ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160016527


APPLICANT REQUESTS: 

* reversal of the recoupment of his warrant officer critical skills accession bonus of $20,000.00
* correction of his record to show he was awarded full or half separation pay
* a personal hearing before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Memorandum, Subject: Special Forces Warrant Officer Critical Skills Accession Bonus Program Pertaining to the applicant, dated 31 July 2014
* Memorandum, Subject: Probationary Officer Elimination Case for the applicant, dated 19 February 2016
* Defense Finance and Accounting Service (DFAS), Letter, dated 9 May 2016
* Orders Number 153-020, dated 1 June 2016
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 24 March 2016 and 15 June 2017
* Army National Guard Annual Statement, dated 5 July 2017
* Written Agreement Appointment Bonus

FACTS:

1.  The applicant essentially states,

* his bonus is not subject to recoupment
* on 28 July 2014, he signed a bonus agreement which entitled him to receive a $20,000.00 bonus to be paid after completion of the warrant officer basic course
* he is currently serving as a Special Forces (SF) warrant officer in the Rhode Island Army National Guard (RIARNG) and this service ensures his eligibility for the bonus and fulfills his obligation as outlined in the contract
* the written agreement states recoupment of the bonus shall be waived if termination was for death, injury, illness, or other impairment, not the result of his own misconduct, he was not separated for misconduct, rather for failure to prepare an adequate family care plan
* he is entitled to receive either full or half separation pay pursuant to Department of Defense Instructions (DODI) 7000.14-R (DOD Financial Management Regulation)

2.  A review of the applicant’s service record shows the following on:

* 16 June 2005 – enlisted in the Regular Army and served in various stateside and overseas assignments
* 21 May 2014 – honorably discharged from active duty by reason of accepting a commission or warrant in the Army; DD Form 214 shows he completed 8 years, 11 months, and 6 days of net active service for this period of service 
* 22 May 2014 – appointed as a Reserve warrant officer and executed an oath of office
* 6 Jan 2014 – 22 May 2014 – attended and completed the SF Warrant Officer Technical and Tactical Certification Course 
* 31 July 2014 – the U.S. Army Human Resources Command, Chief, Incentive Pay Branch, approved the applicant for the $20,000.00 warrant officer critical skills accession bonus, he would incur a 6 year Active Duty Service Obligation (ASDSO)
* 24 March 2016 – honorably discharged from active duty by reason of substandard performance; DD Form 214 shows in item 18 (Remarks) “regular reenlistment bonus paid $20,000.00
* 26 May 2016 – appointed as a warrant officer in the RIARNG
* his record is void of any addendums that would provide the details of methods of fulfillment of his contractual obligations

3.  The applicant provides:

* Memorandum, Subject: Probationary Officer Elimination Case for the applicant, wherein the Deputy Assistant Secretary of the Army (Review Boards) determined the applicant would be eliminated from the U.S. Army for substandard performance, and also directed the recoupment of his bonus
* DFAS, letter of indebtedness, showing he had a debt of $9,194.40 for the unearned portion of his bonus and his separation code of JHK and he was obligated to perform duty through 21 May 2020
* Orders Number 153-020, showing he was appointed as a warrant officer in the RIARNG, effective 26 May 2016
* DD Form 214, showing he was honorably released from active duty and returned to his ARNG unit in Military Occupational Specialty (MOS) 180A (SF Warrant Officer)
* ARNG annual statement, showing he had 11 years, 9 months, and 29 days creditable service for retirement pay
* Written Agreement Appointment Bonus showing the following:

* he would serve on active duty satisfactorily, in the designated MOS for a period of 6 years
* he would receive an accession bonus of $20,000.00 to be paid upon him satisfactorily completing the appropriate warrant officer basic course, including military qualification as a 180A
* he understood recoupment would occur if he failed to maintain MOS qualification, separate or retire from active duty for any reason other than by death, injury, illness, or other impairment, not the result of his own misconduct
* the amount to be recouped would be computed based upon the number of months he served satisfactorily for the term in which his bonus was paid

