IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150012545 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: 4 August 2016 DOCKET NUMBER: AR20150012545 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: 4 August 2016 DOCKET NUMBER: AR20150012545 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 correction of his military service records to show cancellation/remission of a debt for an enlistment bonus (EB). 2. The applicant states he enlisted in the West Virginia (WV) Army National Guard (ARNG). At the time, his records were reviewed by officials at the Military Entrance Processing Station and his command. He was informed his Pay Entry Basic Date (PEBD) was 12 September 1991 and that he qualified for an EB. He inquired several times about the accuracy of the PEBD, but his inquiries were always dismissed by Army officials. a. He transferred to the Kentucky ARNG (KYARNG) in 2007. He was later separated for medical reasons and an audit was conducted of his pay account. He was informed that he provided false information and violated Federal law during his enlistment, and action was initiated to recoup the entire EB amount. b. He states that he still has the funds he received from the EB and he is able to pay it back; however, officials cannot tell him where to send the money. In addition, he now has children and repaying the EB amount would cause an adverse financial impact on funding their college education. c. He concludes that he did not tell Army officials what his PEBD was; Army officials established the PEBD. In addition, he did not choose to get out of the ARNG and he should not be held responsible for the mistake of Army officials. 3. The applicant provides no additional documentary evidence. 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 U.S. Marine Corps Reserve on 12 March 1987. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty in the U.S. Marine Corps on 1 December 1987 and he was honorably discharged on 5 December 1996. He had completed 9 years and 5 days of net active service this period and 8 months and 19 days of total prior inactive service. 4. He had a break in military service from 6 December 1996 through 8 January 1998. 5. A DD Form 214 shows the applicant entered active duty in the Regular Army (RA) on 9 January 1998 and he was honorably discharged on 8 January 2001. He had completed 3 years of net active service this period; 9 years and 5 days of total prior active service; and 1 year, 9 months, and 22 days of total prior inactive service. 6. A Naval Reserve Center – Annual Retirement Point Record shows the applicant had creditable (inactive) service from 31 July 2001 to 30 July 2002. It also shows he earned 90 total qualifying points and 1 year of qualifying service. 7. An NGB Form 22 (Report of Separation and Record of Service) shows the applicant entered the Michigan ARNG (MIARNG) on 13 September 2002 and he was honorably discharged on 26 March 2003. He had completed 6 months and 14 days of net service this period; 1 year, 10 months, and 1 day of prior reserve component service; 12 years and 5 days of prior active federal service; 14 years, 4 months, and 20 days of total service for pay; and 14 years, 6 months, and 20 days of total service for retired pay. 8. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S. Naval Reserve (USNR) on 27 March 2003 for a period of 2 years. 9. A DFAS [Defense Finance and Accounting Service] Form 702 (Leave and Earnings Statement (LES)), dated 29 December 2006, based on his U.S. Armed Forces reserve service shows the applicant's PEBD as 7 November 1988 and that he had 18 years of service. 10. A DD Form 4 shows the applicant enlisted in the ARNG of the United States (ARNGUS) and the WVARNG on 28 December 2006 for a period of 6 years. Item 7 (Previous Military Service Upon Enlistment/Reenlistment) shows in: * block a (Total Active Military Service): 12 years, 0 months, 5 days * block b (Total Inactive Military Service): 4 years, 4 months, 15 days a. NGB Form 21 (Annex A – DD Form 4, Enlistment/Reenlistment Agreement ARNG), dated 28 December 2006, shows the applicant acknowledged enlistment/reenlistment as a prior service member having no remaining statutory military service obligation and that he would undergo training in military occupational specialty (MOS) 92G (Food Service Specialist). The applicant and the recruiting and retention noncommissioned officer (NCO) each placed their signature on the document. b. NGB Form 600-7-6-R-E (Annex X to DD Form 4, Prior Service Enlistment Bonus (PSEB) Addendum – ARNGUS) shows he acknowledged (with either his initials or his signature) in: * Section II (Eligibility), "I have completed not more than 16 years of total military service." * Section III (Bonus Amount and Payments), "For a 6-year enlistment I will receive a total bonus in the amount of $15,000, to be paid in two 50% installments of $7,500 less taxes. The first 50% installment will be processed for payment upon enlistment if I am already MOS qualified for the positon for which I am enlisting. If I am not MOS qualified for the position for which I am enlisting, my first installment of 50% will be processed upon successful completion of MOS training. The second and final 50% installment will be processed for payment on the 36-month anniversary of the date of enlistment." * Section VII (Statement of Understanding), "I have read this addendum in its entirety. I understand all of the above statements concerning my enlistment bonus. I understand that this addendum will be void if I do not meet all of the requirements. No other promises have been made to me in connection with this enlistment bonus addendum." * Section VIII (Authentication) and Section IX (Certification by Service Representative) the applicant and enlisting official (Chief Warrant Officer Two K___ J. S____) signed the document on 28 December 2006; it also shows Bonus Control Number "PS069120109WV" 11. Joint Forces Headquarters, WV, Adjutant's General's Department, Charleston, WV, Orders 126-607, dated 6 May 2007, show the applicant was duty position qualified in duty MOS 92G3O (Senior First Cook) on 11 April 2007. 12. An NGB Form 22-5-R-E (Addendum to DD Form 4) shows the applicant voluntarily transferred interstate to the KYARNG with continued membership in the ARNGUS and as a Reserve of the Army on 22 June 2007. 