BOARD DATE: 13 September 2016 DOCKET NUMBER: AR20150011433 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: 13 September 2016 DOCKET NUMBER: AR20150011433 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 payment of a Prior Service Enlistment Bonus in MOS 31B was approved in accordance with his bonus addendum dated 22 October 2008 and paying him all monies due in accordance with the bonus addendum. __________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: 13 September 2016 DOCKET NUMBER: AR20150011433 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 record to show he was present for duty instead of absent without leave (AWOL) for his November and December 2008 drills and payment of his prior service enlistment bonus (PSEB). 2. The applicant states his chain of command unjustly placed him in an AWOL status for two drills without informing, counselling, or ever giving him an opportunity to defend himself at the time. 3. The applicant provides copies of: * NGB Form 23 (Army National Guard (ARNG) Retirement Points History Statement) * Priority Mail post-marked envelope addressed to the Army Review Boards Agency with a return label * self-authored statement (Request for Exception to Policy (ETP)) * two self-authored letters, dated 27 January and 30 June 2015 * five DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) * four DA Forms 1059 (Service School Academic Evaluation Report) * NGB Form 600-7-6-R-E (Annex X to DD Form 4 (PSEB Addendum – ARNG of the United States)) * DD Form 4 (Enlistment/Reenlistment Document) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Office of the Inspector General letter * active duty orders CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant enlisted in the Puerto Rico ARNG (PRARNG) for 6 years on 22 October 2008. He completed various documents in connection with this enlistment, among them, Annex X, which states: * I am not qualified in the primary MOS for which I am enlisting, but have enlisted into an MTOE 9Modified Table of Organization and Equipment) unit in critical skill 31B (Military Police) * I agree to attend formal training and become qualified in my contracted MOS within 24 months of my date of enlistment * I understand my initial bonus payment will not be processed until I become Duty MOS qualified (DMOSQ) * I understand I will be terminated from bonus eligibility with recoupment if I accumulate nine unexcused absences within a 12-month period. Recoupment will be calculated from the date of the 9th unexcused absence * I will receive a total bonus payment in the amount of $15,000 less taxes for a 6-year enlistment in a non-critical MTOE unit 2. Upon the applicant completing critical skill training, the PRARNG Element, Joint Forces Headquarters, published Orders Number 273-677, dated 20 September 2010. It announced his award of MOS 31B effective 29 August 2010. 3. On 4 March 2015, the applicant initiated an ETP request wherein he indicated: a. he reenlisted in the PRARNG in critical military occupational specialty (MOS) 31B (Military Police) on 22 October 2008; b. due to the arrival of a lot of new Soldiers, including himself, his unit was disorganized during the first months of drills; c. his name was penciled in on the DA Form 1379-E (Unit Record of Reserve Training) during the first couple of drills, which appeared normal given other new Soldiers were experiencing the same; d. upon receipt of his DA Form 1059 (Service School Academic Report), evidencing his MOS training, he requested the initial payment of his bonus only to learn in 2014, after 6 years of many setbacks, that his unit reported him in an AWOL status for the first two drills; e. his military record will show that after 15 years of service to the present, he never departed AWOL, he always lived by Army values; and f. given his unit acknowledged and fixed their mistake, he is hopeful he will receive his bonus. 4. On 4 March 2016, the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB), recommended approval of the applicant’s request for reinstatement of his PSEB and receipt of his initial and successive payment of the bonus. This official also stated: a. During the scheduled training assembly for November and December 2008, the applicant was listed as having accumulated nine unexcused absences for scheduled multiple unit training assemblies (MUTA). Per the Soldier’s PSEB addendum, termination of his PSEB with recoupment would occur if he accumulated nine unexcused absences in a 12-month period. Recoupment will be calculated from the date of the 9th unexcused absence. b. In accordance with Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) Chapter 4, paragraph 14b, if absent from a MUTA five or MUTA six, the maximum number of unexcused absence charged is four. Army officials inadvertently charged the applicant nine MUTA vice the correct MUTA of eight for his unexcused absence for November and December 2008 scheduled training assembly. Additionally, the applicant never received the initial bonus payment or successive anniversary payment per the requirements of his PSEB addendum. c. Recommend approval to reinstate and pay the applicant’s PSEB because he completed the required MOS qualification as a 31B and did not exceed the nine unexcused MUTA absences within a 12 month period required to terminate the incentive with recoupment. 