BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140012556 


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 her last pay check on active duty be reinstated and her debt of $5,016.67 be waived.  She also requests, in effect, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a different separation date. 

2.  The applicant states she submitted a request to leave active duty on 30 June 2014.  However, she communicated with her assignment officer and requested her final service day on active duty to be 21 July 2014.  The U.S. Army Human Resources Command (HRC) ignored her request and processed her request with a separation date of 30 June 2014.  She learned, only on 23 June 2014, when receiving her last Leave and Earnings Statement (LES) that she would not be receiving her final paycheck and that she has a debt created to the Army in the amount of $5,016.67.  This is not accurate.  The attached documentation provides exacting detail to support her claim.  HRC admitted they made an error to her in an email in July 2014.  As a result of her separation on 30 June 2014 vice 21 July 2014, finance recouped a prorated amount of her Medical Additional Special Pay (MASP), Medical Corps (MC) Specialty Incentive Pay (ISP), and Critical Wartime Skill Accession Bonus (CWSAB). 

3.  The applicant provides

* Active duty commissioning agreement
* Self-authored memorandum to the Defense Finance and Accounting Service (DFAS) and this Board 
* Orders A-07-019747 (active duty) and amendments
* DD Form 214, ending on 30 June 2014
* Request for Unqualified Resignation
* Approval of unqualified resignation
* Orders 024-0009 (release from active duty)
* June 2014 LES
* Breakdown of her debt
* Bonus recoupment worksheet
* Email exchange with her assignment officer
* Printout of duration between two dates
* Extract of Department of Defense (DOD) 7000.14-T (Financial Management Regulation (FMR)), Volume 7A
* Army Policy for Implementing the CWSAB for Physician and Dental Specialists for Fiscal Year 2009
* April 2013 ISP Agreement
* April 2013 MASP Agreement

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show she was awarded a Doctor of Osteopathic Medicine on 4 June 2005 and she completed her intern training from July 2005 to June 2006.  She was certified (October 2008 through December 2016) in Family Practice and Osteopathic Manipulation Treatment.   

2.  On 7 July 2010, HRC published orders ordering her to active duty as a Regular Army commissioned officer in the rank of captain (CPT) for a minimum active duty obligation of 48 months, effective 2 August 2010.  Her orders indicated she is eligible for the CWSAB for Physician and Dental Specialists. 

3.  She entered active duty in the rank of CPT on 22 July 2010.  She completed the Army Medical Department Basic Officer Leader Course from 30 August to 26 October 2010.  She was assigned to Fort Sam Houston, TX.

4.  She served in Iraq from 4 July 2011 to 28 January 2012.  Before and after her deployment, on 13 April 2011 and 19 April 2012, she executed:

* two agreements to serve one year of continuous active duty effective 22 July 2011 and 22 July 2012 in exchange for an MASP of $15,000 each
* two agreements to serve one year of continuous active duty effective 22 July 2011 and 22 July 2012 in exchange for ISP of $20,000 each

5.  On 15 August 2012, she was promoted to major.  She was assigned to the U.S. Army Health Clinic, Vilseck, Germany. 

6.  On 30 April 2013, she executed two agreements:

	a.  MASP agreement to serve one year of continuous active duty effective 22 July 2013 in exchange for an MASP of $15,000.  She understood that a request for resignation during the period of this agreement will be disapproved except where considered in the best interest of the Army or Reserve officers who qualify for hardship.  In the event of termination, unearned special pay will be recouped by the Government on a prorated basis unless separation is due to death or disability, or by operation of law (and a waiver is approved).  

	b.  ISP agreement to serve one year of continuous active duty effective 22 July 2013 in exchange for an MASP of $20,000.  She understood that a request for resignation during the period of this agreement will be disapproved except where considered in the best interest of the Army or Reserve officers who qualify for hardship.  In the event of termination, unearned special pay will be recouped by the Government on a prorated basis unless separation is due to death or disability, or by operation of law (and a waiver is approved).  

7.  On 1 July 2013, she tendered her unqualified resignation from active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 3, section II to be effective 30 June 2014, or as soon as practical thereafter.  She indicated she had fulfilled her active duty service obligation (ADSO).  She further requested appointment as a reserve commissioned officer upon her release from active duty.

8.  On 18 September 2013, Retention and Transition Branch, HRC, approved her request effective 30 June 2014 and indicated that this approval constitutes acceptance of a Reserve appointment. 

9.  She was honorably released from active duty on 30 June 2014 in accordance with paragraph 2-7 of Army Regulation 600-8-24 and she was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete her remaining service obligations.  She completed 3 years, 11 months, and 9 days of active service.  

