BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150012898 BOARD VOTE: ____X____ ____X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150012898 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing an exception to policy or an appropriate request for payment of an enlisted affiliation bonus was initiated and approved. The Defense Finance and Accounting Service (DFAS) should then pay him any monies due, and reimburse any monies collected as a result of the previous recoupment action. _____________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. BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150012898 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 records to show he was authorized an enlisted affiliation bonus (EAB), cancellation of the recoupment action levied against his pay record, and reimbursement of monies collected as a result of the recoupment of his EAB. 2. The applicant states, in effect, the following: a. An error was committed by the U.S. Army Reserve (USAR) in 2013 during his transfer to the Army National Guard (ARNG). His unit, the 226th Transportation Company at Westover Air Reserve Base (ARB), MA, was being deactivated and he was told to find another unit. b. He enlisted in the Connecticut Army National Guard (CTARNG) and was told by a recruiter that his bonus would not be affected. A few months into his enlistment, his bonus was terminated and recouped by the USAR. c. He had to transfer to the ARNG since his USAR unit was deactivating through no fault of his own. He has honorably served the Army for 9 years and this recoupment action has caused him financial hardship. He has solicited help from his chain of command and everywhere else but was finally told to submit an application to this Board. 3. The applicant provides the following documents, arranged chronologically: * DD Form 2807-1 (Report of Medical History), dated 15 December 2005 * DD Form 2808 (Report of Medical Examination), dated 15 December 2005 * Enlisted Record Brief, with a brief date of 27 January 2010 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 28 January 2010 * DA Form 3540-R (Certificate and Acknowledge of USAR Service Requirements and Methods of Fulfillment – Annex A), dated 28 January 2010 * Enlisted Affiliation Bonus Addendum, dated 28 January 2010 * DA Form 5261-4-R (Student Loan Repayment Program Addendum), dated 28 January 2010 * DA Form 5435-R (Statement of Understanding – The Selected Reserve Montgomery GI Bill), dated 28 January 2010 * DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 28 January 2010 * a memorandum to Commander, Headquarters and Headquarters Detachment (HHD), 382nd Military Police (MP) Battalion, Westover ARB, MA, dated 28 January 2010 * Army Reserve Deployment Stabilization Statement, dated 28 January 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 March 2010 * Orders 10-342-00023, issued by Headquarters, 99th Regional Support Command, Fort Dix, NJ on 8 December 2010 * Orders 12-199-00001, issued by Headquarters, 7th Civil Support Command, APO AE [Germany] on 17 July 2012 * DD Form 368 (Request for Conditional Release), dated 2 December 2012 * Permanent Orders F-177-001, issued by Headquarters, U.S. Army Reserve Command (USARC), Fort Bragg, NC on 26 June 2014 * a self-authored memorandum to an unknown addressee, subject: Exception to Policy for Bonus Payment, dated 2 March 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 24 January 2006. He completed his initial entry training and was awarded military occupational specialty (MOS) 91D (Power-Generation Equipment Repairer). 2. On 28 January 2010, he enlisted in the USAR for a period of 6 years. Section B (Agreements), paragraph b (Remarks), of his DD Form 4 contains the statement: "Reserve Component Enlistment per Army Regulation (AR) 601-280 [Army Retention Program], Chapter 7." 3. On 28 January 2010, he signed a DA Form 3540-R, which shows, in pertinent part, the following in: a. Section IV (Service Obligation), the applicant placed his initials in the box for line 2, "Enlistment of a Current Member of the Armed Forces (Except the USAR) with a Remaining Statutory Military Service Obligation." b. Section V (Method of Fulfillment), the applicant placed his initials in the box for line 2, "Enlistment/Reenlistment with Previous Service or Currently in Service." c. Section XII (Annual Orientation), paragraph 2 (Remarks), he was going to be assigned to HHD, 382d MP Battalion, Westover ARB, with assignment MOS of 91D. d. An EAB was authorized with a bonus control number assigned. e. The following statement was signed by the applicant: The effective date of my USAR enlistment or transfer is the day after my discharge or release from active duty (REFRAD). I understand that my contract will be voided if I reenlist or extend in the Regular Army or if I become ineligible as defined in AR 601-280, chapter 7, for enlistment or transfer on or before my discharge/REFRAD. I agree to keep my Career Counselor informed of any conditions that may change my eligibility for USAR service. f. The applicant and an enlisting official signed the document. 