BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160002854 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: 4 January 2018 DOCKET NUMBER: AR20160002854 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: 4 January 2018 DOCKET NUMBER: AR20160002854 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 military records to show he was authorized his Selected Reserve Reenlistment Bonus (SRB), the cancellation of the recoupment action pertaining to his reenlistment bonus, and notification of this correction to all credit bureaus. 2. He states, in effect, he satisfactorily met the terms of his SRB by completing the 72-month period of service in the U.S. Army Reserve (USAR). However, on 30 June 2011, the Defense Finance and Accounting Service (DFAS) began recoupment of a portion of his bonus. He contends that the debt is in error and that he is authorized a refund. 3. He provides: * Pay Transaction Logs * DA Form 2-1 (Personnel Qualification Record) * DA Form 5016 (Chronological Statement of Retirement Points) * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) * DD Form 4 (Enlistment/Reenlistment Documents-Armed Forces of the United States), dated 31 August 1998 with allied documents * Orders 295-0292, dated 22 October 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 30 November 2003 * Orders 06-228-0004, dated 16 August 2006 * Orders 12-208-00039, dated 26 July 2012 * Proposed Involuntarily Separation Memorandum, dated 26 July 2012 * DFAS letter, dated 14 December 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. On 29 August 2006, the applicant reenlisted in the USAR for a period of 6 years with an effective date of 31 August 2006. His expiration term of service (ETS) is listed as 30 August 2012 on his DD Form 4. 3. On the same day, he completed a DA Form 5261-2-R (Selected Reserve Incentive Program (SRIP) – Reenlistment/Extension Bonus Addendum), which indicates he would receive a reenlistment bonus not to exceed $15,000. This form shows in: a. Section VI (Suspension) – If an individual enters a period of service where favorable personnel actions on his behalf are suspended, entitlement to subsequent bonus payment will also be suspended. If otherwise eligible, the individual will be entitled to receive bonus payments when the suspension has been favorably lifted. b. Section VII (Termination) - The reenlistment/extension cash bonus would terminate should the applicant become an unsatisfactory participant before the fulfillment of his reenlistment agreement. 4. He was honorably discharged on 28 August 2012. The complete circumstances of his discharge are not available in his Official Military Personnel File (OMPF); however, the applicant provides: a. A certificate of completion from the Substance Abuse Residential Rehabilitation Treatment Program on 10 February 2009. b. His SRIP Adjustment Worksheet, dated 23 May 2011. This document shows the applicant completed 27 months of satisfactory service and that his bonus was terminated for unsatisfactory participation. Item 12 (Remarks) of this form contains the entry “SM came up hot on urinalysis and was flagged on 8 December 2008. SM only performed 27 satisfactory months on enlistment contract. Please terminate bonus.” c. Two DA Forms 268, which show he was flagged for adverse action on 2 December 2008 and the flag was removed effective 18 May 2012 as the result of disciplinary action being taken. d. Pay Transaction Logs covering 2006 through 2012. e. His DA Form 5016, dated 15 February 2017, which shows that between 31 August 1998 and 28 August 2012, he completed 14 qualifying years for the purpose of retirement. f. A DFAS letter, dated 14 December 2015, validating the applicant’s U.S. Government total debt of $9,375.00 and a remaining debt of $6,098.66 due to recoupment of his reenlistment bonus based on unsatisfactory participation. 5. In the processing of this case, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer) provided an advisory opinion. This official found the termination and recoupment of the unearned portion of the bonus based on the applicant’s unsatisfactory participation after 27 months in the program was appropriate. 6. The applicant responded to the advisory opinion of 24 March 2017 and he argued that: * he completed the terms of his contract * his separation processing was repeatedly mishandled and delayed * he had satisfactory participation and he was never counseled by his command * he should have been protected by the “Limited Use Policy” because he sought treatment on his own through the Lexington, KY, Veterans Hospital * he was inappropriately flagged as adverse action (Flag Code A) from 8 December 2008 until 19 May 2012 but should have been flagged as drug abuse adverse action (Flag Code U) * he was demoted as the result on 11 April 2010, exceeding the 30 duty day regulatory requirement * the statute of limitations was exceeded in regards to his nonjudicial punishment 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: a. will be suspended if Soldiers who have a suspension of favorable personnel actions initiated per AR 600-8-2 and the bonus will not be processed for an initial or anniversary payment. Bonus payment(s) will be processed effective on the date the suspension is lifted for those soldiers who have continued eligibility. b. will be stopped once a Soldier is declared ineligible, termination of SRIP will not affect a soldier's responsibility to serve his or her current statutory or contractual service commitment. 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 his USAR military records to show he was authorized to retain the reenlistment bonus effective 31 August 2006. He also requests reimbursement of any monies recouped and notification to all credit bureaus. 2. The applicant contracted for a 6-year period to serve in the USAR effective 31 August 2006. On 8 December 2008, he was flagged as the result of a positive urinalysis. As a result, his bonus was terminated due to unsatisfactory participation and recoupment action was initiated. He was honorably discharged on 28 August 2012, two days prior to the completion of his service obligation. 3. The pay records and chronological statement of service provided by the applicant appear to show that he continued to drill during the period he was flagged and as such, he had satisfactory participation in the USAR. However, his SRIP agreement and regulatory guidance state that a Soldier is not entitled to payment of a bonus while under suspension of favorable actions. In this case, he received a lump sum payment of his bonus. When he was flagged on 8 December 2008, the appropriate course of action was to terminate the bonus with recoupment giving him credit for 27 months of satisfactory participation prior to the flagging action. The unsatisfactory participation reason for termination appears to be in error, but he was clearly not entitled to payment during the period of his flag. 4. Further, termination of a bonus does not affect a Soldier's responsibility to serve his or her current statutory or contractual service commitment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002854 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002854 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2