BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160002340 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: 19 September 2017 DOCKET NUMBER: AR20160002340 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: 19 September 2017 DOCKET NUMBER: AR20160002340 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 remission of her debt in the amount of $17,045.19 including interest and administrative fees. She also requests restoration of funds ($6,454.32) collected by the Internal Revenue Service (IRS) and a personal appearance before the Board. 2. The applicant states: a. She received a USAR reenlistment bonus to maintain her military occupational specialty (MOS) and job with the USAR while voluntarily deployed with the 847th Adjutant General (AG) Company in Minneapolis, Minnesota. In October 2007, she returned to the 320th AG Postal Company, her home unit located in Cincinnati, Ohio. She was told that her unit was dissolving and she was free to find any other home unit without regard to keeping her job because her unit dissolving was certainly beyond her control. Also, relocation may involve a change of MOS/job. b. She received an email from a sergeant first class who informed her that due to circumstances, regardless of where she went and what job she did, she would be able to keep her bonus. She chose to move to the U.S. Air Force (USAF) Reserve at Wright Patterson Air Force Base due to its close proximity to her home. She did a direct switch, therefore, completing her original enlistment of 6 years and by the time the switch was complete on 8 June 2008, she had already completed 1 year of her original reenlistment. She picked aeromedical evacuation technician as her job in the USAF Reserve. It carried a $20,000.00 enlistment bonus; but she was ineligible due to only having 5 years available instead of the required 6 years. c. Her husband also switched to the USAF for the same reasons, but returned to the USAR about 1 ½ years later. He was not required to repay his bonus. The applicant believes she should not have to repay her bonus and should be refunded the money already encumbered through the Treasury Offset Program (TOP). She finished her original 6 years in the Army as she promised. She had no control concerning the government’s decision to dissolve her unit. She missed out on a higher bonus and served her country for an additional 8 years. 3. The applicant provides: * DD Form 4/2 (Enlistment/Reenlistment Document) dated 1 May 2007 * DA Form 3540 Annex A, (Certificate and Acknowledgment of USAR Requirements and Methods of Fulfillment) dated 1 May 2007 (7 pages) * DA Form 3540, 1st, 2nd, and 3rd Continuation Pages for Reenlistment Bonus Addendum DA Form 5261-2R, dated 1 May 2007 * USAR Reenlistment Bonus Written Agreement, dated 1 May 2007 (3 pages) * DA Form 5261-4R (Student Loan Repayment Program (SLRP) Addendum) dated 1 May 2007 (4 pages) * DD Form 368 (Request for Conditional Release) dated 5 February 2008 * DD Form 4/1 (Enlistment/Reenlistment document) dated 11 July 2008 (3 pages) * Letter from the Defense Finance and Accounting Service (DFAS), dated 21 July 2009, to the applicant with enclosures (3 pages) * Letter from Department of the Treasury (DOT), Financial Management Service, dated 11 November 2014, to the applicant * Letter from DOT, Bureau of the Fiscal Service, dated 17 February 2015, to the applicant (2 pages) 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. On 13 March 2004, the applicant enlisted for 4 years in the USAR beginning as a private first class, pay grade E-3, based on her rank when leaving active duty in the U.S. Navy on 9 July 2003. 3. On 1 May 2007, the applicant reenlisted in the USAR for 6 years. Her DA Form 3540, dated 1 May 2007, indicates she completed two addenda, one for a $15,000.00 reenlistment bonus and one for the SLRP. 4. The applicant’s USAR Reenlistment Bonus Written Agreement, dated 1 May 2007, states if she were to be involuntarily transferred because of unit transition, her bonus entitlement would continue provided she maintained her MOS or requalified in a new MOS within 24 months. The document also required the applicant to initial the paragraph addressing the transfer as between the USAR and the Army National Guard (ARNG). The document did not contain any provisions for retaining her bonus based on a transfer to other than a component of the Selected Reserve of the Army. 5. The applicant’s DA Form 5261-4R, dated 1 May 2007, states that her SLRP would be terminated if she failed to remain a participating member of the Selected Reserve of the Army, either USAR or ARNG. 6. A DD Form 368, dated 5 February 2008, shows the applicant requested a conditional release from the USAR for the purpose of enlisting in the USAF Reserve. Her request was approved on 15 February 2008. 7. DD Form 4/2, dated 11 July 2008, shows the applicant enlisted in the USAF Reserve. 8. In a letter dated 21 July 2009, DFAS notified the applicant of her $14,375.00 debt to the U.S. Government due to recoupment of her reenlistment bonus. 9. In a letter dated 11 November 2014, the applicant was informed by the DOT that Department of Defense records showed she owed $16,638.16. She was advised that collection action would continue unless she paid, within 10 days from the date of the letter, $21,629.61, which included applicable fees, interest, and penalties. In a subsequent letter from DOT, dated 17 February 2015, she was informed that a Federal payment due to her was taken in the amount of $6,064.00 and applied to the debt discussed above. 10. In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer), wherein it was opined: a. The applicant had contracted for 6 years and received a $15,000.00 reenlistment bonus contingent upon her satisfactory participation in the USAR for the entire period. b. The contract provided for the possibility of being involuntarily transferred because of a unit reorganization, relocation, redesign, or conversion. However, such transfer would need to be with the ARNG c. The applicant offers no statement as to why she did not transfer to the ARNG other than to say Wright Patterson Air Force Base was closer to her home. d. The applicant’s decision resulted in her failure to fulfill the terms of the contract. e. The advisory opinion held that the applicant should repay the unearned portion of her reenlistment bonus. 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 Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNG and USAR incentive programs. Reenlistment or extension bonus entitlement will stop if the Soldier separates from enlisted status of the Selected Reserve unit of the ARNG or USAR for any reason. Recoupment of immediate reenlistment or extension bonus payments will be started by the unit commander when entitlement to such incentive is terminated by separation from the enlisted status of the Selected Reserve unit of the ARNG or USAR. 3. Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), section 0201 (General Provisions), provides that a member of the Uniformed Services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit. If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit. Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control. Conditions under which repayment will not be sought are set forth in section 0202. 4. Department of Defense Financial Management Regulation, volume 7A, chapter 2, section 0202 (Repayment and Non-repayment Conditions), provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control. In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, 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 based on one or more of the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States 5. Army Regulation 15-185 (ABCMR) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests, in effect, correction of her USAR military records by showing she is authorized to retain the reenlistment bonus received on 1 May 2007. She also requests reimbursement of any monies recouped, to include interest and penalties. 2. The applicant requested a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted. If the applicant is not satisfied with the results of the informal Board hearing, she may request reconsideration and provide new evidence that was not previously considered by the Board. 3. The available evidence in this case shows the applicant had contracted for a 6-year period to serve in the Selected Reserve of the Army, either the USAR or the ARNG. When her unit was dissolved, she requested conditional release for the purpose of enlisting in the USAF Reserve. As a result, she violated the conditions of her contract. 4. Absent a basis for showing she was authorized to retain her incentive, there would be no basis for restore any funds to her. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002340 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002340 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2