4. In conjunction with his enlistment, he signed an EAB Addendum, thus confirming he was eligible for an $8,000 EAB by affiliating with a USAR Selected Reserve troop program unit for 6 years in MOS 91D. a. He acknowledged he understood he would receive his bonus, less taxes, in installments in accordance with the Selected Reserve Incentive Program List. The initial bonus payment would be initiated by the gaining unit commander per published procedures on execution of the addendum and assignment to the selected reserve unit. b. In Section VII (Continuation of Benefits), he acknowledged he understood that if he was involuntarily transferred because of unit transition, his entitlement to bonus payments would continue. When the transfer requires a change in MOS, he must become MOS qualified within 36 months. Upon transfer between the USAR and the ARNG, the following rules would apply: (1) If, as a member of the USAR entitled to bonus payments under this program, he transfers to (enlists in) the ARNG because his USAR troop program unit has been reorganized, relocated, redesignated, inactivated, or converted, and provided he remains otherwise eligible, he would not terminate his entitlement and will retain his bonus payment(s) according to the schedule established with his USAR agreement. (2) If for any reason other than those above, he terminates his entitlement to bonus payments under this program unless the Director, ARNG, authorizes continued entitlement on enlistment in the ARNG. (3) He understood his entitlement to bonus payment(s) would continue if he moved to another Selected Reserve unit or MOS for normal career progression. (4) Section VIII (Termination) shows when entitlement to the affiliation bonus is terminated for a reason listed in paragraphs a through g, below, he may be subject to recoupment. Should he - (a) Become an unsatisfactory participant per AR 135-91 [Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures]. (b) Voluntarily move to a non-bonus unit or voluntarily reclassify into a non-bonus MOS. (c) Fail to become MOS qualified within 36 months when required to attend a service school, following an involuntary reassignment to a bonus authorized MOS and/r unit other than that of which he has contracted. (d) Accept a military technician or an AGR position where membership in a Reserve Component is a condition of employment, unless he has served at least 6 months of the bonus contract following receipt of the initial bonus payment. (e) Exceed the maximum period authorized for suspension during a period of non-availability. (f) Fail to extend his ARNG or USAR contracted term of service to compensate for a period of non-availability. (g) As a participant in the USAR Drill Sergeant Program, as an Instructor, or Linguist and voluntarily transfer to a position other than the position of which contracting. (h) The following concerns will be cause for termination; however, recoupment action will not be exercised: * unit transition, reduction of over strength, or reduction in force and reassignment is refused * acceptance of appointment as a commission officer or warrant officer after serving more than one year in a Selected Reserve unit under this agreement * death, injury, illness, or other impairment not the result of misconduct 5. He submitted a DA Form 5691-R, wherein he requested a Reserve Component assignment and agreed, upon his REFRAD, to be assigned to HHD, 382nd MP Battalion, Westover ARB, MA, in MOS 91D. His expiration term of service (ETS) was 29 March 2010. He and the Reserve Component Career Counselor (RCCC) both authenticated the form by signature on 28 January 2010. A memorandum from the RCCC explains his transfer to his new unit. 6. On 29 March 2010, he was honorably REFRAD by reason of the completion of his required period of active service. Upon his REFRAD, he was transferred to HHD, 382nd MP Battalion, Westover ARB, MA. His DD Form 214 shows he completed 4 years, 2 months, and 6 days of net active service. 7. Orders 10-342-00023, issued by Headquarters, 99th Regional Support Command, Fort Dix, NJ on 8 December 2010, reassigned him in the Reserve Component from the 382nd MP Battalion to the 406th HR Company, APO AE [Germany], by reason of "TPU (Troop Program Unit) to TPU Outside the Command," effective 7 January 2011. 8. Orders 12-199-00001, issued by Headquarters, 7th Civil Support Command, APO AE on 17 July 2012, reassigned him in the Reserve Component from the 406th HR Company to the 226th Transportation Company, ARB, MA, by reason of "TPU to TPU Outside the Command," effective 16 August 2012. 9. A DD Form 368 shows the applicant applied on 2 December 2012 to be released from the 226th Transportation Company in order to enlist in the CTARNG. This request was approved by the appropriate official on 18 February 2013. On 3 April 2013, he enlisted in the CTARNG for a period of 3 years. 10. On 31 October 2013, he was promoted to the rank of sergeant (SGT)/E-5. 11. A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows he extended his enlistment for two years, thereby establishing a new ETS date of 2 April 2018. He is currently serving with Company A, 192nd Engineer Battalion, Stratford, CT. 12. In the processing of this case, an advisory opinion was obtained on 23 November 2016 from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington DC. This official opined: a. The applicant requests to be reimbursed for recouped funds resulting from an Army Reserve recoupment action on an EAB. b. He affiliated from the Regular Army to the Army Reserve on 28 January 2010. He accepted a position in the HHD, 382nd MP Battalion, for an $8,000 EAB. He subsequently transferred on two separate occasions to different units within the Army Reserve: first to the 406th Human Resources Company on 8 December 2010, then to the 226th Transportation Company on 17 July 2012. c. The 226th Transportation Company received deactivation orders with an effective date of 15 September 2015, which led the applicant to seek a transfer to the CTARNG prior to that date. The transfer from the Army Reserve to the CTARNG was approved on 18 January 2013, and he enlisted into the CTARNG on 1 April 2013. d. Per Army Regulation 601-210 (Active and Reserve Components Enlistment Program), chapter 10-5 a (2), the Army Reserve should have terminated the EAB without recoupment, which would have allowed the CTARNG the option to continue payment of the EAB. Instead, the Army Reserve wrongly terminated the EAB with recoupment. This prevented the CTARNG from continuing the incentive and forced DFAS to initiate recoupment actions. e. This office recommends the applicant be reimbursed the recouped funds. 