BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160001072 BOARD VOTE: _________ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160001072 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 he is exempt from recoupment of his reenlistment bonus based on an illness and returning to him any portion of the incentive that has 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. BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160001072 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, cancellation of his $5,000.00 reenlistment bonus debt. 2. The applicant states he had three overseas deployments. Upon his return, he felt overwhelmed and he needed some time to sort things out. When his time with the Army was going to end, a recruiter kept pressuring him to reenlist even though he told the recruiter that he was depressed and needed to see a doctor. He eventually sought treatment at the Department of Veterans Affairs (VA). He was prescribed medication, which he took. He states, "The Army always said when you need help, don’t be afraid to ask instead of [committing] suicide." He did not want to be a statistic so he did his part and he looked for help in his time of need. He took a break and then returned to finish his obligation with the Army. He feels that all of the training and advice given to him by the Army is useless because the Soldier does not seem to matter. He has a claim pending with the VA for post-traumatic stress disorder. 3. The applicant provides: * Defense Finance and Accounting Service (DFAS) letter, dated 22 December 2014, with Reserve/Guard Bonus Recoupment Worksheet and its enclosures * DFAS Summary Record and Hearing Decision, dated 27 October 2015 * VA Prescription History Information, dated 30 November 2015 * Self-authored statement, dated 1 December 2015. CONSIDERATION OF EVIDENCE: 1. With prior enlisted service in the United States Army Reserve (USAR), the applicant reenlisted in the USAR for 6 years on 30 April 2012. During his previous enlistment period he served in Iraq from 25 August 2006 to 19 August 2007 (11 months and 26 days) and in Kuwait from 18 July 2010 to 27 March 2011 (8 months and 10 days). These deployment periods are recorded on DD Forms 214 (Certificate of Release or Discharge from Active Duty) and filed in his official military personnel record. 2. At the time of his reenlistment he completed a DA Form 3540 (Certificate of Acknowledgment of USAR Service Requirements and Methods of Fulfillment). a. Section V (Method of Fulfillment) shows the applicant initialed that he was reenlisting with previous service or was currently in service and that under the terms of his reenlistment agreement he understood that if his reenlistment provides for service as an assigned member of a troop program unit of the Selected Reserve (SELRES), he would be required to satisfactorily participate as an assigned member of a troop program unit of the SELRES for the entire term of service stipulated on the reenlistment document unless sooner removed by proper authority. b. Section VI (Satisfactory Participation) shows the applicant indicated he would attend all scheduled unit training assemblies unless excused by proper authority. He further understood if he accrued nine or more unexcused absences during any continuous 365-day period, he would be declared an unsatisfactory participant. c. Section IX (Additions or Changes to this Certificate) shows the applicant initialed the block indicating that a USAR Reenlistment Bonus Written Agreement addendum had been completed, signed by him, and attached to the DA Form 3540. 3. The SELRES Incentive Program (SRIP) – USAR Reenlistment Bonus Written Agreement shows his military occupational specialty as 42A (Human Resource Specialist) and he was reenlisting in unit identification code W8CJAA that was approved for a bonus. a. Section IV (Obligation) states he was reenlisting for 6 years and that he understood and acknowledged he must serve the entire period in the SELRES satisfactorily as prescribed by Army regulations, unless excused for the convenience of the Government. b. Section V (Entitlement) states he was reenlisting for 6 years for a $10,000.00 bonus in accordance with the USAR SRIP list. Retaining the bonus once paid was contingent upon satisfactory participation in the SELRES and subject to current recoupment policy. He elected the three/six year lump sum option provided he met the qualifications of the contract at the time payment was requested. This bonus contract would be effective the date he signed it and his reenlistment contract. (This Agreement shows this option was for first term Soldiers only.) c. Section VII (Suspension) states a period of non-availability may be approved if he were to transfer to the Individual Ready Reserve for personal reasons for up to one year. d. Section VIII (Termination) he acknowledged that he understood his entitlement to the reenlistment bonus would be terminated and previous bonus payments may be subject to recoupment if he: (1) exceeded the maximum period of non-availability in accordance with Army Regulation 135-7 (Incentive Program), paragraph 1-15 with recoupment effective the date of transfer to the Individual Ready Reserve. (2) was an unsatisfactory participant per Army Regulation 135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment Participation Requirements) from his USAR bonus eligibility unit for any reason other than by death, injury, illness, or other impairment not the result of his own misconduct, then recoupment action would be initiated. 4. The applicant also completed a DA Form 5261-4-R (Student Loan Repayment Program Addendum) acknowledging he had previous military service, or was currently a member of the USAR, and was contracting to serve for 6 years in the SELRES. He understood he was contracting to serve in MOS 42A20 for which he was qualified and based on policy guidance he could receive a maximum of $10,000.00 toward student loan repayments. He initialed that he understood the terms of his agreement and that this incentive could be terminated if he separated from an enlisted status in the SELRES, for any reason, except for an authorized period of non-availability. 5. On 29 July 2014, Headquarters 81st Regional Support Command published Orders 14-201-00049 releasing the applicant from his unit and assigning him to the USAR Control Group (Reinforcement), effective 5 August 2014, due to personal reasons. 