10.  Her June 2014 LES shows a debt of $5,061.67, consisting of recoupment of the MASP and ISP in the amount of $2,041.67 and the CWSAB in the amount of $2,975.00, for the period 1 July through 22 July 2013 (21 days), as indicated below.  The LES shows her pay after adding her total entitlements of basic pay and other allowances, including the debt; deducting her total allotments, taxes, insurance, and leave payments; and subtracting her already-received mid-month pay: 

* MASP, $20,000 per year, recoup $1,166.67
* ISP, $15,000 per year, recoup $875.00
* CWSAB, $63,000 per year, recoup $2,975.00

11.  She provided a series of emails with her assignment officer: 

	a.  27 August 2013, from HRC MC branch assignment officer to applicant.  It states, "upon reviewing your unqualified resignation request packet, I noticed that your active duty separation request date is 30 June 2014 - but according to the Special Pay system, you have Special Pay Active Duty Service Obligation (ADSO) until 21 July 2014 (from ISP).  Based on information above, I would like to request you to concur with the change of your active duty service separation date - to 21 July 2014 or thereafter.  With special pay obligation still remaining, HRC MC Branch has placed a hold on your resignation request until it can be resolved.  Therefore, I need you to let me know as soon as you can, for your concurrence on the separation date change to 21 July 2014." 

	b.  27 August 2013, for HRC MC branch assignment officer to the unit G-1 alerting him that her email did not appear to be working and that he was in the process of reviewing her unqualified resignation request packet and needed a response from her soon. 

	c.  27 August 2013, from the unit G-1 to the applicant.

	d.  3 September 2013, from applicant to the unit G-1 and her assignment officer, indicating 21 July 2014 was fine, but not later than that date. 

	e.  3 September 2013, from assignment officer to applicant indicating he would push her email to the branch chief and try to get her date changed. 

	f.  31 July 2014, from assignment officer to applicant indicating that the Retention and Separation Branch informed him they could not adjust her separation date because she was no longer on active duty.   

12.  An advisory opinion was received from HRC on 2 September 2014 in the processing of this case.  An advisory official recommended disapproval of the applicant's request.  The official stated: 

	a.  The purpose of this memorandum is to provide the Board a response on the applicant's bonus recoupment.  She signed a one-year MASP and a one-year ISP agreement on 30 April 2013 to serve on active duty until 21 July 2014.  On 10 July 2013, she submitted her Unqualified Resignation (UQR) in accordance with Army Regulation 600-8-24, chapter 4 with a requested departure date of 30 June 2014.  She was notified by her assignments officer on 27 August 2013 that she was on an ADSO until 21 July 2014 and recommended that she amend her UQR until at least 21 July 2014.  She responded back on 03 September 2013 that she would stay until 21 July 2014, but not later.  On 18 September 2013 HRC cut orders for her with her originally requested departure date of 30 June 2014.  On 30 June 2014 she departed active duty.  HRC reviewed her application and provide the following comments:  

		(1)  She states she "was not notified or alerted that she would have to pay back her bonus pay,"  The MASP and ISP agreements she signed on 30 April 2013 each specifies the conditions of the agreement in section 3 stating "unearned Special Pay will be recouped by the Government on a pro-rated basis."

		(2)  She states that she "would have fought HRC to stay on active duty until 21 July 2014."  While she did inform her assignment officer that she would stay until 21 July 2014, she did not formally amend her UQR date either the 15 days before she received her orders with a 30 June 2014 separation date, or anytime afterwards.  

		(3)  She states she "was not told in July 2013 that she would have to pay back her bonus" (although she had signed her MASP and ISP on 30 April 2013). She was informed of this on 27 August 2013 and acknowledged as much on 3 September [2013]. 

	b.  It is HRC's opinion that the applicant pays back 21 days of unused bonus pay for the following reasons.  First, she was familiar with the MASP and ISP process and associated requirements as the documents she signed on 30 April 2013 were for the fourth consecutive year that she has executed MASP and ISP. Second, she acknowledged to her assignment officer via e-mail that she would need to stay until 21 July 2014 to fulfill her ADSO.  This occurred just 15 days prior to her receiving orders with a separation date 21 days short of her ADSO requirement.  There is no documentation of her trying to amend her separation date.  

13.  She responded to the advisory opinion on 28 September 2014.  She stated: 

	a.  She acknowledges the Board's (i.e., HRC's) decision regarding her request for her final active duty paycheck.  She is shocked at the egregious nature of the Board's (HRC's) decision (opinion).  It is quite clear to her that the substantive package of information she compiled and resent to this Board on 6 August 2014 and signed by an employee of the agency has not even been reviewed or considered in this decision.  Some salient key points of her subsequent packet are explained.  Her entry date was 18 July 2010, thus she is not short 21, but 17 days.  This requires an adjustment in her DD Form 214 and her pay. 

