BOARD DATE: 13 February 2018 DOCKET NUMBER: AR20160000056 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. 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 February 2018 DOCKET NUMBER: AR20160000056 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :GLK :JJN :DJH DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 February 2018 DOCKET NUMBER: AR20160000056 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: a. correction of his records by removing a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) from his official military personnel file (OMPF); b. an exception to policy (ETP) to retain his eligibility for the Student Loan Repayment Program (SLRP) incentive; and c. retroactive promotion to the rank/grade of specialist (SPC)/E-4, effective 15 September 2012, with back pay and allowances. 2. The applicant states: a. After returning from advanced individual training (AIT), he was given an Army Physical Fitness Test (APFT); however, at the time, he was on a profile from an injury he sustained in AIT. The date of his line of duty (LOD) and profile precede the failed APFTs, which should make the failures erroneous. His LOD was not released until after the failures; therefore, he had no documentation or profile verifying his injury. b. Upon receipt of the LOD, he was able to receive a surgical consultation and a permanent profile due to complications from the surgery he received during AIT. Once administered a correct APFT in accordance with his profile, he passed the APFT. Due to the erroneous APFTs, he was flagged and was therefore ineligible for promotion, bonuses, and SLRP. c. He has been pursuing correction of these errors/injustices since they first occurred. However he did not have a complete case for the Board to consider without the supporting documentation, dates, and records. 3. The applicant provides numerous medical documents and the following: * DA Form 268, dated 14 July 2012 * DA Form 4856 (Developmental Counseling Form), dated 2 August 2012 * DA Form 705 (APFT Scorecard), dated 21 October 2012 * DA Form 3349 (Physical Profile), dated 15 March 2015 * APFT History Scores, printed on 26 May 2015 * Enlisted Record Brief, dated 12 June 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. The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) on 14 September 2010 for a period of 8 years. In conjunction with his enlistment he executed and signed an Enlisted Loan Repayment Program (ELRP) addendum (now known as SLRP). He acknowledged, in pertinent part: a. Section II (Eligibility): (1) "I am a Non-Prior Service applicant enlisting in a MTOE/AVCRAD/RTI/SF or Medical TDA or deploying TDA WPN5 (UIC) for a term of service of not less than 6 years in the Army National Guard of the United States." He placed his initials in this section. (2) He had 7 disbursed loans existing in the amount of $17,125. The total amount of repayment for qualifying loan(s) will not exceed $50,000. b. Section IV (Suspension): He understood that he may be suspended from Student Loan Repayment Program (SLRP) eligibility if he were flagged for an adverse action. c. Section V (Termination): He understood that he may be terminated from bonus eligibility if he received two consecutive record APFT failures or two consecutive failures to meet body fat. 3. A review of the applicant's official military personnel record is void of a Non-Prior Service Enlistment Bonus (NPSEB) addendum or agreement. 4. While on active duty for training, he was treated for a hernia at Reynolds Army Community Hospital, Fort Sill, Oklahoma on 7 June 2011. 5. The applicant was promoted to the rank/grade of private first class/E-3 on 15 February 2011. 6. An APFT history shows he took the APFT on the following dates, wherein he achieved the following results: * 24 October 2010 - failed record APFT * 14 July 2012 - failed record APFT * 15 September 2012 - failed record APFT * 21 October 2012 - failed record APFT 7. A DA Form 268, dated 14 July 2012 shows he was flagged for APFT failure. He was counseled on 2 August 2012, and advised of his next scheduled APFT. 8. The applicant received a Periodic Health Assessment (PHA) on 28 October 2012 wherein he was determined to be fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). 9. The applicant was placed on a temporary physical profile during the following periods: * 23 April 2013, limited to 3 month durations * 12 August 2013, limited to 3 month durations * 27 October 2013, limited to 3 month durations * 15 February 2014, limited to 3 month durations 10. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 April 2013 confirms his hernia injury was incurred in the LOD while in an active status. 11. The applicant was placed on a permanent physical profile on 15 March 2015. He was promoted to the rank/grade of SPC/E-4 on 18 May 2015. 12. An NGB Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably discharged from the ARNG and as a Reserve of the Army on 13 September 2016. 