IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150010814 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150010814 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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150010814 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, in effect, correction of his military service records, payment of all compensation he is due, and an upgrade of his general, under honorable conditions discharge. 2. The applicant states he served in the U.S. Army Reserve (USAR) from 4 May 2007 until 19 April 2010. a. He entered initial active duty for training (IADT) for basic combat training (BCT) at Fort Leonard Wood, MO. He did not receive his initial (direct-deposit) paycheck. He asked his drill sergeant about the matter and was told to inquire at his USAR unit. This same situation occurred when he was at advanced individual training (AIT) at Fort Huachuca, AZ. b. When he returned to his Troop Program Unit (TPU) he was placed in an "active status." He continued to inquire into his past-due pay matters; however, nobody in his chain of command resolved the issue. Despite his continued inquiries, the matter went unresolved for three years. c. He states that he was never paid for the following: * Enlistment Bonus (EB) – $4,000 * Higher Education Bonus – $7,000 * Montgomery GI Bill (MGIB) Kicker – $100/month * BCT – $16,990 * AIT – $5,522 * One Year of Active Duty – $20,388 * Basic Allowance for Subsistence – $387/month * Basic Allowance for Housing – $890/month * Uniform Allowance – $300/year * Medical/Dental care – [unspecified amount] * E-4 Pay – $3,240 (1 year and 6 months of drill time) d. He states that he fulfilled the terms of his contract, but he was not compensated. He has suffered hardship and the non-receipt of his USAR pay has tainted his reputation. In addition, he was not able to find employment as an intelligence analyst. He states he is entitled to the compensation with interest (compounded) for the entire term of his 8-year contract. Compensation should also include: * Post 9/11 GI Bill (100% = 60 months) * living allowance (100%) * living expense stipend (100%) * Student Loan Repayment Program (SLRP) – $22,000 * retraining as an intelligence analyst – [unspecified amount] * monies borrowed related to court appearances – [unspecified amount] * child support arrearage – $16,000 * Arizona child support lawyer fee (loan) – $3,500 * arrearage loan - $5,000 * flight to Michigan – $1,000 (Roundtrip) * car rental - $2,000 * food – $774 (2-month stay) * gas – $320 (2-month stay) * clothes for climate/weather change – $100 (September- November) * government-issue identification card with authorized use of military installation facilities 3. The applicant provides a self-authored statement (summarized above). COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's military pay records, payment to the applicant of all compensation he is due, and an upgrade of his general, under honorable conditions discharge. 2. Counsel states the applicant enlisted in the USAR on 4 May 2007 with a contractual, 8-year military statutory obligation (MSO). He was entitled to specific compensation, including base pay, allotments, and bonuses; however, he never received any compensation. a. Counsel states the applicant's enlistment contract included a one-time MGIB Kicker in the amount of $100; Non-Prior Service (NPS) EB in the amount of $7,000, half of which was due upon completion of his IADT and qualification in the military occupational specialty (MOS), 25% due upon the second anniversary of his term of service, and the final 25% due upon the fourth anniversary of his term of service; the Higher Education Bonus in the amount of $4,000; and SLRP in the amount of $20,000. In addition, the applicant was forced to expend monies for uniforms ($300 per annum), housing ($890 per month), and food ($387 per month). b. The failure to compensate the applicant resulted in significant financial hardship, including his inability to pay child support obligations that resulted in him facing jail time. This, in turn, caused him to hire an attorney in his defense against the charges. In addition, he was required to borrow money to pay for these financial obligations. c. Counsel states the applicant repeatedly inquired into matters pertaining to his pay and allowances through his chain of command while attending IADT, but he was never provided any explanation or remedy. He also inquired into matters relating to his pay when he returned to his TPU, but he still was unable to obtain any results. d. On 19 April 2010, he was discharged from the USAR with a general, under honorable conditions discharge. He was also reduced to the rank of private (PV1)/pay grade E-1 based on failure to complete training, unsatisfactory participation, and voluntary reduction. e. Counsel asserts that, notwithstanding the 3-year statutory limitation for filing, the applicant's petition should be approved based on the egregious failure of the USAR to compensate him for his service. In addition, the terms of his contract required him to serve in the capacity and for the term delineated in the contract. The applicant performed his portion of the contract; however, the USAR did not perform its portion (i.e., military pay records show the USAR failed to pay the applicant). Based on the USAR's failure to perform its responsibilities under the terms of the contract, the applicant's conduct (which formed the USAR's basis for his discharge and the characterization of his service) must be excused. 