IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150013975 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 IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150013975 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 was granted authorizing him to retain the $15,000 Selected Reserve Incentive Program reenlistment/extension bonus and cancelling recoupment action related to the $30,000 bonus payment he received. Any and all funds recouped as payment of the debt should be returned to the applicant. _____________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: 7 February 2017 DOCKET NUMBER: AR20150013975 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, an exception to policy to retain a Selected Reserve Incentive Program (SRIP) reenlistment/extension bonus (REB) that he contracted for in April 2006 and to waive his REB debt of $30,000. 2. The applicant, a member of the California Army National Guard (CAARNG), states he was mobilized and serving in Iraq in April 2006. He was serving as a Special Forces Senior Weapons Sergeant in military occupational specialty 18B. He was assigned to an active duty unit. a. He received notification from his active component personnel officer that he was eligible to receive a REB in the amount of $30,000, if he reenlisted/extended while in a combat zone. Accordingly, he extended his enlistment for 6 years. During this enlistment period, he completed a second deployment to Iraq where he sustained multiple injuries from improvised explosive devices (IEDs) including a traumatic brain injury (TBI). He received the Purple Heart for his wounds. He received a $15,000 bonus. His personnel officer informed him since he was on active duty, he would receive an additional $15,000 bonus payment. He received a total of $30,000. b. On 4 January 2013, he received written notification from the CAARNG Incentives Task Force informing him he did not meet the eligibility requirements for the 2006 calendar year REB because he had more than 20 years of time in service on the date he extended his enlistment contract. In addition, he was overpaid $15,000 because the REB for Reserve Component Soldiers was limited to $15,000. He was told because of the erroneous REB payment he would have to pay it back. c. The applicant appealed the recoupment action stating, in effect, that he did not know he was not eligible for the REB. He trusted his active component personnel officer and reenlistment noncommissioned officer (NCO). He presumed they knew their job, and had correctly calculated and prepared the REB documents. He contests the statement that he had more than 20 years of service because he was erroneously transferred to the U. S. Army Control Group Individual Ready Reserve (IRR) when he was discharged in 1987. In effect, he asserts he had completed his military service statutory obligation. If he had not been transferred to the IRR, he would have 17 years' time in service. Therefore, he would remain eligible for the REB. d. His request for an exception to policy was denied. The REB recoupment will be financially devastating to his family. He completed his 6-year enlistment extension in good faith, sustained injuries in combat and received the Purple Heart. 3 The applicant provides: * personal statement to his Army Board for Correction of Military Records (ABCMR) application * Purple Heart Certificate * CAARNG appeal denial letter dated 4 August 2015 * Soldier Incentive Assistance Center (SAIC) REB audit packet 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 served in the Regular Army from 30 January 1979 to 15 June 1987 (8 years, 6 months, and 15 days) and was honorably discharged as a staff sergeant (SSG). He was transferred to the IRR. 3. On 26 April 1999, the applicant enlisted in the CAARNG for 3 years in a Special Forces military occupational specialty. He was promoted to sergeant first class (SFC) in 2003. He continued his enlistment in the CAARNG. He was ordered to active duty on 19 November 2005 and deployed to Iraq where he served with the 1st Special Forces Group (active component). 4. On 11 April 2006 he signed a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) extending his enlistment. This established his new expiration of term of service (ETS) as 4 December 2012. With his enlistment extension, he signed an Annex R (REB Addendum for ARNG) to DA Form 4836. He acknowledged he had less than 18 years of total military service at his current expiration date of service (4 December 2006) and was currently mobilized and serving in a designated combat zone within 12 months of his original ETS date. He initialed this annex indicating he would receive a bonus in the amount of $15,000. A commissioned officer authenticated this form. A bonus control number was assigned to the contract. However, there is no verification from a State Incentive Manager noted on the annex. 5. On 22 October 2006, he was honorably released from active duty. His DD Form 214 shows he served in Iraq and Kuwait from 16 January to 31 August 2006. Item 12 (Record of Service) shows: * 12c (Net Active Service this Period) – 11 months and 4 days * 12d (Total Prior Active Service) – 9 years, 3 months, and 6 days * 12e (Total Prior Inactive Service) – 6 years, 5 months, and 5 days 6. The applicant was mobilized on 21 May 2007 and was released from active duty on 1 October 2008. He served in Iraq. On 29 March 2008, he was wounded in action and received the Purple Heart. 7. On 16 October 2012, the CAARNG notified the applicant he had a debt of $30,000 for an erroneous REB. He received the REB in violation of Title 37, U.S. Code (USC), section 308(b) and Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) Number 06-05. The supporting addendum shows the applicant had more than 20 years' time in service and was paid more than the legal limit of $15,000 (Reserve Component). He was advised of the appeal process. 8. On 20 October 2011 the applicant was promoted to master sergeant (MSG). 9. By memorandum the applicant appealed the debt. He stated his personnel officer told him his was authorized the $30,000 REB because he was serving on active duty. He disagreed with the statement he had more than 20 years' time in service. He suffers from combat incurred TBI and requested recoupment action be postponed because it would be a financial hardship on his family. He requested the assistance of counsel. 10. On 15 March 2013 the applicant was again mobilized and deployed to Afghanistan. On 26 December 2013 he was honorably released from active duty and transferred to the CAARNG. 