.  She was an otherwise good Soldier who served honorably.

	b.  She enlisted under the 3+3 program.  The 3+3 option was negated once she reenlisted in the active Army.

	c.  She completed the first term of service (3 years) and the additional 3 years served on the reenlistment would have replaced the Reserve Component commitment.  Enlistment bonuses for RA Soldiers are based on the active duty portion of service.  Although she was obligated to serve at least 3 additional years in any capacity, it is likely that her failure to complete the full 3+3 obligation led her command to take recoupment action.

	d.  Bonuses are routinely recouped when the separation occurs through voluntary actions or through the fault of the Soldier.  Army Regulation 601-280 (Army Retention Program) 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.  

	e.  The Department of Defense Financial Management Regulation (DODFMR), Volume 7A, provides 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.

	f.  On 21 May 2008 and in earlier actions, the Office of the Under Secretary of Defense issued further clarification to the services regarding bonus recoupment.  The issue of termination and recouping of bonus funds is addressed in:
		
		(1)  Deputy Secretary of Defense Memorandum, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 8 April 2005.

		(2)  Principal Deputy Under Secretary of Defense (PDUSD) memorandum, subject:  Repayments of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 18 September 2007.

		(3)  PDUSD memorandum, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 21 May 2008.

	g.  The basis of the above documents state:  "To the extent permitted by law, personnel who receive a bonus are affected by the new policy.  Soldiers who had their bonus stopped before the effective date of this memorandum may also retain their incentive."

	h.  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 a personnel policy, management objectives, against equity and good conscience, or contrary to the best interest of the United States.  Although the afore cited memoranda address 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.  The fact that she completed her first term of service is also reason to grant an exception.

10.  The advisory opinion was provided to the applicant to give her the opportunity to submit comments or a rebuttal.  She responded and stated:

	a.  During her enlistment, she and her husband were both in the military.  They also had three children with ages ranging from 2 to 7.

	b.  Upon their permanent change of station to Fort Drum, NY, they had a family friend who was able to care for their children while they were on duty.  Unfortunately, in January 2012, their friend's daughter who had autism and other medical issues, suffered a broken ankle.  At that point, she lost her daycare provider as well as her short-term care provider.  She attempted to find another childcare provider; however, after calling about a dozen providers in the area she was not able to find one.  She even tried the Child Development Center on post, but they did not have openings.  

	c.  Her unit gave her adequate time to find a provider; however, due to her inability to find a child care provider, she was separated for parenthood.  

	d.  During her out-processing, she was informed by the finance office that because she did not complete her full 3+3 enlistment, she had incurred a debt to the government and that the Defense Finance and Accounting Service (DFAS) was required to take her last paycheck and all the leave she was going to cash-in.  She was also informed she was required to pay back almost $18,000.  At that time she went to her Retention Noncommissioned Officer (NCO) to figure out the situation.  The Retention NCO told her if she completed 3 years in the Reserve, the debt could have been eliminated; however, she had already cleared her unit and there was nothing they could do.

	e.  She was willing to complete the 3 years in the Reserve, but she was not given the chance.  She was given no help in this matter and her unit did not inform her about the debt.  When she found out about it, it was too late to fix.   

	f.  She was separated because of her children.  The Army always pushes how important family is and how we need to take care of our family in order to complete the mission.  Unfortunately, because she had to take care of her family, she incurred a debt that she cannot pay back.  She loves her country and she loves the Army; however, her children had to come first.

11.  Army Regulation 600-200 provides that the Army assists the Soldier in providing for the care of his or her family members.  Mission, readiness, and deployability needs especially affect Active Army, ARNG, and Army Reserve single parents and dual military couples with family members.  Plans must be made to ensure family members are properly and adequately cared for when the Soldier is deployed, on temporary duty, or otherwise not available due to military requirements.  

12.  Army Regulation 635-200, paragraph 5-8 provides that Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Separation processing may not be initiated under this paragraph until the Soldier has been adequately counseled concerning deficiencies and has been afforded the opportunity to overcome them.  Specific reasons for separation because of parenthood include:

* inability to perform prescribed duties satisfactorily
* repeated absenteeism
* repeated tardiness
* inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty NCO
* non-availability for worldwide assignment or deployment according to the needs of the Army

13.  Army Regulation 601-280, paragraph 5–13 provides that a Soldier who voluntarily or because of misconduct fails to complete obligated service for which an enlistment bonus was paid will refund a percent of the bonus equal to the percent of obligated service not performed.  The servicing finance and accounting office will perform recoupment of the portion of the bonus before the Soldier’s discharge.

14.  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.

15.  The Deputy Secretary of Defense memorandum, Subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits of Stipends, dated 8 April 2005; and the Principal Deputy Under Secretary of Defense memorandum, same subject, dated 18 September 2007, modified on
21 May 2008, specifies rules regarding repayment of unearned portions of a bonus.  This memorandum authorized the establishment of additional exceptions if repayment would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States.  As a general rule, the memoranda direct that repayment would not be sought if the member's inability to fulfill the requirements is due to circumstances determined reasonably beyond the member's control.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her debt should be forgiven and that all monies collected should be reimbursed.  

2.  The available record shows she enlisted in the RA on 29 September 2008 and she was authorized a $30,000 enlistment bonus with the condition that she would serve 3 years of active service and 3 years in the Selected Reserve.  

3.  She reenlisted in the RA for a period of 3 additional years with the intent of complying with the stipulations of her enlistment contract.  However, due to unforeseen circumstances her family care provider became unable to care for her children in the event of a deployment, thus rendering her temporarily unable to comply with the demands of military service.

4.  The pertinent DODFMR states that separations due to parenthood are among those listed conditions subject to recoupment; however, in accordance with the Secretary of Defense memoranda, recoupment in cases determined to be contrary to management objectives, against equity and good conscience, or contrary to the best interest of the United States can be waived.

5.  The DOD memoranda addresses hardship discharges as not being subject to recoupment; however, as pointed out in the advisory opinion, a parenthood separation may have hardship implications as well.  The DOD memoranda also provide that as a general rule, repayment would not be sought if the member's inability to fulfill the requirements is due to circumstances determined reasonably beyond the member's control.  The applicant's involuntary separation was a result of an unforeseen event and not as result of misconduct or a voluntary desire to disregard the stipulations of her enlistment contract.  

6.  Furthermore, the fact that she completed her first term of service and that she reenlisted with the intent of fully complying with the stipulations of her contract should also be considered.  

7.  Based on the foregoing, her records should be corrected to show that a request to waive recoupment of her enlistment bonus was approved, thereby stopping any recoupment action currently in progress.  Any monies that may have already been recouped should be returned to her.





BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing a request to waive recoupment of her bonus was approved. 

2.  As a result of the above correction, DFAS shall be notified of the Board's determination and:

* stop any recoupment action of her enlistment bonus
* return all monies that may have already been recouped



      ____________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)                                         AR20140012476



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ABCMR Record of Proceedings (cont)                                         AR20140012476



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