IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150004151 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150004151 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief and to amend the decision of the ABCMR set forth in Docket Number AR20140012556 on 17 December 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing there was no collection action initiated against her and reimbursing her the monies paid in the amount of $5,016.67, as a result of the recoupment action prior to her separation date. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the entry or separation dates on her DD Form 214. __________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. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150004151 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision, as promulgated in Docket Number AR20140012556 on 17 December 2014. In effect, she requests: * forgiveness of her debt and reimbursement of monies previously collected in the amount of $5,016.67 * correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect an earlier date of entry on active duty 2. The applicant states, in effect, that: a. At no time did she request a different separation date on her DD Form 214. Her separation date of 30 June 2014 stands. Her service should be based on her basic active service date of 18 July 2010 and not 22 July 2010; therefore, providing her four additional days for which recoupment should not have been taken. b. After she was honorably discharged, her Branch Manager, Major (MAJ) L, did not know how to bring her back on active duty to reverse the debt and allow her to complete her service and reach her service obligation date of 21 July 2014. The U.S. Army Human Resources Command (HRC), in fact, acknowledged and admitted (in writing) their error in processing her release from active duty (REFRAD) as 30 June 2014 instead of 21 July 2014. c. She had originally based her departure date on the advice of her assignment officers when she inquired, via email, about the separation date she should submit prior to submitting her REFRAD packet back in June 2013. d. She worked with her assignment officers to adjust her departure date upon learning that should would have to stay on active duty until 21 July 2014 to complete her service obligation. She has been accused of not submitting a "formal" request for a change in her departure date from 30 June 2014 to 21 July 2014. However, she concurred with the email and was told by her assignment officer he would work to have it corrected. e. She should not be held liable for repayment of the Critical Wartime Skill Accession Bonus (CWSAB), since her contract did not contain any repayment language. f. Her Medical Special Pay (MASP) and Medical Corp (MC) Incentive Special Pay (ISP) documentation contains the following language: Requests for resignation, release form active duty or voluntary retirement to be effective during the term of this agreement will be disapproved except where considered to be in the best interests of the US Army, or for Reserve officers who qualify under the provisions of chapter 3, section IV (Hardship) AR (Army Regulation) 635-100 (Personnel Separations - Officer Personnel). g. She questions why the Army approved her REFRAD against their own contractual language. She followed the language in her contract and sought help from HRC to amend her date of separation and they admitted the error. HRC should be held culpable and not her. 3. The applicant provides a four page self-authored statement dated 22 February 2014 [2015]. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140012556 on 17 December 2014. 2. The applicant, in effect, provides a new argument that errors, omissions, inaccuracies, and misinterpretations occurred and records were disregarded during the review of her case; therefore, this new argument warrants consideration by this Board. 3. The applicant’s military record shows 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 in Family Practice and Osteopathic Manipulation Treatment in October 2008; her certification is valid through December 2016. 4. Orders A-07-019747, issued by HRC on 7 July 2010, ordered her to active duty as a Regular Army commissioned officer, effective 2 August 2010 in the rank of captain (CPT), for a minimum active duty obligation of 48 months. Her orders show eligibility for the CWSAB. 5. She entered active duty on 22 July 2010. She completed the Army Medical Department Basic Officer Leader Course from 30 August to 26 October 2010. 6. 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 service, from 22 July 2011 through 22 July 2012, in exchange for MASP in the amount of $15,000 * two agreements to serve one year of continuous active service, from 22 July 2011 through 22 July 2012, in exchange for ISP in the amount of $20,000 7. She was promoted to MAJ on 15 August 2012. She was assigned to the U.S. Army Health Clinic, Vilseck, Germany. 8. On 30 April 2013, she executed two agreements: a. An MASP agreement to serve one year of continuous active service effective 22 July 2013 in exchange for MASP in the amount of $15,000. She understood that a request for resignation during the period of this agreement would 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 would be recouped by the Government on a prorated basis unless separation was due to death or disability, or by operation of law (with an approved waiver). b. An ISP agreement to serve one year of continuous active service effective 22 July 2013 in exchange for ISP in the amount of $20,000. She understood that a request for resignation during the period of this agreement would 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 would be recouped by the Government on a prorated basis unless separation was due to death or disability, or by operation of law (with an approved waiver). 9. 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 an appointment as a Reserve commissioned officer upon release from active duty. 10. On 18 September 2013, HRC approved her request effective 30 June 2014 and indicated their approval of her request constituted her acceptance of a Reserve appointment. 11. She was honorably released from active duty on 30 June 2014 in accordance with Army Regulation 600-8-24, paragraph 2-7, and she was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete her remaining service obligation. She completed 3 years, 11 months, and 9 days of active service. 