* There were three bonuses, the MASP, ISP, and CWSAB; but there is no mention of the CWSAB in the letter or the Board's decision; there is no payback language regarding the CWSAB in any of her contracts; this was clearly ignored in the advisory opinion 
* The MASP and ISP contracts clearly state dates of separation will not be approved if monies are owed; she questions why HRC approved her request 
* She asked to have the date of separation moved; she also questions why HRC did not comply
* She never had advocacy in her command, with the S-1 or her medical director to help with adjustments to orders; she even filed an inspector general complaint 
* she submitted legal documents and Army policies showing that she is due her final paycheck, clearly stating the reasons why and she included DFAS' service date calculation worksheet, revealing no deficits in time served
* she is appalled by how she is being treated by the Army; this decision has left her stunned and shocked; but, after the documented harassment/discrimination she endured over her 4 years of active duty she shouldn't be surprised

14.  The Assistant Secretary of Defense Memorandum, dated 27 October 2008, implements the CWSAB for Physician and Dental Specialties for Fiscal Year 2008.  The CWSAB is authorized to members who are graduates of an accredited school of medicine or osteopathy in a specialty listed on Table I and have a full and unrestricted license and be fully qualified to remain a licensed physician as determined by the Secretary of the military department (or designee) concerned in a specialty listed on Table I.  They must be fully qualified to hold an appointment as a commissioned officer and they must execute a written agreement to accept a commission as an officer of the MC of the Army as a medical officer to serve on active duty for a period of not less than four consecutive years.  Table I shows the Medical Specialty "Family Practice" is authorized a bonus of $252,000.00.

	a.  The CWSAB is under the authority of Title 37, U.S. Code, sections 302k and 3021, as added by section 617 of the National Defense Authorization Act for Fiscal Year 2007.

	b.  Repayment:  All participants in the CWSAB are required to sign a service agreement.  All service agreements must contain repayment language consistent with Section 303a(e) of Title 37, U.S. Code and be in accordance with the repayment policy guidance established by the Principal Deputy Under Secretary of Defense (Personnel and Readiness) policy memorandum, "Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends," dated May 21, 2008.  

15.  DOD 7000.14-R, FMR, Volume 7A governs the repayment of unearned bonuses and other benefits.  It states: 

	a.  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 "payor benefit"), is entitled to the full amount of the payor benefit if the member fulfills the conditions of that payor benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the payor benefit, then the payor benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the payor 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.

	b.  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 payor benefit is due to circumstances determined reasonably beyond the member's control.  Payment of any unpaid portion of the payor 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.  Repayment will not be sought and the Secretary of the Military Department concerned will not pay any remaining unpaid portion of a payor benefit under the following circumstances, unless the Secretary of the Military Department concerned makes a determination of the existence of other circumstances.  The Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a payor benefit is appropriate because it is contrary to a personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States.



DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted an appointment in the Regular Army and agreed to serve a total of 4 years, effective 2 August 2010.  However, she entered active duty on 22 July 2010.  She provides no evidence to show she entered active duty on 18 July 2010.  Her 4-year commitment would have ended on 21 July 2014.  In exchange for this commitment, she was eligible and received the CWSAB in the amount of $252,000, the annual MASP at the rate of $20,000, and the annual ISP at the rate of $15,000. 

2.  In July 2013, she voluntarily, willingly, and formally tendered her unqualified resignation from active duty and requested her separation date to be 30 June 2014.  Her chain of command concurred with her request.  Shortly before HRC approved her formal request, her assignment officer alerted her that she risked the loss of any unearned portion of her benefits.  Although she responded a few days later to her assignment officer and indicated her agreement to a later date of separation, she never formally submitted a request through her chain of command to the Retention and Separation Branch of a different date.  

3.  On 18 September 2013, Retention and Transition Branch, HRC, approved her request effective 30 June 2014 and indicated that this approval constitutes acceptance of a Reserve appointment.  She was honorably released from active duty on 30 June 2014 in accordance with Army Regulation 600-8-24 and she was transferred to the U.S. Army Reserve Control Group (Reinforcement). She completed 3 years, 11 months, and 9 days of active service.  

4.  Because she received the full CWSAB, MASP, and ISP benefits but did not serve the full committed number of years, she was subject to recoupment of the unearned portion of those benefits from 30 June 2014 to 21 July 2014.  Her finance officer advised her of the debt and provided a breakdown.  This debt was collected from her final pay.  It is a valid debt and there is no question that she received financial benefits for the unfulfilled portion of her 4-year commitment.  From a statutory and regulatory standpoint, there is neither an error nor an injustice.  

5.  She is not only requesting a waiver of a valid debt but also to extend her active duty service (DD Form 214) through 21 July 2014, which would essentially entitle her to additional active duty pay and allowances, also for a period that she did not serve.  

6.  From an equity standpoint, although she communicated her agreement to serve through 21 July 2014 to her assignment officer, she did not submit a formal request to change that date between September 2013, the date her separation was approved, and June 2014, the date she was separated and does not appear to have questioned at any time why the separation date has not been changed.  She claims to have filed an inspector general complaint but does not provide any findings.  Additionally, she was fully aware of the implications of her actions, especially after having previously executed multiple agreements that clearly spelled out the conditions for recoupment.  Allowing her to receive financial benefits for service that she did not serve is not only contrary to personnel policy, but also against equity and not in the best interest of the Army. 

7.  In view of the foregoing evidence, she 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 that 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)                                         AR20140012556



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ABCMR Record of Proceedings (cont)                                         AR20140012556



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