3. Counsel provides copies of the applicant's USAR Annex to his enlistment contract and Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement (LES) History. 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. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the USAR on 4 May 2007 with an 8-year MSO in the grade of E-4 and a 6-year USAR active status obligation. Section B (Agreements), Remarks, is blank (no entries). The annexes show a: * Certificate and Acknowledgment USAR – Service Requirements and Methods of Fulfillment Annex. * Section IV (Service Obligation) shows the applicant acknowledged his enlistment in the USAR with an 8-year MSO that consisted of a 6-year assignment as a member of a TPU in the Selected Reserve and a 2-year obligation as a member of the Individual Ready Reserve. He enlisted for assignment to Company A, 301st Military Intelligence (MI) Battalion, Phoenix, AZ and the – * Standard Training Program with – * BCT at Fort Leonard Wood, MO * AIT in MOS 35F1O (Intelligence Analyst) at Fort Huachuca, AZ * the following programs and/or incentives: * MGIB Kicker $100 * NPS EB $7,000 * Higher Education Bonus $4,000 (4-Year College Degree or Higher) * Section V (Satisfactory Participation), in pertinent part, shows the applicant acknowledged that he understood that as a member of the USAR he must participate satisfactorily during the entire period of his enlistment with the rules and regulations then in effect, or which may thereafter be placed in effect, by the property authority. * Selected Reserve Incentive Program – EB Annex: * Section III (Assignment): Assignment in MOS 35F1O, Company A, 301st MI Battalion, Phoenix, AZ * Section IV (Obligation): 6 years in the USAR in a bonus unit or in a bonus MOS * Section V (Entitlement): NPS EB in the amount of $11,000 payable, as follows: $4,000 related to his education level; initial payment of 50% of the total authorized EB amount after completing IADT and qualifying in the MOS; the remaining unpaid portion of the NPS EB paid in two subsequent payments of 25% of the total bonus amount paid upon successful completion of the 2nd and 4th year of the enlistment term of service. * Section VII (Termination): My entitlement to the EB will be terminated should I become an unsatisfactory participant. * SLRP Annex: * Section III (Acknowledgement): 6 years concurrent contractual obligation and an MSO of 8 years * IADT and qualification in MOS 35F1O * Maximum of $20,000 in loan repayments * Section VII (Termination): My entitlement to loan repayment under the SLRP will be terminated should I become an unsatisfactory participant. * Statement of Understanding – The MGIB Selected Reserve Annex: * Section III (Qualification): Serve at least 6 years in the USAR, complete IADT, and not be an unsatisfactory participant * Section VII (Termination): Entitlement to educational assistance will be terminated should I be declared an unsatisfactory participant. 3. MI Readiness Command, Fort Belvoir, VA, Orders 10-110-00005, dated 20 April 2010, reduced the applicant from specialist (SPC)/pay grade E-4 to PV1 (E-1), effective and with a date of rank of 19 April 2010. The authority cited was Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-16, 10-17, and 10-18. 4. MI Readiness Command, Fort Belvoir, VA, Orders 10-110-00006, dated 20 April 2010, discharged the applicant from the USAR with a general under honorable conditions discharge effective 19 April 2010. The authority cited was AR 135-178 (Enlisted Administrative Separations). 5. In support of the application counsel provide copies of the applicant's DFAS LES History spanning the period 1 May 2008 to 30 April 2010. The documents show he enlisted in the USAR on 4 May 2007, his debt began on 23 May 2007, and continued through 24 March 2010 with a total unpaid debt balance of $973.00. 6. An advisory opinion was obtained from the Chief, Manning Division, USAR Command (USARC), Fort Bragg, NC. a. The advisory official stated that based on the evidence in the applicant's case, he is not entitled to receive payment or reimbursement for the specified enlistment incentives. b. The advisory official noted that the applicant's petition claims he was due payment for the $4,000 Higher Education Bonus, $7,000 NPS EB, $20,000 SLRP, and $100 MGIB Kicker. In order to receive payment of these incentives, Army policy required that he complete IADT. c. Records show that his reservation for IADT was cancelled because he declined to ship. Additionally, the Army Reserve (AR) G-1, Initial Military Training Branch, contacted the Reception Battalion, Fort Leonard Wood, MO, and confirmed that the applicant never reported for IADT as specified under the terms of his contract. d. The AR G-1 also recommends disapproval of the applicant's petition because there is no evidence to support his claim. 