BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20150017376 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 BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20150017376 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. BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20150017376 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 granted an exception to policy (ETP), thereby allowing him to be eligible for and receive a Reenlistment/Extension Bonus (REB) in the amount of $10,000. 2. The applicant states: a. On 18 October 2014, he took and failed a record Army Physical Fitness Test (APFT). He failed to complete the 2-mile run event due to a leg injury that occurred during the sit-up event. He was flagged accordingly. b. On 15 November 2014, he took and failed a diagnostic APFT; his leg injury was still bothersome and prevented him from running. This was intended to be a diagnostic APFT, as he was aware, and because of the injury to his leg he would likely not be able to run to his full ability. On 11 January 2015, he took and passed a record APFT. c. In May 2015, he called the New York Army National Guard (NYARNG) Education Services Office to inquire about the status of his bonus, something he had done repeatedly since April 2013 when issues with the payment of his reenlistment bonus arose. On this occasion, he spoke with SFC K.S. and she explained that once he resolved the issue with his APFTs from the fall of 2014, he would receive his bonus payment. This was the first time he became aware of any issue regarding APFTs taken during that time period; however, he did not have any specifics in terms of what exactly had occurred with his records. After the conversation with SFC K.S., he talked with SSG G.F., his unit administrative noncommissioned officer (NCO) who was responsible for handling bonus issues for his company. He told SSG G.F. about his conversation with SFC K.S., and was told he would look into it; however, he received no further guidance from him. d. On 16 September 2015, the ARNG drafted a memorandum titled "Second Review Request for ETP for REB (Applicant) (This ETP supersedes ETP request dated 29 May 2014)," which denied his ETP to retain his reenlistment bonus based on his failure of two consecutive record APFTs, the second being on 15 November 2014. e. On 6 October 2015, COL S.M.R., Director, Military Personnel, drafted a memorandum titled "ETP for REB" explaining what was contained in the ARNG memorandum dated 16 September 2015, and giving him until 4 November 2015 to submit an appeal with the Army Board for Correction of Military Records (ABCMR). The point of contact for the memorandum was CPT P.R., NYARNG Education Services Officer. f. On 21 October 2015, he received the letter from the post office, containing the memoranda dated 16 September 2015 and 06 October 2015, which gave him until 04 November 2015 to submit a request to the ABCMR in order to retain his REB. This was the first time he became aware of the specifics of his issue concerning the APFT conducted in the fall of 2014. He called the NYARNG Education Services Office for further clarification on what was actually happening and how to resolve the issue; however, they failed to provide any explanation or information of use. g. On 28 October 2015, he spoke with SFC C.C., his unit readiness NCO, to try to determine what was actually entered into the unit administrative systems concerning his APFTs in the fall of 2014. SFC C.C. reviewed the unit paperwork and, based on not having a DA Form 705 (APFT Scorecard) for his 15 November 2014, removed the entry from RCAS and DTMS on 28 October 2015. The only record of this diagnostic APFT was the enclosed document, as no DA Form 705 was completed as it was supposed to be an internal document for his unit and was never supposed to be entered into any database. As the 15 November 2014 APFT failure was removed from RCAS and DTMS, he attempted, through phone calls on 28 October 2015 and then with an email on 29 October 2015 to CPT P.R. and the NYARNG Education Services Office, to confirm that he no longer had to go through the ABCMR process because it was his understanding the issue was resolved; however, he received no read receipt acknowledgment or email response back. He also repeatedly called CPT P.R. and the NYARNG Education Services Office from 28 October 2015 to 2 November 2015, with no one ever answering their phone. h. On 3 November 2015, he called the NYARNG Education Services Office and spoke with SFC R.L. He explained that he still had to go through the ABCMR process because his ETP (dated 16 September 2015) was denied, and a decision by the ABCMR was the only way to get the ETP overturned. After this phone conversation, he received a read receipt from CPT P.R. from his 29 October 2015 email. As his unit removed this flag from his records, he asks the Board rule in his favor so that he may receive his reenlistment bonus for his extension, dated 14 June 2012. 