IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20150013451 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: 15 December 2016 DOCKET NUMBER: AR20150013451 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: 15 December 2016 DOCKET NUMBER: AR20150013451 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 an exception to policy (ETP) to retain her Reenlistment/Extension Bonus (REB) in the amount of $10,000.00. 2. The applicant states she was denied her REB because she didn't have a passing Army physical fitness test (APFT) within 18 months of her reenlistment and her Bonus Addendum had unauthorized pen and ink changes. She was a Soldier on the Southwest Border mission and during her first year on the mission there was a disconnect between the S-1 on the mission and her backup unit personnel specialist at home. Her APFT was not sent back to her home state for input. Through no fault of her own, the backup for her retention noncommissioned officer (RNCO) was not up to date with retention information and misinformed her on what to initial in her reenlistment packet. The RNCO had her white out said blocks and submitted the paperwork as is. 3. The applicant provides: * DA Form 705 (APFT Scorecard) * DA Form 5501 (Body Fat Content Worksheet (Female)), dated 19 December 2012 * a memorandum, dated 11 September 2014, from the National Guard Bureau (NGB) for the Louisiana Army National Guard (LAAARNG), subject: Request for ETP for REB for the applicant * a memorandum, dated 16 September 2014, from Joint Forces Headquarters, Louisiana, Office of the Adjutant General for the applicant 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. On 4 December 2007, the applicant enlisted in the LAARNG for 6 years. 3. A DA Form 705 indicates the applicant passed a record APFT on 19 December 2012. 4. DA Form 5501, dated 19 December 2012, indicated the applicant was in compliance with Army standards. 5. On 1 August 2013, the applicant extended in the LAARNG for 6 years. She signed an NGB Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836, REB Addendum, Army National Guard (ARNG of the United States). a. She initialed paragraph 16, Section II – Eligibility, indicating she agreed to reenlist/extend for the obligation period below. (1) She initialed paragraph 16a indicating she was reenlisting/extending Duty Military Occupational Specialty Qualified (DMOSQ) in MOS "blank" only for 3 years. (2) She initialed paragraph 16b indicating she was reenlisting/extending DMOSQ in MOS "15P" only for 6 years. b. She initialed paragraph 1b, Section III - Bonus Amount and Payments, indicating she was reenlisting/extending for 6 years and would receive a total bonus in the amount of $10,000.00. Her bonus was to be processed in two installments. The first 50 percent (%) payment was to be processed for payment the day after her current expiration of term of service (ETS). The second 50% payment was to be processed on the fourth year anniversary. c. She initialed paragraph 1, Section VI – Termination, indicating she could be terminated from REB eligibility with recoupment for any of the reasons listed in paragraphs 1a - 1s. Paragraph 1h states her REB eligibility could be terminated if she had two consecutive record APFT failures and/or two consecutive failures to meet body fat standards within the contract term. The termination date would be effective on the date of her second APFT failure or second failure to meet body fat standards. 6. DA Forms 705 show the following APFT results for the applicant: * 13 November 2013 - passed record APFT * 15 December 2014 - passed record APFT * 8 November 2015 - record "no go" APFT * 9 January 2016 - record "no go" APFT * 15 October 2016 - record "no go" APFT 7. A memorandum, dated 11 September 2014, from the NGB for LAAARNG, subject: Request for ETP for REB for the applicant, denied the applicant's request to retain her $10,000.00 REB for the following reasons: a. The applicant did not meet eligibility requirements in accordance with regulatory guidance which violated ARNG Selected Reserve Incentive Program (SRIP) Policy for fiscal year (FY) 2013 (Policy Number 13-01) effective 1 January 2013. She did not meet reenlistment/extension requirements in accordance with NGB-ARH 09-026, Table 1 (Authorized periods of extension) Rule J because she did not have a passing APFT within 18 months of her ETS. b. The applicant's contract/bonus addendum had unauthorized pen and ink changes which violates ARNG SRIP 13-01 8. A memorandum, dated 8 July 2016, from NGB for LAARNG, subject: Second Review Request for ETP for REB for the applicant disapproved an ETP to retain the applicant's REB for the following reasons: a. The applicant failed two consecutive record APFTs which violated Army Regulation (AR) 601-210, paragraph 10-6b. b. She erroneously selected multiple options on the incentive addendum in violation of ARNG SRIP 13-01. c. Her contract/bonus addendum had unauthorized use of white out in violation of ARNG SRIP 13-01. 