IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150012778 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: 28 July 2016 DOCKET NUMBER: AR20150012778 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: a. showing the applicant's request for ETP to retain the $15,000.00 REB authorized in his NGB Form 600-7-1-R-E, dated 25 January 2007 was approved; and b. cancelling the recoupment action as a result of the above correction and returning to him any monies that have been recouped. _____________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: 28 July 2016 DOCKET NUMBER: AR20150012778 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 reinstatement of his reenlistment/extension bonus (REB) based on his extension in the Army National Guard (ARNG) on 25 January 2007 and remission of the debt he incurred resulting from recoupment of that bonus. 2. The applicant states: * he extended his enlistment in the ARNG in 2007 and received a $15,000 bonus in the military occupational specialty 91L (construction Equipment Repairer), which was formerly designated 62B (Construction Equipment Repairer) * he was reassigned in June 2010 due to a change in his unit’s Modified Table of Organization and Equipment (MTOE ) and placed in a 91B position since there were no 91L positions after the unit reorganization * he was then required to have his primary MOS changed to 91B, as he was assigned against a 91B slot * the original reassignment order erroneously stated the transfer was at the individual’s request, therefore payment of his bonus was stopped due to the voluntary change in his MOS * he took this information to his unit for corrective action, and his reassignment orders were amended to show the reason for the reassignment was not at his request, but due to unit inactivation, reorganization, or relocation * the corrected orders apparently were not received by the incentives office in a timely manner and now his bonus is being recouped * he requests remission of the debt and reinstatement of his REB 3. The applicant provides: * Headquarters, Missouri National Guard, Joint Force Headquarters, Orders 179-156, dated 28 June 2010 * Headquarters, Missouri National Guard, Joint Force Headquarters, Orders 181-128, dated 29 June 2012 * Missouri National Guard memorandum, dated 29 June 2015, subject: Request for Exception to Policy (ETP) for ARNG REB, Sergeant T___ J. K____ (XXX-XX-0339) * self-authored statement 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 ARNG on 27 January 2001. National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 - Enlistment Bonus Addendum), dated 27 January 2001, shows he enlisted for a bonus of $8,000.00 and agreed to serve in Company B, 203rd Engineer Battalion, in the MOS 62B. He continues to serve in the ARNG in the rank of Sergeant. 3. Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, Orders 193-581, dated 12 July 2001, awarded him the primary MOS 62B. 4. NGB Form 600-7-1-R-E, dated 25 January 2007, shows he extended for a period of 6 years for a REB of $15,000.00. He acknowledged he understood the bonus would be terminated if he voluntarily transferred into a non-critical skill MOS for which the bonus was awarded upon enlistment or he did not become qualified in and awarded the MOS for his position within 36 months after the date of enlistment. Recoupment would be calculated from the effective date of transfer. 5. Due to Army-wide MOS restructuring, MOS 62B converted to MOS 91L. Headquarters, Missouri National Guard, Joint Force Headquarters, Orders 259-360, dated 16 September 2009, awarded him MOS 91L and withdrew MOS 62B effective the date of the orders. 6. Headquarters, Missouri National Guard, Orders 179-156, dated 28 June 2010, released the applicant from his position as construction equipment repairer in Company B, 311th Brigade Support Battalion, Lexington, MO and transferred him to a position as a wheeled vehicle mechanic (MOS 91B) in Company B, 311th Brigade Support Battalion, Centertown, MO. The assignment/loss reason is listed as individual’s request, his MOS is shown as 91B, and he is listed as not qualified for the duty position. 7. Headquarters, Missouri National Guard, Orders 181-128, dated 29 June 2012, were issued to amend above-referenced orders. The assignment/loss reason was amended to show it was not at the individual’s request but rather due to unit inactivation, reorganization, or relocation. 8. Missouri National Guard, Joint Force Headquarters memorandum, dated 29 June 2015, subject: Request for ETP for ARNG REB, [Applicant], shows the applicant's request for an ETP to retain the $15,000.00 REB he contracted for in January 2007 was denied. It states: a. Records indicate the applicant voluntarily transferred to an MOS 91B position on 28 June 2010 in violation of Department of Defense Instruction (DODI) 1205.21. His contracted MOS was 62B/91L. b. In accordance with National Guard Regulation 600-7 (Selected Reserve Incentive Programs), the ARNG delegated authority to the State level to deny ETP requests when there is a violation of law or DODI for which the ARNG has no authority to grant an exception. ARNG does not have the authority to release a debt if it has already been established. The discrepancy identified violates DODI 1205.21 and is beyond ARNG authority to correct; therefore the Soldier may file a claim with the ABCMR. c. The State Education and Incentives office recognizes the fact that the applicant’s original transfer order was incorrect. However, due to the debt already being established, he can no longer request an ETP. REFERENCES: 1. DODI Number 1205.21 provides policy, assigned responsibilities, and prescribes procedures for the management of the Reserve components incentive programs. It states: a. As a condition of the receipt of an incentive covered by this instruction, 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. b. Persons who move from one location to another may continue incentive eligibility if they remain in the Selected Reserve of the same Military Department and are assigned to an incentive-eligible unit or incentive-eligible critical skill, as appropriate. Each Military Department shall endeavor to transfer an incentive recipient who moves to a new location into a similar Selected Reserve unit or one that can make use of the skill. Failure to join another unit or find a position in the Selected Reserve in 6 months shall terminate the member from program eligibility. c. Persons whose military specialty is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized, or converted (e.g., weapons systems conversion) are entitled to continue receiving incentive payments provided they meet all other eligibility criteria, and are not separated from the Selected Reserve. 2. Army National Guard Selected Reserve Incentive Program (SRIP Policy Guidance for Fiscal Year 2007 (Policy Number 07-04) effective 1 January 2007 states entitlement to an REB incentive will be terminated with recoupment when a member fails to hold the military grade and skill qualification commensurate with the vacancy reenlisting/extending for. Soldiers not duty MOS qualified for the sole reason of unit transition (reorganization, inactivation or relocation) and who are otherwise fully eligible for the incentive may be reenlisted/extended for the REB. DISCUSSION: 1. The applicant requests reinstatement of his REB based on his extension in the ARNG on 25 January 2007 and remission of the debt he incurred resulting from recoupment of that bonus. 2. He extended his contract in the ARNG on 25 January 2007 for a period of 6 years and contracted for a REB of $15,000.00. His contracted MOS at the time was 62B. 3. Subsequent to his extension, Army-wide MOS restructuring resulted in his MOS 62B converting to MOS 91L. Therefore, on 16 September 2009, MOS 62B was withdrawn and he was awarded MOS 91L. 4. He was involuntarily reassigned in June 2010 due a change in his unit’s MTOE and placed in a 91B position, as there were no 91L positions after the unit reorganization. He was then required to have his primary MOS changed to 91B as he was assigned against a 91B slot. 5. The original reassignment order erroneously stated the transfer was at the individual’s request. Therefore, payment of his bonus was stopped and recoupment action initiated because he no longer met the conditions of entitlement. 6. His unit subsequently amended the reassignment orders to show the applicant’s transfer out of his contracted MOS was not voluntary, but rather due to unit inactivation, reorganization, or relocation. 7. Although the Missouri National Guard acknowledges the error in the original orders, which resulted in the recoupment of his REB, they are unable to grant the applicant’s ETP to retain the REB because recoupment action was already initiated. 8. Regulatory guidance states individuals whose military specialty is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized, or converted are entitled to continue receiving incentive payments provided they meet all other eligibility criteria and are not separated from the Selected Reserve. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012778 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012778 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2