BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017959 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: 13 April 2017 DOCKET NUMBER: AR20150017959 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: 13 April 2017 DOCKET NUMBER: AR20150017959 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 correction of his records to show he is authorized to retain his Non-Prior Service Enlistment Bonus (NPSEB) offered at the time of his enlistment in the U.S. Army Reserve (USAR) on 29 May 2009. 2. The applicant states: a. He is recorded in an unsatisfactory participation status, which caused removal of his bonus and the Montgomery GI Bill (MGIB) kicker. Through working with his Congressman, he recovered his MGIB kicker, but not his bonus. b. Mistakes in the rescheduled training records for battle (unit training) assemblies in Fiscal Years 2010 and 2011 caused him to be placed in an unsatisfactory participation status and bonus recoupment was initiated in 2014. He worked with his unit; they realized the mistakes and requested an exception to policy (ETP). The memorandum from his company commander reinstated his MGIB kicker, but did not correct his bonus recoupment. 3. The applicant provides a memorandum from the Commander, 450th Military Police Company, dated 12 June 2014. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR on 29 May 2009 for a period of 8 years. 2. His Selected Reserve Incentive Program – Enlistment Bonus Addendum, dated 29 May 2009, shows he enlisted for the NPSEB in the amount of $20,000.00. Section VII (Termination) of his NPSEB Addendum states his entitlement to the bonus will be terminated if he becomes an unsatisfactory participant and could result in recoupment action. 3. His records show he became an unsatisfactory participant on 12 March 2011 after receiving his ninth unexcused absence from unit training assemblies. 4. His NPSEB was terminated effective 12 March 2011 with recoupment. 5. He was ordered to active duty on 25 October 2012 in support of Operation Enduring Freedom. He served in Afghanistan from 13 December 2012 to 5 September 2013. On 12 October 2013, he was released from active duty. 6. He provided a memorandum from the Commander, 450th Military Police Company, dated 12 June 2014, subject: Unsatisfactory Recovery for (Applicant), stating: a. On 2 April 2011, he attended the battle assembly with the unit. At this time, he presented documentation and evidence of personal issues during his unexcused absences from December 2010 to March 2011. b. On 2 April 2011, his company commander determined he would become a "recovered Soldier" and his unsatisfactory participation packet would not be processed. To remain as a "recovered Soldier," he was required to attend all unit battle assemblies as identified by the Fiscal Year 2011 battle assembly schedule. c. His company commander requested amendment of his code in the Reserve Component Management System to reflect that he is in good standing and reinstatement of his MGIB benefits. His company commander also requested approval of an ETP from the U.S. Army Reserve Command (USARC) G-1 for reinstatement of his enlistment bonus, which was recouped. 7. His records do not contain a decision from the USARC G-1 regarding the request for approval of an ETP for reinstatement of his enlistment bonus. 8. He was promoted to the rank/pay grade of sergeant/E-5 effective 1 September 2014. 9. In the processing of this case, a staff advisory opinion was obtained from the Chief, Manning Division, Office of the Deputy Chief of Staff, G-1, USARC, dated 25 April 2016, wherein she stated: a. The applicant contracted with the USAR on 29 May 2009 for a 6-year $20,000.00 NPSEB. His contract stipulated that he serve his initial 6 years in a bonus unit and serve satisfactorily. He became an unsatisfactory participant on 12 March 2011 after receiving his ninth unexcused absence from unit training assemblies. His bonus was terminated effective 12 March 2011 with recoupment. When a Soldier becomes an unsatisfactory participant, Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), paragraph 10-8, requires termination of eligibility and recoupment of calculated overpayments to the Soldier. b. The commander of the 450th Military Police Company requested approval of an ETP to reinstate the applicant's NSPEB. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 4-13, requires an ETP for unexcused absences be approved by general officer commanders or, with delegated authority, commanders in the grade of lieutenant colonel or above. In this case, the applicant's immediate chain of command recommended denial of bonus reinstatement due to lack of substantiating documentation to prove the unexcused absences were erroneous. c. Based on this evidence, the USARC G-1 finds the debt to be valid and recommends disapproval of the applicant's request to retain the bonus. 10. A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal. 11. On 20 May 2016, he responded and stated: a. He disagrees with the advisory opinion. First and foremost, the absences were annotated erroneously and that is where the initial problem started. He had requested to reschedule training a number of times during this time period for two reasons: complications his wife had during her pregnancy with their son and the law enforcement training academy for his current position with the sheriff's office. b. Although he was unable to attend some unit training assemblies, he requested and fulfilled rescheduled training for these assemblies that he later found were not entered (recorded in the Reserve Component Management System) properly by his unit. He had not realized they were not entered at the time and would have worked to rectify the problem then if he had known. In speaking with his unit commander and a number of high-ranking noncommissioned officers who deployed to Afghanistan with him, a consensus was reached that he was not the type of Soldier who did not fulfill his commitments, and that is why the original request for approval of an ETP was made. c. Regardless of whether or not the absences were excused or made up, the Army's policy as it relates to recoupment of his bonus, in his opinion, is meant to deal with Soldiers who ultimately give up and repeatedly fail to meet the Army's standards for conduct. If this were his intent and if he were an individual who simply decided to thwart the contract he had signed, he would never have continued his service, nor would he have served in support of Operation Enduring Freedom with honor. He obviously continued to serve within the confines of his contract for a long period after the alleged absences and this speaks to his character as well as to the commitment he had to continue his contractual agreement. d. Army Regulation 135-91 states, "A Soldier's overall performance and record of attendance at previously scheduled training are the primary factors in granting exceptions to unexcused absences. Only Soldiers who have clearly shown exemplary performance of duty and a potential for continued outstanding service will be favorably considered." He has shown that his performance is such that it warrants granting this ETP. e. Finally, he has to mention a subject that he doesn't care to address, but it is important. If for some reason the ETP cannot be granted, he has to disagree with the amount of money the Army