I BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006719 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006719 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 a debt resulting from being involuntarily separated 92 days prior to his expiration term of service (ETS) date. He also requests a personal appearance before the Board. 2. The applicant states in effect: * he paid off a previous debt to the Defense Finance and Accounting Service (DFAS); part of the amount owed was for time not served on active duty * he was discharged 90 days prior to his ETS under the involuntary early separation program; he either had to take an adjusted ETS date or reenlist for at least 2 years * his DD Form 214 (Certificate of Release or Discharge from Active Duty) states he completed his first full term of service * DFAS should refund him $3,584.91 because it was unjustly added to his debt 3. The applicant provides: * Letter from DFAS to the Honorable LZ, U.S. House of Representatives, dated 19 August 2015 * DFAS Form 67 (Military Pay and Allowance Voucher), dated 17 July 2016 * Memorandum, subject: Notification of Involuntary Separation, dated 10 April 2012 * Memorandum, subject: Change of ETS for [Applicant], dated 10 April 2012 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the New York Army National Guard (NYARNG) on 28 January 2005. He was discharged from the NYARNG on 27 January 2007. His NGB Form 22 (Report of Separation and Record of Service) shows in item 24 (Character of Service) his service was uncharacterized. This form also shows he served 2 years. 3. He enlisted in the Regular Army (RA) on 13 November 2008 for a 4-year term. In conjunction with his enlistment he completed DA Form 3286 (Statement for Enlistment U.S. Army Enlistment Program) showing he understood the following: a. Item 1 (Acknowledgement) he was enlisting for the following programs. * U.S. Army Training Enlistment Program * U.S. Army Incentive Enlistment Program (U.S. Army High Grad (Higrad) Bonus (Bachelor)) b. Item 2 (Associated Options) the bonus amount was $8,000.00 authorized by the Headquarters, Department of the Army (HQDA), enlisted incentive program, effective 3 June 2008. c. If his bonus contained monetary compensation for a Higrad or seasonal bonus, it would not be subject to recoupment as long as he remained in the Army and completed his first term of contracted service. 4. Following initial training he was assigned to Fort Campbell, KY, and served in Afghanistan from 18 October 2010 to 24 February 2011. 5. At the time of his involuntary separation he was assigned to Headquarters and Headquarters Company, 5th Battalion, 101st Combat Aviation Battalion, 101 Combat Aviation Brigade, 101st Airborne Division, Fort Campbell, KY. 6. On 10 April 2012, by memorandum, he was notified by his immediate commander: a. Pursuant to Military Personnel Message (MILPER) 09-279 (Enlisted Involuntary Separation Program). * he was being involuntarily separated 3 months prior to his contractual ETS date and his new ETS date would be 12 August 2012 * he was being separated under the provisions of paragraph 16-7 (Reduction in Force), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) * as part of his separation unearned portions of enlistment and reenlistment bonuses would not be recouped * he could request an exception to policy (ETP) and separate on his contractual ETS date; exceptions would only be considered for compassionate reasons * he could reenlist or extend for the deployment extension incentive pay (DEIP) * he signed the notification b. His ETS date was changed from 12 November 2012 to 12 August 2012 under the early involuntary separation program and he had chosen not to reenlist or extend in the RA. 7. He was honorably released from active duty on 12 August 2012 and transferred to the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 shows he completed 3 years and 9 months of net active service with 2 months and 12 days of prior active service and 3 years, 7 months, and 3 days of prior inactive service. It also shows: * Item 18 (Remarks) – "Member has completed first full term of service" * Item 23 (Type of Separation) – “Release from active duty” * Item 25 (Separation Authority) – “AR 635-200, [paragraph] 16-7” * Item 28 (Narrative Reason for Separation) – "Reduction in force" 8. On 26 April 2011, the applicant petitioned the ABCMR for debt remission for disenrollment from the Reserve Officers’ Training Corps (ROTC) program (he attended Hofstra University from 2005 to 2008). 9. On 26 September 2011, the Board recommended partial relief as follows: a. Amending his ROTC scholarship contract to show that he would satisfy a portion of the $64,930.00 ROTC debt under the original terms of the ROTC contract by successfully completing his current enlistment in the RA. b. The portion of the ROTC debt that would be satisfied by the above correction would be the total amount of the ROTC debt minus the $8,000.00 he received as an enlistment bonus. c. If he failed to complete the period of enlisted service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis in accordance with his DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract). 10. The applicant provides: a. Letter from DFAS to the Honorable LZ, U.S. House of Representatives, dated 19 August 2015, that states, in effect. (1) The applicant’s debt, in the amount of $64,930.00, was the result of his disenrollment from ROTC. He was required to repay the cost of the education benefits he received. They received his debt for collection on 4 September 2008 and notified him on 16 October 2008. His debt accrued $21,364.17 in interest, penalty charges and administrative fees (IPA). They received payments from him totaling $1,400.00 during 2009 and 2010 and an offset through the Treasury Offset Program (TOP) of $4,929.00 on 27 March 2015. This brought his balance to $79,965.17. (2) After his disenrollment, he enlisted in the RA for 4 years and received an enlistment bonus of $8,000.00. He subsequently applied to the ABCMR for relief of his ROTC debt based on his enlistment. The ABCMR granted relief of his ROTC debt in the amount of the total debt minus the $8,000.00 received as an enlistment bonus as long as he completed his full enlistment. If he did not complete his full enlistment, he would be required to repay his ROTC debt on a prorated basis. (3) Their office received a copy of the ABCMR decision, and on 10 November 2011, they sent him a letter with instructions to notify them when his term of service ended so that DFAS could make the required adjustments to his debt. When they did not receive any information from him at the end of his term of service, they were required to resume collection action. When payments were not received, his account accrued IPA fees and was reported to the credit bureaus, the TOP, and a private collection agency. (4) After receiving an inquiry, they determined the applicant’s term of service ended on 12 August 2012, which left 92 days of his enlistment unserved. Based on this, they have calculated the prorated monetary benefit due to him was $53,345.09, which was the amount of his debt, less the $8,000.00 bonus, less $3,584.91 for the 92 unserved days. b. DFAS Form 67, dated 17 July 2015, providing the details of his ROTC debt after the ABCMR proration for failing to complete his 4 year service obligation. REFERENCES: 1. AR 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Paragraph 16-7 states Soldiers may be separated prior to expiration of enlistment or fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the RA or Reserve Component (RC) active duty enlisted force to be reduced in number. 