13. Department of Military Affairs, Frankfort, KY, letter, dated 28 June 2010, subject: Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15 Year Letter), shows the G1, KYARNG, notified the applicant that his eligibility for retired pay had been established upon attaining age 60. 14. A NGB Form 22 shows the applicant enlisted on 28 December 2006, was honorably separated from the KYARNG on 28 June 2011 due to being medically unfit for retention, and transferred to the USAR Control Group (Retired Reserve). He completed 4 years, 6 months, and 1 day of net service this period; 5 years, 4 months, and 27 days of prior reserve component service; 12 years and 5 days of prior active federal service; 21 years, 11 months, and 3 days of total service for pay; and 19 years, 7 months, and 22 days of total service for retired pay. 15. The applicant's letter in support of his request for exception to policy (ETP), dated 24 April 2014, in pertinent part, shows: * "Everyone approved my Bonus. At no time was my delayed entry time ever mentioned to be part of the time. (I'm pretty sure that even with my delayed entry time I was not over 14 years, I should of only [have] had about 13 years at that time.) At no time did I ever try to defraud the government in any way." * He acknowledged that he received: * $5,921.51 from the WVARNG (Gross pay: $7,901.80 ($401.80 basic pay plus $7,500.00 installment of PSEB) less $1,904.99 federal taxes, $30.74 FICA, $15.56 state taxes, and $29.00 SGLI), 16 February 2007 * $5,625.00 from the WVARNG ($7,500.00 installment of PSEB less $1,875.00 federal taxes), 13 March 2007 * $5,312.31 from the KYARNG ($7,500.00 installment of PSEB less $1,875.00 federal taxes, $300.00 state taxes, and $12.69 debt payment), 13 January 2010 * "As for matter #2, over 16 years of service, I am sending you copies of both of my LES's, I only had and was getting paid for 15 years of service. There was no fraud or false statement made by me, I would like this to be considered over. No violation of contract was made by myself. My LES is proof that I was under 16 [years] of service at the time in question." 16. National Guard Bureau (NGB), Arlington, VA, memorandum, dated 8 April 2015, subject: Request for ETP for PSEB for [Applicant], shows the applicant's request to retain the $15,000.00 PSEB was denied because he exceeded the authorized time in service requirement for the incentive, which violated ARNG Selected Reserve Incentive Program (SRIP) 07-01. He also received an erroneous installment of the incentive which requires recoupment. 17. Headquarters, KYARNG, Frankfort, KY, memorandum, dated 17 April 2015, subject: Notification of Incentive Discrepancy and ETP Process, shows the Education and Incentives NCO notified the applicant of the determination made with respect to his request for ETP. The State Incentives Manager also provided the applicant her contact information (i.e., mailing and email addresses, and telephone number) in the event he had any questions regarding the matter. REFERENCES: Department of Defense, Financial Management Regulation 7000.14-R, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay) governs active duty and reserve military pay. Chapter 56 (Selected Reserve Accession, Affiliation, Enlistment, and Reenlistment Bonuses) establishes policy guidance pertaining to the accession, affiliation, enlistment, and retention bonuses for members of the Ready Reserve. Paragraph 5605 (PSEB), subparagraph 560503 (Eligibility requirements), shows a bonus may only be paid under this section to a person who meets each of the specified requirements that include, in pertinent part, "the person has no more than 16 years of total military service." DISCUSSION: 1. The applicant contends that his debt for an PSEB should be cancelled/ remitted because he did not provide false information during the enlistment process, ARNG officials erred in the determination that he qualified for the PSEB, and repaying the PSEB would cause an adverse financial impact on him. 2. The evidence of record shows the applicant had prior honorable military service in several branches of service, including the USMC, RA, MIARNG, and USNR, during the period 12 March 1987 through 27 December 2006. An LES issued at the conclusion of his service with the USNR in December 2006 shows he was credited with 18 years of service. 3. Records show the applicant enlisted in the ARNGUS and the WVARNG on 28 December 2006 for a PSEB in the amount of $15,000.00 payable in two equal installments (i.e., 50% upon completion of training or qualification in MOS and 50% upon the 36-month anniversary of the date of enlistment). a. The DD Form 4 that the applicant signed shows he had completed more than 16 years of military service at the time of his enlistment in the WVARNG. b. The PSEB Addendum the applicant signed shows he certified with his initials, "I have completed not more than 16 years of total military service." The addendum also shows he certified that he understood that all of the statements concerning his PSEB and that the addendum would be void if he did not meet all of the requirements. c. It appears the enlisting official erred in the processing of the applicant's PSEB; however, this is not the overriding issue in this case. 4. The evidence of record shows the applicant was not eligible for the PSEB and that he improperly contracted for a $15,000.00 PSEB based on erroneous and/or false information pertaining to his years of military service. a. The applicant acknowledged he received three separate PSEB payments; each installment in the (gross) amount of $7,500.00 (i.e., on 16 February 2007, 13 March 2007, and 13 January 2010). This amounts to a total payment of a $22,500.00 PSEB; an overpayment of $7,500.00. b. There is no evidence of record that shows the applicant notified Army officials of the second (unauthorized) payment he received in March 2007. 5. On 17 April 2015, the KYARNG State Incentives Manager provided the applicant contact information in the event he had any questions regarding the matter, including any questions he may have on where he should remit payment related to the PSEB debt. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012545 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012545 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2