has recouped. When the initial recoupment occurred, approximately $15,000.00 was recouped and that turned into $19,000.00 for a reason he has still been unable to understand. He received a $20,000.00 bonus, of which he received $15,000.00 after taxes were taken. He is now paying the Army $4,000.00 for recoupment, which is well in excess of the original bonus he received. If this ETP cannot be granted, he hopes the debt is reduced significantly because of this issue. REFERENCES: 1. Army Regulation 135-91 prescribes policies and procedures governing the various types of Army National Guard of the United States and USAR service obligations and participation requirements. a. Paragraph 4-3 (Equivalent Training) provides that equivalent training will be performed in a pay status within 60 days of the absence when authorized by the unit commander. b. Paragraph 4-10 (Employment Conflicts) provides that employers sometimes schedule several weeks of career training, which prevents the Soldier from attending inactive duty training periods (unit training assemblies). When this occurs, the circumstances may, in the judgment of the unit commander, justify rescheduled training authorization. Employment conflicts, overtime, schooling, and loss of income are not normally considered valid reasons for absence from training. If any of these conditions create a continuing hardship, the unit commander will refer the case through channels to the approval authority. The general officer commander will decide whether to retain or remove the Soldier from the unit. While awaiting this decision, the Soldier is required to participate. c. Paragraph 4-12 (Conditions of Unexcused Absence) provides that Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue a total of nine or more unexcused absences from scheduled inactive duty training periods in any 12-month period. d. Paragraph 4-13 (Exceptions to Unexcused Absences) provides that when a Soldier's absence was justified, but the reason is not one the unit commander can excuse, an exception may be granted. Requests for exception will be sent to the approval authority only when fully warranted. (1) A Soldier's overall performance and record of attendance at previously scheduled training are the primary factors in granting exceptions to unexcused absences. Only Soldiers who have clearly shown exemplary performance of duty and a potential for continued outstanding service will be favorably considered. (2) Exceptions to unexcused absences will not be granted unless there were extenuating circumstances bearing directly on the failure to attend the scheduled training. (3) Recommendations for exceptions to unexcused absences will be sent with full justification through command channels not later than 20 days after the absence. (4) General officer commanders are authorized to grant exceptions to unexcused absences. This authority may be delegated to commanders who are lieutenant colonels or above. The Soldier's overall record of performance will be given careful consideration in the decision. (5) A Soldier granted an exception is required to perform equivalent training within 60 days of the training for which substituted. The make-up period is credited as satisfactory participation in a pay status. When an exception to an unexcused absence is approved and made up by equivalent training, that absence is not counted in computing the number of unexcused absences in a 1-year period. e. Paragraph 4-14 (Unexcused Absence from Unit Training Assemblies) provides that a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training periods occur during a 12-month period. 2. Army Regulation 140-1 (Army Reserve – Mission, Organization, and Training) prescribes policy for the USAR mission, its organization, and training. a. Paragraph 3-11 (Equivalent Training) provides that equivalent training is performed in lieu of scheduled training. Equivalent training must be accomplished within 60 days after the training for which it is substituted, or by the end of the training year (fiscal year) if within 60 days of that date. Requests for exception to the 60-day limit will be sent to Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-3. An explanation of the circumstances will be included, with a statement that the equivalent training, if granted, will not cause the Soldier to exceed the 48 paid unit training assemblies for the fiscal year. Equivalent training is limited to Soldiers who have missed a unit training assembly due to unforeseen personal emergencies and desire to make it up. No more than four unit training assemblies may be made up during a fiscal year. b. Paragraph 3-12 (Rescheduled Training) provides that rescheduled training will enhance the ability of the unit to perform its assigned mission. (1) Commanders should use rescheduled training to increase flexibility in scheduling training activities that directly affect the unit's training status. Commanders will ensure the rescheduled training is not abused and that the Soldier or subsection performing the rescheduled training is contributing directly to the unit’s mission. Such training should be accomplished by complete subordinate elements of the unit (i.e., team, section, squad, platoon, or composite group) as directed by the commander, whenever possible. (2) All rescheduled training must be approved before the unit training assembly for which it is substituted. All participants must be identified by name or by their subsections in the approving document. (3) Individual Soldiers or section leaders may request rescheduled training if there is a training activity that is better accomplished at a time, date, and/or location other than the unit training assembly. (4) Rescheduled training will not be granted for the convenience of the Soldier. However, employment conflicts, overtime, schooling, loss of income, verified medical problems or personal emergencies, may, in the judgment of the unit commander, justify rescheduled training authorization. DISCUSSION: 1. The applicant enlisted in the USAR on 29 May 2009 for an NPSEB in the amount of $20,000.00. His NPSEB Addendum states his entitlement to the bonus will be terminated if he becomes an unsatisfactory participant. 2. The applicant contends mistakes in the battle assembly records caused him to be placed in an unsatisfactory participation status and recoupment of his bonus. 3. On 12 March 2011, he became an unsatisfactory participant after receiving his ninth unexcused absence from unit training assemblies for the period December 2010 through March 2011. 4. In April 2011, he presented documentation and evidence to his company commander of personal issues during his unexcused absences from December 2010 through March 2011. His company commander determined he would become a "recovered Soldier." 5. In June 2014, his company commander requested approval of an ETP from the USARC G-1 for reinstatement of his enlistment bonus, more than 3 years following his unexcused absences. 6. The advisory opinion from the USARC G-1 states his immediate chain of command recommended denial of reinstatement of his bonus due to lack of substantiating documentation to prove the unexcused absences were erroneous. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017959 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017959 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2