6. On 22 December 2014, the applicant was notified by DFAS that he was in debt to the United States Government in the amount of $5,122.00 which also included a debt for Servicemembers' Group Life Insurance (SGLI). The notification states that the debt was based on his date of separation on 4 August 2014. He was told that his debt was due to recoupment of the unearned portion of his Reserve or National Guard Bonus and that his unit reported he satisfactorily performed 18 months of his (reenlistment) contract. 7. On 1 April 2015, U.S. Army Human Resources Command Orders C-04-505012 was published releasing the applicant from the USAR Control Group (Reinforcement) and assigning him to 461st Human Resources Company, effective 13 March 2015. 8. In response to a hearing request, the applicant was notified by DFAS on 27 October 2015 that an administrative hearing was appropriate and the hearing was accomplished by reviewing his records to validate the debt for the purpose of administrative wage garnishment. DFAS stated: a. The results of the audit show the principal amount of the debt should be $5,000.00 vice $5,122.00 and that action was taken to adjust the fees in the Department of Defense Management System. (The debt for SGLI was cancelled.) b. Bonus recoupment is required when a member fails to satisfactorily complete the designated term of enlistment for which the bonus was paid unless the failure meets the conditions under which repayment will not be sought as set forth in the Department of Defense Financial Management Regulation (DoDFMR), Volume 7A, Chapter 56. c. The applicant enlisted in the USAR on 1 May 2012 for a period of 72 months with entitlement to a bonus in the amount of $10,000.00, of which he was paid $7,500.00. d. The applicant's bonus entitlement was terminated on 1 November 2013. He failed to serve 54 months of his reenlistment obligation. Recoupment of the unearned portion of the bonus in the amount of $5,000.00 was required by law. e. The applicant's claim that he does not owe the debt based on orders he submitted which released him from the Reserve and the orders that reassigned him to another unit do not invalidate the bonus debt. Moreover, the personnel action form he provided has no bearing on his debt because his bonus entitlement was terminated on 1 November 2013 due to unsatisfactory participation. f. The applicant failed to satisfactorily complete 54 months of his obligation for which the bonus was paid; therefore, recoupment is required. Applicable interest and fees were applied as the debt was delinquent. 9. The applicant provides his VA prescription history information which lists the prescriptions he was prescribed. The prescribed medications include citalopram hydrobromide initially prescribed on 19 February 2010 and again on 19 March 2010 and then fluoxetine hydrochloride prescribed from 20 January 2012 through 27 September 2014. These medications are antidepressants in the selective serotonin reuptake inhibitor class that works to balance the levels of serotonin in the brain. (He did not provide his military medical treatment records or a VA diagnosis and treatment record signed by a physician.) REFERENCES: 1. Department of Defense Instruction (DODI) 1205.21 (Reserve Components Incentive Programs Procedures) governs the Reserve Component incentive programs and provides procedural guidance. a. Paragraph 6.6 (Relief from Termination) states persons who move from one location to another may continue incentive eligibility if they remain in the SELRES of the same Military Department and are assigned to an incentive-eligible unit or incentive eligible critical skill. b. Paragraph 6.7 (Non-availability) states members of the Ready Reserve who incur a period of authorized non-availability (i.e. temporary overseas residence, missionary obligation, or overseas employment obligation, etc.,) shall have their incentive suspended. c. Paragraph 6.8 (Termination and Recoupment) states if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Unless granted relief, as covered in paragraphs 6.6 and 6.7, above, the member must refund a prorated amount to the Government, if such termination is for certain reasons. d. Paragraph 6.9 (Exception to Recoupment) states recoupment is not required in the certain circumstances when an incentive is terminated. These circumstances include death, injury or illness, or other impairment not the result of the member’s own misconduct. 2. DoDFMR, Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in: a. section 0201 (General provisions) 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 conditions of that pay or benefit. 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 0202. b. section 0202 (Repayment and non-repayment conditions) provides that, 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. In addition, 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 pay or benefit is appropriate based on one or more of the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States DISCUSSION: 1. After two deployments in support of Operation Iraqi Freedom, the applicant entered into a 6-year reenlistment bonus contract with the Government on 30 April 2012. The applicant failed to meet his reenlistment contractual obligation when according to DFAS records he was declared an unsatisfactory participant in November 2013. By orders he was released from his unit for cogent personal reasons on 5 August 2014 and transferred to the USAR Control Group (Reinforcement). Within one year on 13 March 2015 he was reassigned to a USAR unit. 2. According to the applicable regulation, a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus is entitled to the full amount of the bonus if the member fulfills the conditions of their contract. If the member fails to fulfill the service conditions specified in the written agreement for the bonus, then the bonus may be terminated and the member may be required to repay an amount equal to the unearned portion of the bonus. There are also provisions that allow for the Secretary concerned to render a case-by-case decision concerning repayment of a debt. Such a decision can be rendered through this Board. 3. While it is true the applicant failed to fulfill his reenlistment bonus contract, the evidence also suggests that after his first deployment in support of Operation Iraqi Freedom he sought medical treatment from the VA and was prescribed antidepressant medication. He then redeployed. Upon his release from his second overseas deployment, he again sought medical treatment from the VA and was prescribed antidepressant medication on 20 January 2012 through late 2014. There is a provision in the directive allowing for relief from recoupment of an incentive based on an illness. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001072 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001072 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2