12. Her June 2014 Leave and Earnings Statement (LES) shows a debt in the amount of $5,061.67, consisting of recoupment of MASP and ISP in the amount of $2,041.67 and recoupment of CWSAB in the amount of $2,975.00, for the period 1 July through 22 July 2014 (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 the already-received mid-month pay: * ISP, $20,000 per year, recoup $1,166.67 * MASP, $15,000 per year, recoup $875 * CWSAB, $63,000 per year, recoup $2,975 13. She provides a series of emails, from the original ABCMR Docket Number AR20140012556, with her assignment officer: a. An email dated 27 August 2013, from her branch assignments officer at HRC 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 the 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. An email dated 27 August 2013, from her branch assignments officer at HRC 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 (UQR) request packet and he needed a response from her soon. c. An email dated 27 August 2013, from the unit G-1 to the applicant. d. An email dated 3 September 2013, from applicant to the medical commands' G-1 and her assignments officer, indicating 21 July 2014 was fine, but not later than that date. She also stated she was on leave and could not respond to the 27 August 2013 email. e. An email dated 3 September 2013, from her assignments officer at HRC, indicating he would push her email to the branch chief with her UQR action with the updated separation date of 21 July 2014. f. An email dated 14 July 2014, from her assignments officer at HRC, indicating he acknowledged she requested her separation date be changed to 21 July 2104 on 3 September 2013 and he did not know why it was not changed. Since she was already out-processed he was not certain how to fix it locally and get her back on active duty with a new separation date. g. An email dated 31 July 2014, from her assignments officer at HRC, indicating the Retention and Separation Branch informed him they could not adjust her separation date because she was no longer on active duty. 14. From the original ABCMR Docket Number AR20140012556, an advisory opinion was received from HRC on 2 September 2014, wherein the advisory official recommended disapproval of the applicant's request based on the lack of a formal request to change her separation date. She responded to the advisory opinion on 28 September 2014; she disagreed with HRC, she reiterated the details concerning HRC's approval of her request, and she challenged the validity of her CWSAB debt. 15. The Defense Finance and Accounting Services (DFAS) confirmed the applicant did have a recoupment action in the amount of $5,016.67 that was collected from her prior to separation. REFERENCES: 1. 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. 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. 2. 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. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges), prescribes policies and procedures governing the transfer and discharge of Army officer personnel. Chapter 3 prescribes the task, rules, and steps for processing voluntary resignations. It states, in pertinent part, that any officer of the Active Army may tender a resignation under provisions of this chapter. The date of separation, as specified or directed, will not be changed without prior approval of Headquarters Department of the Army nor can valid separation orders be revoked subsequent to the specified or directed date of separation. 4. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a summary of the Soldier’s most recent period of continuous active service. It provides a brief, clear-cut record or all current active, prior active, and prior inactive service at the time of REFRAD, retirement, or discharge. DISCUSSION: 1. The applicant's request for forgiveness of her debt and reimbursement of monies previously collected in the amount of $5,016.67, and correction of her DD Form 214 to reflect an earlier date of entry on active duty, was carefully considered. 2. The evidence shows the applicant accepted an appointment in the Regular Army effective 2 August 2010, wherein she agreed to serve a total of 4 years. Her DD Form 214 shows she entered active duty on 22 July 2010. There is no evidence in her record, nor does she provide any, that shows she entered active duty on 18 July 2010 or any other date. Thus, given her entry date of 22 July 2010, her active duty commitment would have ended on 21 July 2014. 3. As a medical officer, she was eligible for a number of incentive payments and bonuses. She received the CWSAB in the amount of $252,000, the annual MASP at the rate of $15,000, and the annual ISP at the rate of $20,000. 4. In July 2013, she voluntarily tendered her UQR from active duty; with her request, she also requested a separation date of 30 June 2014. She contends the date was a collaboration between her and her assignments officer before she submitted her UQR packet. On 27 August 2013, her assignments officer informed her that she had a service obligation until 21 July 2014 and requested that she concur with the change of her active duty separation date to 21 July 2014 or later. 5. The applicant contends that she was on leave and did not get to respond to her assignment officer's email until 3 September 2013 (a mere 7 days later) in which she concurred with changing her separation date to 21 July 2014 but not any later. 6. On 18 September 2013, Retention and Transition Branch, HRC, approved her request with a separate date of 30 June 2014 and indicated that this approval constituted her acceptance of a Reserve appointment. She was honorably released from active duty on 30 June 2014 in accordance with Army Regulation 600-8-24. She was transferred to the U.S. Army Reserve Control Group (Reinforcement). She completed 3 years, 11 months, and 9 days of active service. 7. Prior to separation, evidence shows she communicated with her assignments officer, to alleviate the debt and inquire as to why her separation date had not been changed. 8. The evidence shows on 3 September 2013 she communicated an agreement to serve through 21 July 2014 with her assignments officer. The advisory official opined that no formal request was submitted to change her separation date. However, email communication between the applicant and government officials (her assignments officer and the medical command's G-1) concurring to change her separation date would constitute an official formal request. It would seem reasonable that HRC could have issued a change to the separation date since the request was approximately nine months earlier. 9. Therefore, based on the aforementioned, from an equity and good conscience standpoint, had her separation date been changed to 21 July 2014, as she and her assignments officer agreed upon, she would not have accrued a recoupment action in the amount of $5,016.67 that was collected from her prior to separation. 10. There is no evidence and the applicant has not provided evidence that would justify correcting her DD Form 214 to reflect an earlier date of entry on active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004151 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004151 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2