13. The advisory opinion was provided to the applicant on 28 November 2016, for informational purposes and to afford him the opportunity to provide rebuttal comments. He did not respond. 14. The applicant provides in support of his application: a. A document titled Army Reserve Deployment Stabilization Statement, dated 28 January 2010, which shows he would be stabilized with his unit (HHD, 382nd MP Battalion) from deployment for 24 months, unless he sooner volunteered. b. Permanent Orders F-177-001, dated 26 June 2014, shows the 226th Transportation Company, Westover ARB, MA, of the USAR was to be inactivated effective 15 September 2015. c. A self-authored memorandum to an unknown addressee, subject: Exception to Policy for Bonus Payment, dated 2 March 2015. This memorandum requested to retain his bonus payment due to the fact his unit was deactivating and he was told to find another unit. He enlisted into the CTARNG and was told by the recruiter that his bonus would not be affected. A few months into his enlistment, his bonus was recouped by the USAR. 15. A review of his record does not contain and he does not provide any documentation that addresses his bonus recoupment action. REFERENCES: 1. Department of Defense Instruction (DODI) Number 1205.21 implements the policies, assign responsibilities, and prescribe procedures for management of the Reserve components incentive programs. Paragraph 6.2 (Written Agreements) states each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member. 2. Department of Defense Financial Management Regulation (DODFMR), Volume 7A, regarding guidance, and compliance of all personnel in the administration of military pay states the Secretary of the Military Department concerned has the discretion to render a case-by-case determination that the member’s repayment of, or the Military Department’s full payment of an unpaid portion of, a pay or benefit is appropriate when not doing so is contrary to a personnel policy or management objective; against equity and good conscience; or contrary to the best interest of the United States. 3. Army Regulation 601-210 governs eligibility criteria, polices, and procedures for enlistment and processing of persons into the Regular Army, the Army Reserve, and ARNG for enlistment on or after the effective date of this regulation. Chapter 10 - Selected Reserve Incentive Program (SRIP), is approved annually and is subject to legal and DOD implications. The affiliation bonus is potentially available to any unit and skill in the ARNG and Army Reserve. a. A Soldier may be eligible for continued receipt of incentives when involuntary transfer between Army RC is due to unit transition. b. Incentive eligibility will be stopped when any of the termination reasons as listed below apply and that member shall not be eligible to receive any further incentive payments, except for Service performed before the termination date. Termination of eligibility to an incentive will occur, in pertinent part, if a Soldier voluntarily moves to a nonbonus unit of MOS. DISCUSSION: 1. The applicant requests correction of his records to show he was authorized an EAB, cancellation of the recoupment action levied against his pay record, and reimbursement of monies collected as a result of the recoupment of his EAB. 2. The available evidence confirms the applicant enlisted in the USAR for 6 years, in MOS 91D, for a vacant and valid position with HHD, 382nd MP Battalion. He further entered into a written agreement and established his eligibility for an EAB in the amount of $8,000. 3. The applicant subsequently transferred on two separate occasions to different units within the USAR, the 406th HR Company in December 2010 and the 226th Transportation Company in July 2012. It is not known if these moves were voluntary or involuntary or if they were moves into bonus or non-bonus units. 4. The applicant received notification that the 226th Transportation Company was deactivating, which allowed him to request a release and seek transfer. He was approved for transfer and he enlisted in the CTARNG on 1 April 2013. 5. In accordance with applicable regulations and his EAB Written Agreement, a Soldier may transfer between the USAR and ARNG when the Soldier's USAR TPU is being inactivated without termination of entitlement. It further states an affiliation bonus would be terminated and subject to recoupment if a Soldier voluntarily moves to a nonbonus unit or reclassifies into a nonbonus MOS. 6. The approved release and enlistment into the CTARNG was a result of a unit deactivation, and by regulation, the applicant was entitled to retain his eligibility to bonus entitlements. 7. The advisory opinion concludes the applicant should be allowed the reimbursement of recouped funds based on the fact that the USAR wrongfully terminated his EAB with recoupment, which did not allow the CTARNG to continue the incentive. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012898 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012898 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2