IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150001833 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 a debt established for recoupment of his separation and medical special pays. 2. The applicant states: a. He needs assistance in correcting what the Army owes him financially. b. He was recently honorably discharged from the Army on 1 December 2013 due to involuntary separation as a result of not being selected for promotion to lieutenant colonel a second time. c. He out-processed through Fort Sam Houston, TX. He met with personnel in the Defense Military Pay Office and was informed he would be receiving separation pay as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and he would also be reimbursed for 61.5 unused leave days (approximately $13,000.00). d. He was also informed he had a debt of $8,750.00 that would be deducted. His rough calculations indicated he was owed $106,000.00 ($115,000.00 minus $8,750.00 equals $106,000.00). e. After a month, he contacted the Fort Sam Houston Defense Military Pay Office and was informed that the Defense Finance and Accounting Service (DFAS) made significant changes to his case and he now owed $45,438.39. He was also told the Department of the Army Office of the Surgeon General (OTSG) was reclaiming prior physician Medical Corps bonuses paid to him. This means OTSG is collecting $45,438.39 over the $102,108.21 plus leave reimbursement amount. He contacted OTSG was told to petition this Board. f. It is his understanding that he would not have to repay any bonuses because he was involuntarily separated and he would be receiving separation pay at the rate for a major with 12 years and 5 months of service and payment for 61.5 unused leave days. When he signed his bonus agreements, he had every intention of fulfilling his obligation. He kept his part of the agreement and he worked for a portion of that time. He would have stayed longer if it hadn't been for the involuntary separation for non-promotion. g. He feels a significant financial miscalculation has occurred. 3. The applicant provides: * U.S. Army Human Resources Command (HRC) message, dated 30 August 2013, subject: Involuntary Discharge or Involuntary Transfer * Headquarters, U.S. Army North (5th Army), Orders 253-1104, dated 10 September 2013 * DD Form 214 * email correspondence, dated 6-10 January 2014 CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 20 May 1997. He was appointed as a captain in the Medical Corps on 8 June 2001 and ordered to active duty on 15 June 2001 in area of concentration 60J (gynecologist). He was promoted to major effective 15 June 2007. He served in Iraq from 1 October 2007 to 16 December 2008. 2. His records contain a Medical Additional Special Pay (MASP) contract for the amount of $15,000.00 effective 1 July 2013 to 1 July 2014, executed on 17 April 2013, with approval authorization. Paragraph 3 (Conditions of Agreement) states, in pertinent part, "I understand that: b. This agreement will be terminated upon my entry to internship, initial residency training, separation from active duty where directed by the U.S. Army, or death. f. In the event of termination under subparagraph b, c, or d above, unearned Special Pay will be recouped by the Government on a pro rata basis 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. (2) Separation from the military service by operation of law or regulations of DoD [Department of Defense] or the Army, when a waiver for recoupment has been approved by the Secretary of the Army." 3. On 1 December 2013, he was honorably discharged by reason of non-selection of permanent promotion. Item 18 (Remarks) of his DD Form 214 shows the following entries: * SEPARATION PAY -- $102,108.21 * MEMBER IS ENTITLED TO FULL INVOLUNTARY SEPARATION PAY 4. An advisory opinion was obtained from the Chief, Army Medical Department Special Pay Branch, OTSG, dated 26 February 2015. The advisory official states: a. Since the applicant was separated from the Army based on not meeting the management objective for promotion, he should have been selectively continued (SELCON) until such time as all obligations were satisfied. b. There is no indication he was offered or declined SELCON. If he declined SELCON, he would be liable for a prorated recoupment of the obligated period not served. c. It appears that at some point in this process, the Secretary of the Military Department (Army) did not waive the debt even though he had no choice but to separate. In turn, the debts established by DFAS for the unserved contractual period is based on the applicant's finance record at the time of separation and it appears DFAS audited the applicant's account, establishing a higher debt than when he was first counseled at separation. d. Pertinent references regarding recoupment of unearned payments in the applicant's case are: * Title 37, U.S. Code, chapter 5, section 303a(e)(1)(B) * Department of Defense Financial Management Regulation (DODFMR) 7000.14-R, volume 7A, chapter 2, paragraph 020304 * All Army Activities (ALARACT) Message 367/2010, dated 6 December 2010, subject: ALARACT Army Medical Corps Officer Special Pay Policy, Plan, and Rates * HRC message, dated 30 August 2013, subject: Involuntary Discharge or Involuntary Transfer 5. The OTSG advisory opinion was furnished to the applicant for comment. He did not respond. 6. An additional advisory opinion was obtained from the Chief, Officer Retirements and Separations Branch, HRC, dated 11 June 2015. The advisory official states: * the applicant (at the time of his twice non-selection for promotion to lieutenant colonel) was offered SELCON on 29 May 2013 * he declined SELCON on 28 August 2012 * he was not entitled to separation pay in accordance with Title 10, U.S. Code, section 1174(a)(4) 7. The HRC advisory opinion was furnished to the applicant for comment. He did not respond. 8. Title 10, U.S. Code, section 1174(a)(4) (Separation Pay upon Involuntary Discharge or Release from Active Duty), states an officer who is subject to discharge under any provision of chapter 36 of this title or under section 580 or 6383 of this title by reason of having twice failed of selection for promotion to the next higher grade is not entitled to separation pay under this section if that officer, after such second failure of selection for promotion, is selected for, and declines, continuation on active duty for a period that is equal to or more than the amount of service required to qualify the officer for retirement. 9. Title 37, U.S. Code, section 303a (Special pay: General Provisions), subparagraph (e)(1)(B) (Repayment of Unearned Portion of Bonuses and Other Benefits When Conditions of Pay Not Met; Termination of Entitlement to Unpaid Amounts), states the law allows the Secretary concerned to determine if there will be payback, specified in regulations, and to be administered by the Military Department. 10. DODFMR 7000.14-R, volume 7A, chapter 2, paragraph 020304 (Conditions under Review by Secretary of the Military Department and Rule 9), states the Secretary of the Military Department will determine any repayment not mentioned previously in the chapter on a case-by-case basis. 11. ALARACT 367/2010, dated 6 December 2010, subject: ALARACT Army Medical Corps Officer Special Pay Policy, Plan, and Rates, paragraph 19, indicates recoupment is waived when directed by the Army. 12. HRC message, dated 30 August 2013, subject: Involuntary Discharge or Involuntary Transfer, paragraph 4, states a waiver only applies to advanced educational assistance. DISCUSSION AND CONCLUSIONS: 1. The applicant requests relief from a debt established for recoupment of his separation and medical special pays. 2. The evidence confirms: * he executed an MASP contract for the amount of $15,000.00 effective 1 July 2013 to 1 July 2014 * he was twice non-selected for promotion to lieutenant colonel * he was offered SELCON, but he declined on 28 August 2013 * he was discharged from active duty on 1 December 2013 for twice non-selection for promotion to lieutenant colonel 3. Since his MASP contract clearly states the agreement would be terminated upon his separation from active duty and the unearned special pay would be recouped, he is not entitled to the unearned special pay. 4. The law states an officer who is subject to discharge by reason of having twice failed of selection for promotion to the next higher grade is not entitled to separation pay if that officer, after such second failure of selection for promotion, is selected for, and declines, continuation on active duty. 5. Since he declined SELCON, he is not entitled to separation pay and he is subject to recoupment of his unearned MASP. There is no error or injustice in this case. 6. Based on the foregoing evidence, there is no basis on which to grant 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) AR20150001833 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001833 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1