4.  On 15 March 2018, the Office of the Deputy Chief of Staff, G-1 reviewed the applicant's records and rendered an advisory opinion in his case.  After a thorough review, the Chief, Compensation and Entitlements Division opined that:

	a.  The applicant was not entitled to separation pay upon discharge from active duty on 24 March 2016.  In accordance with DODI 1332.29, (Involuntary Separation Pay (ISP) (Non-Disability)), paragraph 3.2.3.1, in effect at the time, officers separated for substandard performance with Separation Program Code (SPD) JHK were ineligible for separation pay.  The DOD SPD codes table links SPD codes to certain entitlements including ISP.  Additionally, the bonus recoupment is appropriate and the Army G-1 recommends disapproval since the applicant did not fulfill the contractual obligation.

	b.  Since the inception of separation pay, only enlisted service members were authorized ISP when the discharge or release from active duty was for parenthood. The Army G-1 believed this was an inequity and petitioned the Office of the Secretary of Defense to revise the separation pay DODI to compensate eligible officers similar to enlisted when separated for parenthood.  

	c.  Effective 3 March 2017, the revised DODI 1332.29 now allows the Services to
compensate officers separated due to “parent or custody of minor child" with one half separation payment level.

	d.  DFAS is correct in establishing a debt to recoup the unearned portion of the $20,000.00 bonus paid based on the applicant's inability to fulfill the service obligation agreed to even though the discharge was not for misconduct.  The misconduct the applicant eluded to on DD Form 149 in justifying no recoupment, refers to (death, illness, or other impairment) as documented in HRC memorandum, dated 31 July 2014 and not the narrative reason for separation from the Army.

5.  The applicant was provided with a copy of the advisory opinion to provide a response.  He did not respond. 
6.  Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) paragraph 1-16 states individuals who fail to complete their military service obligations (Active Army and Reserve Component) are subject to recoupment.

7.  DODI 1332.29 ISP (Non-Disability) states half payment of non-disability ISP, is authorized to Service members of the Active and Reserve Components who are involuntarily separated from Active Duty (AD) who are separated and are denied reenlistment or continuation by the Military Service concerned due to parental or custody of minor child.

8.  AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  Based upon the terms of the written warrant officer appointment bonus showing he would receive a $20,000 accession bonus, if he would serve on active duty satisfactorily for 6 years and that did not occur, the Board concluded that recoupment of the accession was appropriate.  For that reason, the Board recommended denying that portion of the request.
Additionally, based upon the advisory opinion from G1 stating IAW DODI 1332.29, officers separated for substandard performance not being eligible for separation pay, the Board recommended denying that portion of the request. 

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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.


REFERENCES:

1.  AR 600-8-24 (Officer Transfers and Discharges) paragraph 1-16 states individuals who fail to complete their military service obligations (Active Army and Reserve Component) are subject to recoupment.  This must be accomplished prior to the separation of an individual who has not fulfilled the ADSO incurred as a result of participation in the advanced education program in accordance with applicable laws and regulations. 

2.  DODI 1332.29 ISP (Non-Disability) states half payment of non-disability ISP, is authorized to Service members of the Active and Reserve Components who are involuntarily separated from Active Duty (AD) who meet each of the five conditions in the following paragraphs.

* the Service member has completed at least 6 years, but fewer than 20 years, of AD
* the Service member’s separation is characterized as honorable
* the Service member is not fully qualified for retention and is denied reenlistment or continuation by the Military Service concerned due to parental or custody of minor child
* the Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve
* the Service member has signed a disclosure statement, acknowledging if the Service member later becomes eligible for retired or retainer pay and/or disability compensation from the Department of Veterans Affairs, the full amount of ISP received will be deducted from such pay
3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that 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.

ABCMR Record of Proceedings (cont)	AR20160016527
0

5


1