13. In the processing of this case, an advisory opinion was obtained on 4 October 2017, from the Chief, Special Actions Branch, National Guard Bureau (NGB). The advisory official recommended partial approval and opined: a. On 7 June 2011, the applicant was surgically treated for a hernia at Reynolds Army Community Hospital at Fort Sill, Oklahoma. He was placed on convalescent leave and instructed to coordinate for follow-on treatment. At the Soldier's PHA on 2 February 2012, notes indicate that he discussed his surgery with the medical provider, and the provider notes that he had "complete recovery, no current issues." Five months later, his unit administered him an APFT and he failed. Thus, on 14 July 2012, the commander approved a DA Form 268 to flag him. Then, on 28 December 2012, a LOD was opened. On 23 January 2013, the Soldier conducted his PHA and discussed his surgery with the medical provider. The provider notes that he still has "occasional pain," "needs further treatment," and should be "restrictive with physical activity." On the same day, another provider administered him a temporary profile for recovery from the hernia, and disapproved capability to take an APFT. b. In accordance with Training Circular 3-22-20 (Army Physical Readiness Training), if a Soldier becomes ill or injured during the APFT, or fails to meet the minimum standards, they will be considered a test failure. Furthermore, In accordance with Army Regulation 600-8-2 (Suspension of Flag) and Army Regulation 350-1 (Army Training and Leader Development), failure to pass the annually required APFT for Troop Program Unit Soldiers requires them to be flagged, and Soldiers not on active duty and without a medical profile will be given up to 180 days to prepare for re-testing. c. In accordance with Department of Defense Instruction (DoDI) 1205.21 (Reserve Component Incentive Programs Procedures) incentives will be terminated if the Soldier fails to participate in required training during the service period, unless it was due to reasons beyond the Soldier's control (such as injury or illness). Additionally, a single APFT failure will result in suspension of the incentive and consecutive failures will result in termination of the incentive (Army Regulation 601-210 (Active and Reserve Components Enlistment Program)). d. The applicant contests the APFT and flag from July 2012 as erroneous. However, he was not on profile at the time and – given his 2012 PHA – it can be presumed that he was in sufficient health to pass the test. There is insufficient evidence to prove that either APFT or the flag are erroneous. Furthermore, since the flag was emplaced in accordance with regulations, the request for retroactive promotion is not valid. e. Regarding his request for repayment of subscribed incentives, he qualifies to receive SLRP and a Non-prior Service (NPS) Bonus. The persistent existence of the APFT flag for 3 years is of no fault of his, as he was seeking and receiving medical treatment consistently from January 2013 through his discharge in 2016. He did not meet the regulatory criteria to suspend or terminate the incentives. The Soldier should receive SLRP for fiscal years not presently received. f. The NGB Office of the Chief Surgeon and Incentives Branch both concur with this recommendation. The PAARNG concurs with this recommendation. 14. The advisory opinion was provided to the applicant on or about 10 October 2017, for informational purposes and to afford him the opportunity to provide rebuttal comments. He did not respond. REFERENCES: 1. ARNG Selective Reserve Incentives Program (SRIP) Policy Number 10-01, dated 20 January 2010, for Fiscal Year 2010, stated, in part, a Soldier with contracts executed after 1 March 2009, and with two consecutive record APFT failures within the contract term, would have his/her SRIP bonus terminated and recouped. 2. DoDI 1205.21 prescribes procedures for incentive programs. Section 6.2 (Written Agreements) states, in part, as a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating 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. 3. Army Regulation 350-1, Appendix G (Army Training Programs), paragraph G–9m(6), states Soldiers who fail a record APFT for the first time or fail to take a record APFT within the required period will be flagged. In the event of a record test failure, commanders may allow Soldiers to retake the test as soon as the Soldier and the commander feel the Soldier is ready. Soldiers without a medical profile will be retested no later than 90 days following the initial APFT failure. Reserve Component Soldiers not on active duty and without a medical profile will be tested no later than 180 days following the initial APFT failure. 4. Army Regulation 601-210, states in paragraph 10-6b that repeat APFT failures or failures to meet body fat standards within a one-year period will result in the suspension of an incentive. Two consecutive APFT or body fat standard failures will result in the termination of an incentive. DISCUSSION: 1. The applicant contends he was flagged due to an erroneous APFT, which was administered while he was on a profile from an injury. He further contends he should be promoted retroactively to SPC/E-4 effective 15 September 2012. 2. The evidence of record confirms the applicant was not on a profile at the time of his APFT failure. He had been cleared by a medical provider during his PHA, approximately five months prior to his APFT. In accordance with governing Army regulation, he was flagged following his APFT failure on 14 July 2012. He had two subsequent failures and was placed on a temporary profile almost a year later. On 15 March 2015, he was placed on a permanent profile and was promoted to SPC on 18 May 2015. The applicant was honorably discharged on 13 September 2016. 3. The applicant requests an ETP to retain his SLRP incentive. The addendum signed and acknowledged by the applicant shows he was aware that two consecutive APFT failures would constitute a violation of his contract resulting in termination of incentive benefits. An NGB advisory official recommends approval of the applicant's request to retain his SLRP incentive. 4. The advisory opinion did not note that the applicant had three consecutive APFT failures in violation of his contracted agreement. There appears to be no error or injustice in regard to his flag action, termination of his incentive without recoupment, or for retroactive promotion to SPC. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160000056 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000056 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2