9. DA Form 5501, dated 15 October 2016, indicated the applicant was in compliance with Army standards. REFERENCES: 1. Department of Defense Financial Management Regulation 7000.14, Volume 7A provides for repayment of unearned portions of bonuses and other benefits. Section 020101 states a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus is entitled to the full amount of the pay or benefit if the member fulfills the condition of that pay or benefit. If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit. 2. NGB-ARH Policy Memorandum 09-026 Table 1, Rule J applied to Soldiers otherwise eligible to extend or immediately reenlist, but who failed to take or pass last APFT within 18 months before ETS. 3. ARNG SRIP Policy Number 13-01, effective 1 January 2013, states in paragraph 12a(1) that a Soldier reenlisting/extending cannot contract for more than one SRIP incentive during an extension period. a. Paragraph 22 states if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the service member's (SM) written agreement/addendum, the SM shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Unless granted relief, through an ETP, the member must refund a prorate amount to the government if such termination is for any of the reasons listed in the subparagraphs. b. Paragraph 22i lists a Soldier with contracts executed after 1 March 2009 and who receives two consecutive record APFT failures and/or two consecutive failures to meet body fat standards within the contract term. The effective date of termination is the date of the second APFT failure or second failure to meet body fat standards. 4. AR 350-1 (Army Training and Leader Development), Appendix G (Army Training Programs), paragraph G–9m(6), states Soldiers who fail a record APFT for the first time or fail to take a record APFT within the required period will be flagged. In the event of a record test failure, commanders may allow Soldiers to retake the test as soon as the Soldier and the commander feel the Soldier is ready. Soldiers without a medical profile will be retested no later than 90 days following the initial APFT failure. Reserve Component Soldiers not on active duty and without a medical profile will be tested no later than 180 days following the initial APFT failure. 5. AR 601-210 (Active and Reserve Components Enlistment Program) states in paragraph 10-6b that repeat APFT failures or failure to meet body fat standard within a one-year period will result in the suspension of an incentive. Two consecutive APFT or body fat standard failures will result in the termination of an incentive. DISCUSSION: 1. The memorandum, dated 11 September 2014, from NGB denied an ETP to retain the applicant's REB. NGB indicated the applicant did not have a passing APFT with 18 months of her ETS. Her ETS at that time was 3 August 2013. A DA Form 705 showed she passed an APFT on 19 December 2012. A DA Form 5501, dated 19 December 2012, showed she was in compliance with Army standards. 2. The memorandum, dated 11 September 2014, from NGB also indicated the applicant's contract/bonus addendum had unauthorized pen and ink changes which violated ARNG SRIP 13-01. Any pen and ink changes to her addendum are not discernible on the document located in her official military personnel file (OMPF) on the integrated Personnel Electronic Records Management System (iPERMS). 3. The memorandum, date 8 July 2016, from NGB supersedes the ETP denial dated 11 September 2014. The memorandum, dated 8 July 2016, disapproved the applicant's request for ETP to retain her $10,000.00 REB because she had failed two consecutive For Record APFTs which violates AR 601-210, paragraph 10-6b. DA Forms 705 showed the applicant failed record APFTs on 8 November 2015, on 9 January 2016, and on 15 October 2016. 4. ARNG SRIP Policy Number 13-01, effective 1 January 2013, states the effective date of termination is the date of the second APFT failure or second failure to meet body fat standards. 5. The memorandum, dated 8 July 2016, from NGB stated the applicant erroneously selected multiple options on the incentive addendum in violation of ARNG SRIP 13-01. a. She initialed paragraph 16a indicating an extension in MOS "blank" only for 3 years. This paragraph is invalid in that the MOS is not identified. b. She initialed paragraph 16b indicating an extension in MOS 15P only for 6 years. This option is valid in that the MOS is shown. 6. The memorandum, dated 8 July 2016, from NGB stated the applicant's contract/bonus addendum had unauthorized use of white out which violates ARNG SRIP 13-01. Any use of white out on her addendum is not discernible on the document located in her OMPF on the iPERMS. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013451 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013451 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2