11. By memorandum on 4 August 2015, the CAARNG denied his exception to policy request and confirmed his $30,000 debt. 12. On 4 December 2014, the applicant was honorably discharged from the CAARNG and the Reserve of the Army. A review of his record shows among his awards the Purple Heart, Bronze Star Medal (2nd Award), Combat Infantryman Badge, Iraq Campaign Medal with two bronze service stars and the Afghanistan Campaign Medal with two bronze service stars. REFERENCES: 1. Title 37, USC, section 308 states, in pertinent part, that a bonus can be paid to a member of a uniformed service who has completed at least 17 months of continuous active duty (other than for training) but not more than 20 years of active duty (emphasis added); is qualified in a critical military skill; reenlists or voluntarily extends the member’s enlistment for a period of at least 3 years in a regular component of the service concerned or in a Reserve Component of the service concerned. 2. Title 37, USC, section 308(b) states, in pertinent part, that a bonus can be paid to a member of a Reserve Component who has completed not more than 20 years of total military service; reenlists or voluntarily extends an enlistment for a period of at least 3 years in a designated military skill in the Selected Reserve of the Ready Reserve of an armed force; and the bonus is not to exceed $15,000. A member who does not complete the term of enlistment for which the bonus was paid shall be subject to the repayment provisions of section 303a(e) of this title. 3. Title 37, USC, section 303a(e) provides that a member of the uniformed services who receives a bonus or similar benefit and whose receipt of the bonus or similar benefit is subject to the condition that the member continue to satisfy certain eligibility requirements shall repay to the United States an amount equal to the unearned portion of the bonus or similar benefit if the member fails to satisfy the eligibility requirements and may not receive any unpaid amounts of the bonus or similar benefit after the member fails to satisfy the requirements, unless the Secretary concerned determines that the imposition of the repayment requirement and termination of the payment of unpaid amounts of the bonus or similar benefit with regard to the member would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States. The Secretary concerned may establish, by regulations, procedures for determining the amount of the repayment required under this subsection and the circumstances under which an exception to the required repayment may be granted. The Secretary concerned may specify in the regulations the conditions under which an installment payment of a bonus or similar benefit to be paid to a member of the uniformed services will not be made if the member no longer satisfies the eligibility requirements for the bonus or similar benefit. For the military departments, this subsection shall be administered under regulations prescribed by the Secretary of Defense. 4. Title 10, USC, section 1552 states: a. The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. b. No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice. c. The Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps, or Coast Guard. 5. Army Regulation 135-7 (ARNG and Army Reserve – Incentive Program) provides policies and procedures for the administration of the ARNG and USAR incentive programs. a. The Secretary of the Army authorizes the use of incentives as an extraordinary measure to assist the ARNG and USAR in meeting and sustaining manpower requirements. Incentives also contribute to quality and skill-match objectives, and helps to stabilize the ARNG and USAR through longer service commitments. Incentives will be used to support early deploying units, critical shortage skills, and shortages in the IRR. Headquarters, Department of the Army (HQDA), Office, Deputy Chief of Staff for Personnel will announce the effective date of program adjustments. b. Chapter 4 (Selected Reserve Incentive Program – REB) provides for the computation of years of service. To compute the total years of service at current ETS for reenlistment bonus eligibility – subtract the pay entry basic date (PEBD) from the ETS date (inclusive) of the current enlistment agreement (as amended by current extension if applicable). Where a soldier has a period of nonavailability, spent in the Inactive Guard or the IRR/Standby Reserve, that time will be deducted from the total years of service as computed above. But this is only for the purpose of establishing reenlistment bonus eligibility under the SRIP. 6. DOD 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. a. Chapter 1 prescribes the criteria for determining creditable service for military members. There are several military pay and personnel systems using a variety of dates to determine various entitlements. For most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service. If, however, there is a break in service, the time between periods of service usually is not included. A creditable service period includes active or inactive service in the Army. b. Chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 0203Title04 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, 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 based on the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States DISCUSSION: 1. While in Iraq, the applicant extended his enlistment for 6 years completing an enlistment incentive addendum wherein he acknowledged he had less than 20 years of military service. During an audit, it was determined he had more than 20 years of military service (active and inactive). He argues the audit is wrong because he should have been discharged after his first period of Regular Army service for he had completed his military service obligation. In effect, he states the time between his discharge and contract with the CAARNG should not be counted toward his total time in service. Army regulations support his argument. In accordance with Army Regulation 135-7, his period of service in the IRR should not have been counted in his service computation for entitlement for the REB incentive. 2. The evidence of record supports he was not eligible for a $30,000 REB, based upon policy guidance and law at the time he extended. The law states an REB for a member of a Reserve Component will not exceed $15,000. It appears his active component personnel officer in Iraq advised him erroneously that he was entitled to the active component $30,000 REB. Based on the erroneous information, the applicant received the $30,000 REB. 3. The applicant served multiple tours in hostile fire zones. He was awarded the Combat Infantryman Badge and two Bronze Star Medals for this service. He was wounded in action and received the Purple Heart. He faithfully completed his enlistment extension for which he was paid the REB. 4. The applicant clearly should not have been offered the $30,000 bonus. By law he was only entitled to a $15,000 bonus, but an apparent lack of quality control and understanding of Reserve Component and Regular Army incentive policies on the part of his active component personnel officer contributed to his erroneously receiving the $30,000 REB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013975 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013975 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2