3. The applicant provides: * a two page self-authored statement * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 14 June 2012 * NGB (National Guard Bureau) 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 Army (ARNG), dated 14 June 2012 * a computer generated "APFT Scoresheet" document, dated 17 October 2014 * a memorandum from the NGB to the NYARNG State Incentive Manager, subject: Second Review Request for ETP for REB (Applicant), dated 6 September 2015 (This ETP supersedes the ETP dated 29 May 2014) * a memorandum from the Director, Military Personnel, to the applicant, subject: ETP for REB, dated 6 October 2015 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. Following prior service in the Regular Army, the applicant enlisted in the NYARNG on 31 December 2009. 3. The applicant executed a DA Form 4836 on 23 January 2011, wherein he extended his enlistment for a period of 1 year and 3 months, thus establishing a new expiration term of service (ETS) date of 30 March 2013. He executed another DA Form 4836 on 14 June 2012, wherein he extended his enlistment for a period of 6 years, thus extending his ETS date to 30 March 2019. 4. In connection with his 14 June 2012 extension, he signed an REB Addendum, wherein he affirmed his understanding of the eligibility requirements for this bonus by initialing the following statements: a. Section II (Eligibility), item 4: I must reenlist/extend Duty Military Occupational Specialty Qualified (DMOSQ) in an MOS within a Modified Table of Organization and Equipment (MTOE) or Medical Table of Distribution and Allowances (TDA) unit only regardless of State or National assigned strength levels unless I am Non-DMOSQ due to unit transition (deployment, reorganization, inactivation, transformation or relocation) only. b. Section II (Eligibility), item 18: I am DMOSQ for the position for which I am reenlisting/extending and I hold the rank and grade commensurate with the position I am reenlisting/extending for. I am reenlisting/extending into the ARNG MOS of 35M. c. Section III (REB), item 1a NGB REB (6 years): I am reenlisting/extending for six-years to receive a total bonus payment of $10,000. I certify that I am reenlisting/extending in a valid, vacant position and I am not coded as excess to the unit. The bonus will be paid in one lump-sum that will be processed the day after my current ETS. d. Section V (Termination), item 2d: I may be terminated from incentive eligibility with recoupment if I have two consecutive record APFT failures and/or two consecutive failures to meet body fat standards within this contract term. The termination date will be effective on the date of the second APFT failure or second failure to meet body fat standards. 5. In addition, he verified each section by placing his initials on every line of the NGB Form 600-7-3-R-E where it solicited an initial, attesting to his understanding of the specific provision of each section, including eligibility, suspension, termination without recoupment, and termination with recoupment, along with the service representative. 6. The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 10 October 2013. 7. His record contains a memorandum from the NGB responding to the NYARNG's request for an ETP on 29 May 2014, subject: Request for ETP for REB (Applicant). This memorandum states: a. Reference: ARNG Selected Reserve Incentives Program (SRIP) Policy for FY12 (Policy Number 012-01) effective 5 June 2012. b. An ETP to retain the $10,000 REB for the discrepancy(ies) listed below is approved. c. [The applicant] erroneously selected multiple options under Section II, paragraph 18 on the incentive addendum which violates ARNG SRIP 12-01. d. His contract/agreement details: * State enlisted/accessed: NY; UIC: PBFB0 * Date of agreement/enlistment: 14 June 2012 * Contracted bonus addendum/agreement amount: $10,000 * Contracted AOC/MOS: 35M; Current AOC/MOS: 35M e. A review of the Department of the Army Form 4836 supports an incentive being offered at the time of agreement/contract. f. [The applicant] accepted an incentive offer in good faith and has otherwise fulfilled the obligations under the contract as of the date of this request. Therefore, withholding payment of this incentive would be against equity and good conscience and contrary to the best interest of the Army. g. The MILPO should be made aware of these cases in order to provide the necessary training to those involved in the recruiting application process in order to prevent any injustice that may come to the Soldier from no fault of their own. 8. The applicant's record contains DA Form 2166-8 (NCO Evaluation Report) for the time period from 31 December 2013 through 30 December 2014, which confirms in block c (Physical Fitness & Military Bearing) that he failed his APFT on 15 November 2014. His record also contains another DA Form 2166-8 for the time period 31 December 2014 through 30 December 2015, which shows he passed his APFT on 11 January 2015. He signed and dated both forms. 