2. AR 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214. a. item 18, use this block for HQDA mandatory requirements. b. Mandatory entry: “Soldier (has) (has not) completed first full term of service,” this information assists the State in determining eligibility for unemployment compensation entitlement. c. To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in block 12c (Net Active Service this Period) of the DD Form 214. If the Soldier has completed or exceeded the initial enlistment, enter “has.” If item 12c of the DD Form 214 is less than the Soldier’s initial enlistment, enter “has not.” 3. MILPER message 09-279 states in pertinent part, the Army stated that active Army units deploying in support of a declared contingency operation on or after 1 January 2010 will not be subject to stop loss. Soldiers assigned to those units with an ETS during the scheduled deployment, who elect not to reenlist, are offered an incentive to extend to complete the deployment. Those Soldiers electing not to reenlist or extend are subject to the following rules. a. Soldiers who will have at least 6 months remaining in service prior to their ETS as of their unit’s latest arrival date (LAD) will deploy with the unit. These Soldiers will return to home station at least 60 days prior to ETS for transition processing and will separate on their ETS date. b. Soldiers who will have less than 6 months remaining in service on their unit’s LAD will not deploy with the unit. These Soldiers will be involuntarily separated from the Army up to 3 months prior to their contractual ETS date. 4. Department of Defense Financial Management Regulation 7000.14-R, volume 7A, chapter 2 establishes policy pertaining to the repayment of unearned portions of bonuses and other benefits. It states 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 is entitled to the full amount of the pay or benefit if the member fulfills the required conditions. Failure to fulfill the conditions specified in the written agreement may result in termination of the agreement and the member may be required to repay the unearned portion of the pay or benefit. Such repayment will be pursued unless the member’s failure to fulfill the specified conditions is due to circumstances determined reasonably beyond the member’s control. 5. A Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that debt repayment will not be required, if it is determined that such repayment would be contrary to personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States. 6. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record shows: a. The applicant enlisted in the RA on 13 November 2008 for 4 years. In conjunction with his enlistment, he entered into a contractual enlisted incentive program agreement entitling him to an $8,000.00 bonus. He also agreed it would not be subject to recoupment as long as he remained in the Army and completed his first term of contracted service. b. On 10 April 2012, the applicant was notified by memorandum by his commander that his ETS date was being involuntarily changed from 12 November 2012 to 12 August 2012, pursuant to MILPER Message 09-279 and under the provisions of paragraph 16-7 of AR 635-200. c. As part of his separation notification he was informed that the unearned portions of enlistment and reenlistment bonuses would not be recouped. He could request an ETP and separate on his contractual ETS date, but an ETP would only be considered for compassionate reasons. Additionally, he could reenlist or extend for the DEIP. He chose not to reenlist or extend in the RA. d. He had an initial debt of $64,930.00 as a result of disenrollment from ROTC. His debt accrued interest, penalties and administrative fees in the amount of $21,364.17. In 2009 and 2010, he paid $1,400.00 towards his debt and an offset through the TOP of $4,929.00 was applied to his debt. This brought his balance to $79,965.17. e. The ABCMR in Docket Number AR20110010919, as part of his ROTC debt cancellation determined/directed: (1) Amending his ROTC scholarship contract to show that he would satisfy a portion of the $64,930.00 ROTC debt under the original terms of the ROTC contract by successfully completing his current enlistment in the RA. (2) The portion of the ROTC debt that would be satisfied by the above correction would be the total amount of the ROTC debt minus the $8,000.00 he received as an enlistment bonus. (3) If he failed to complete the period of enlisted service obligated as a result of his amended ROTC scholarship contract either voluntarily or because of misconduct, his ROTC debt would be required to be recouped on a pro-rated basis. f. His term of service ended 12 August 2012, which left 92 days of his enlistment unserved and resulted in a prorated amount of $53,345.09. DFAS decreased his IPA proportionally. His current balance owed to DFAS is $9,061.98 ($64,930.00 + $3,806.07 IPA - $53,345.09 ABCMR payment - $6,329.00 in payments). 3. The applicant had an initial debt of $64,930.00 as a result of disenrollment from ROTC. He was aware as a result of the Board decision that his initial ROTC debt of $64,930.00 would be satisfied contingent upon successful completion of his entire contractual enlistment agreement in the RA. Subsequent to his enlistment, personnel policy changed, and this change put the applicant in the position of reenlisting or extending to deploy with his unit or be involuntarily released from active duty prior to reaching his ETS. After his involuntary release from active duty, DFAS determined that, because of his adjusted ETS date, he owed $3,584.91 for 92 unserved days, and amount to which fees and penalties were later added. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006719 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006719 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006719 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2