The final decision for the Secretary of the Army will be made by the Deputy Assistant Secretary of the Army for Review Boards (DASA) within the Office of the Assistant Secretary of the Army for Manpower & Reserve Affairs. I do not know the identity of the current DASA, as the position has seen quite a bit of turnover and a series of career SES folks as the acting DASA. The DASA will be made aware of the recommendations of your chain of command and HRC, and will be provided with a summary and analysis of the case by a member of his or her staff, with a recommended action.
Although not provided for in either AR 600-8-24 or AR 635-40, there is nothing to prevent you from submitting a letter or memorandum to the DASA for his or her consideration in which you can explain why you took the actions you did with regard to the training, particularly based on medical advice, and why it is in the interests of justice for the DASA to approve your medical separation or retirement consistent with the IDES process rather than an administrative elimination. Part of that argument can address the punitive and unfair nature of elimination and the likely recoupment of educational costs will have on you, when compared to the mental health issues leading to the situation. Without you raising this issue at this time, the DASA may not factor in the likelihood of a recoupment action in his or her decision making. Although you can certainly send such a letter through your chain of command or HRC, and doing so with a copy is a good idea, sending it directly to the DASA’s office is the safest way to ensure that it may be considered. Keep a record of sending the letter and its receipt.
The final separation decision is one committed to the complete discretion of the DASA and there are no standards or factors that constrain the DASA’s exercise of that discretion beyond the general requirement that the DASA make the decision in writing on the administrative record before him or her. The only administrative appeal from the DASA’s decision would be through an application to the Army Board for Correction of Military Records. Absent some prejudicial error in the way your case was processed, the likelihood of a successful outcome with the ABCMR is remote. The ABCMR will not grant relief based solely on the fact that you disagree with the outcome or thought it was unfair. Similarly, absent some prejudicial error in the processing of your case, judicial review at either the U.S. Court of Federal Claims or a United States district court is unlikely to result in a favorable outcome, due to the complete discretion the DASA has and the deference the courts show to substantive military personnel decisions. Here is how the United States Court of Appeals for the Federal Circuit explained it in Wagner v. United States, 365 F.3d 1358, 1364-65 (Fed. Cir. 2004) in an analogous situation involving the Secretary of the Army’s discretionary authority regarding referral of officers to DA Active Duty Boards:
“… had the Army complied with its regulation and the Secretary exercised his discretion, the Secretary’s determination would have been unreviewable by any court. See Sargisson, 913 F.2d at 921–22 (explaining that a fully discretionary decision by the Secretary of the Air Force was “beyond the ken of judicial competence”); Voge, 844 F.2d at 779–81 (declining to review a discretionary decision by the Secretary of the Navy as nonjusticiable). While we may, as we do here, review the DAADB proceedings for compliance with Army regulations, we may not engage in the substantive review of the Secretary’s discretionary decision—or lack thereof—necessary to determine whether the procedural error was harmless.”
Assuming you have a written agreement with the Army regarding the terms and conditions of your education and training and your potential liability to reimburse the government for educational costs if you do not meet the graduation or other professional requirements related to that education, a recoupment action is likely if you are administratively separated rather than medically separated or retired. Ultimately, DFAS is simply the collection agency once the Department of the Army (it used to be the DCSA G-1, but may be different in your case) approves the recoupment action. Although there are provisions to seek waiver of the debt, DFAS will not agree to those as DFAS exercises no independent authority or discretion in such debt collection matters. Absent payment, the Department of Justice will file a lawsuit to obtain a judgment for the amount of the debt.