9. The applicant's record does not contain evidence that supports his contention that his 15 November 2014 APFT should have been considered a diagnostic (not for record) APFT. 10. The NGB denied the NYARNG's request for an ETP on 16 September 2015, subject: Second Review for ETP for REB (Applicant) (This ETP supersedes the ETP request dated 29 May 2014). This memorandum states: a. An ETP to retain the $10,000 REB is disapproved for the discrepancies listed below: (1) Failure of two consecutive for record APFTs in violation of ARNG SRIP 12-01. (2) Selected multiple options on the incentive addendum in violation of ARNG SRIP 12-01. b. Contract/agreement details: * State enlisted/accessed: NY; UIC: PBFB0 * Date of agreement/enlistment: 14 June 2012 * Contracted bonus addendum/agreement amount: $10,000 * Contracted AOC/MOS: 35M; Current AOC/MOS; 35M c. The State Incentive Manager will terminate the incentive with recoupment effective the date of the second APFT failure. d. [The applicant] may file a claim with the ABCMR in accordance with Army Regulation 15-185 (ABCMR) if there is belief that an error or injustice still exists. 11. By email, the Defense Finance and Accounting Service (DFAS) confirmed the applicant did not receive an REB payment during his service. 12. The applicant provides the following documents in support of his application, which have not been previously discussed: a. A computer generated "APFT Scoresheet" document, dated 17 October 2014, which lists the applicant and shows he failed his APFT by reason of failing the 2-mile run. b. A memorandum from the Director, Military Personnel, NYARNG, to the applicant, subject: ETP for REB, dated 6 October 2015 that informs him the ETP to retain his REB incentive was denied by the NGB Education, Incentives, and Employment Division by reason of failing two consecutive record APFTs. It further stated if he felt an error occurred he may apply to the ABCMR and to notify the NYARNG Education Service Officer, CPT P.R., of proof of his application to the ABCMR so recoupment action could be suspended until official disposition of his case. REFERENCES: 1. Department of Defense Instruction (DODI) Number 1205.21, dated 20 September 1999, 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 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard and the USAR incentive programs. It provides that an REB may be awarded to a Selected Reserve Soldier who meets all immediate reenlistment or extension eligibility criteria and is reenlisting or extending for a valid position vacancy in a designated unit or MOS authorized for award of an immediate REB. 4. National Guard Regulation (NGR) 600-7 (Selected Reserve Incentive Programs) prescribed policies and procedures for the administration of the ARNGUS incentive programs and is used for the SRIP. With regard to the REB, it states: a. Paragraph 1-21 (Continued Receipt of Incentives) states a Soldier may be eligible for continued receipt of incentive(s) when during a period of suspension of favorable personal action(s) (FLAG), receipt of incentives is suspended. Exceptions are for APFT failures or failures to meet body fat standards as prescribed in paragraph 1-22b. b. Paragraph 1-22 (Suspension of Incentives) states a Soldier who has a suspension of FLAG initiated will not be processed for an initial or anniversary payment. Incentive payments(s) will be processed effective on the date the suspension is lifted, provided the Soldier is eligible. Payment date(s) of original entitlement date will not be updated to date of flag removal. This excludes flags for the APFT failure or failure to meet body fat standards. DISCUSSION: 1. The applicant requests correction of his records to show he was granted an ETP allowing him to be eligible for and receive a REB in the amount of $10,000. 2. The applicant reenlisted in the NYARNG and was authorized a $10,000 REB. In the reenlistment agreement, he acknowledged he understood the circumstances that could result in the loss of bonus eligibility with recoupment. 3. The NGB denied his request to retain the REB because he failed two consecutive record APFTs within his contract term. Additionally, he provided an automated APFT scoresheet that shows he failed the run on 17 October 2014 and his record contains a DA Form 2166-8 with ending date of 30 December 2014 that shows he failed the run on his APFT on 15 November 2014. Both of these APFTs are assumed to be for record APFTs. 4. There is a presumption of government regularity in the conduct of its affairs. The applicant contends the later test, 15 November 2014, was a diagnostic APFT; however, it is recorded on his DA Form 2166-8, which he authenticated with his signature, which was filed at Headquarters, Department of the Army, and he provides no corroborating evidence to show otherwise. 5. In accordance with applicable Army regulations and the SRIP Fiscal Year 2012 (Policy Number 12-01), a Soldier who failed two consecutive APFTs is in violation of his/her contract and will have their incentive terminated with recoupment action effective the date of the second APFT failure. Additionally, DFAS noted he has not received an REB payment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017376 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017376 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2