5. A DA Form 1379-E (11 pages) included with the NGB advisory shows the applicant was reported AWOL from 14 – 16 November 2008. It also shows he accrued unexcused leave from 12 – 14 December 2008. 6. On 8 March 2016, a staff member of the Army Board for Correction of Military Records forwarded a copy of the advisory opinion to the applicant for his comments or rebuttal. On 16 March 2016, the applicant concurred with the recommendation. 7. The applicant’s official military personnel file (OMPF) contains no evidence that he was reported AWOL or that he was notified that he was being reported in an AWOL status at any time during his military service. REFERENCES: Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) defines ARNG of the United States and U.S. Army Reserve service obligations. It prescribes policies and procedures governing the various types of service obligations, and participation requirements. It discusses excused absences and the policy on pregnancy. Finally, the regulation covers enforcement procedures regarding unsatisfactory participation. a. Paragraph 4-14 provides for unexcused absence from MUTA and states a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training (IDT) periods occur during a 12 month period. If absent from a MUTA 5 or MUTA 6, the maximum number of unexcused absences charged is four. Unexcused absences remain charged to the Soldier on reassignment or reenlistment in another RC unit. b. Paragraph 4-15 provides for the documentation of unexcused absences. It states that unit commanders and commanders of proponent Individual Mobilization Augmentee (IMA) organizations to ensure that required documentary evidence is contained in the Military Personnel Records Jacket (MPRJ). A notice of unexcused absence with instructions will be delivered to the Soldier either in person or by certified mail, restricted delivery, return receipt requested, as indicated. If certified mail is used in lieu of delivery in person, the notice will be mailed during or immediately following the unit training assembly or MUTA from which absent. (1) Unit Soldiers and IMAs who are required to perform 48 IDTs per year will be notified commencing with the fourth unexcused absence in a 12-month period and after each succeeding unexcused absence up to and including the ninth absence in that 12-month period which results in the determination of unsatisfactory participation. One letter will cover all unexcused absences from a MUTA. (2) IMAs required to perform less than 48 IDTs per year will be notified commencing with the first unexcused absence and after each succeeding unexcused absence in a 12-month period up to and including the absence which results in the determination of unsatisfactory participation. c. Documentary evidence: Whether notices required by a above are delivered in person or sent by certified mail, a copy of each notice and the following, as appropriate, will be placed in the Soldier’s MPRJ. (1) When the notices are personally delivered, the Soldier’s signature will be obtained on the file copy as acknowledgment of receipt. (2) When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered. Mail refused, unclaimed, or otherwise not delivered may not be used as defense against unexcused absences when notices were correctly addressed. DISCUSSION: 1. The applicant contends he was erroneously reported AWOL in November and December 2008 without notification, counseling, or an opportunity to defend himself. While unit records of Reserve training list the applicant AWOL or show the applicant had unexcused absences on 14 and 15 November 2008 and from 12 through 14 December 2008, there is no evidence of record to show his commander ever provided the applicant notification, in person or in writing, of any unexcused absences or AWOL at any time throughout his military service. Therefore, inasmuch as there are no documents in the applicant’s OMPF evidencing unexcused absences or records of AWOL, there are no documents or records to correct. 2. The evidence of record confirms the applicant agreed to serve for a period of 6 years in MOS 31B contingent upon receiving a $15,000 PSEB. Since his 22 October 2008 enlistment, he attended and successfully completed MOS training and continues to serve in this MOS today, nearly completing his 6 years of service. The applicant has not received any PSEB payments. He entered into the contract in good faith. He was promised a $15,000 PSEB in conjunction with his enlistment and this commitment was documented in the enlistment documents prepared. 3. The advisory opinion provided by the NGB recommends granting relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS (ABCMR) RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011433 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011433 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2