7. On 3 May 2016, the applicant was provided a copy of the USARC advisory opinion to allow him the opportunity (30 days) to submit comments or rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 600-8-19, in effect at the time, prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. Chapter 10 (Reductions in Grade) shows in: a. paragraph 10-16 (Reduction for failure to complete training), Soldiers appointed to higher grades on entering or while attending a service or civilian school and fail to complete the course successfully may be reduced to a grade no lower than the one held on entry to the course; b. paragraph 10-17 (Reduction for unsatisfactory participation), reductions are discretionary and wholly apart from discharge proceedings under AR 135-178, chapter 13 (Unsatisfactory participation in the Ready Reserve). A Soldier may be reduced one grade for unsatisfactory participation. Corporals or specialists (E-4) and below may be reduced without action by a board; and c. paragraph 10-18 (Failure to complete or attend Noncommissioned Officers Education System (NCOES)), Soldiers who fail to successfully complete, fail to remain eligible to be scheduled for or attend, who are denied enrollment in, or who do not attend their scheduled NCOES class (through fault of the Soldier) will be administratively reduced or removed from the promotion list. Soldiers will only be reduced when NCOES is required for his/her current grade. 2. AR 135-178, in effect at the time, establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the USAR. a. Chapter 13 shows: (1) a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: * the Soldier is an unsatisfactory participant * attempts to have the Soldier respond or comply with orders or correspondence have resulted in – * the Soldier's verbal or written refusal to comply with the orders or correspondence * a second notice, sent by certified mail, was refused, unclaimed, or otherwise undelivered * verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed (2) The characterization of service normally will be under other than honorable conditions, but characterization as general, under honorable conditions may be warranted. b. Chapter 2 (Guidelines on separation and characterization), paragraph 2-9 (Characterization of service), shows an honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1 The applicant contends his military pay records should be corrected with payment of all compensation he is due (as outlined in his petition), and upgrade of his general, under honorable conditions discharge. 2. The Board decides each case on the evidence of record and begins its consideration of the case with the presumption of administrative regularity. The Board is not an investigative agency and the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Records show the applicant enlisted in the USAR on 4 May 2007 with an 8-year MSO and a 6-year service obligation in the Selected Reserve. a. He enlisted for: * assignment to Company A, 301st MI Battalion * the Standard Training Program with – * BCT at Fort Leonard Wood, MO * AIT in MOS 35F1O at Fort Huachuca, AZ * the following programs and/or incentives: * MGIB Kicker $100 * NPS EB $7,000 * Higher Education Bonus $4,000 * SLRP $20,000 b. The annexes associated with the applicant's enlistment contract consistently show the applicant acknowledged that to be eligible for the programs and incentives he must participate satisfactorily and comply with the rules and regulations in effect during the entire period of his service obligation. 4. There is no evidence of record and the applicant provides insufficient evidence to show that he attended BCT at Fort Leonard Wood, MO; AIT at Fort Huachuca, AZ; or that he successfully completed BCT and AIT and was awarded MOS 35H1O. a. The evidence of record shows the applicant did not report for IADT as specified under the terms of his contract. b. The pay records the applicant provides show he incurred debt that began on 23 May 2007. It is reasonable to conclude the applicant's failure to attend IADT and his unsatisfactory participation in the Ready Reserve were the bases of his pay-related issues and debt. c. The available evidence fails to show the applicant took action to rectify any pay-related issues with DFAS. 5. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. a. The evidence of record shows the applicant was reduced to PV1 (E-1) and discharged on 19 April 2010 based on unsatisfactory participation in the Ready Reserve. b. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate. 6. Based on the evidence of record, the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant upgrade of his general, under honorable conditions discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010814 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010814 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2