BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160004278 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Showing the applicant served in the U.S. Army Reserve satisfactorily for bonus purposes from 14 July 2010 - 8 January 2012. b. Showing he is entitled to that portion of his Officer Accession Bonus earned during his period of satisfactory service. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application in excess of the above. 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: 24 April 2018 DOCKET NUMBER: AR20160004278 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160004278 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 reversal of the denial of an exception to policy (ETP), dated 28 January 2016, to allow him to keep his Officer Accession Bonus (OAB). 2. The applicant states: a. He was told by the 1394th Transportation Brigade at Camp Pendleton in 2011 that if he transferred to the Individual Ready Reserve (IRR) he could file for financial difficulty to receive an exception for the bonus that he received on 12 December 2010 or return to the troop program unit (TPU) status later when his work schedule conflict was resolved to retain the bonus. b. After 4 years, he returned to TPU status on 18 February 2015 with the 393rd Military Police (MP) Battalion in Bell, CA. He was informed by the Defense Finance and Accounting Services (DFAS) that a proof in the form of an order was necessary to remove the bonus debt that had accrued over the years. He was told by DFAS that if the proper documents were submitted and the change to TPU status was confirmed, his bonus debt would be resolved. There was no mention of any time limit for his return to a TPU status throughout his period in the IRR. He submitted the necessary documents to have the debt issue removed but he was notified by DFAS that the debt was valid. He was misinformed and needs assistance to have the bonus issue resolved. Because of his current financial situation, he cannot pay back the debt that has accrued. 3. The applicant provides no additional evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. On 14 July 2010, the applicant signed a Written Agreement - OAB Acknowledgement. According to the OAB Acknowledgement the applicant: a. Agreed to accept an appointment as an officer to serve in the Selected Reserve in a critical officer skill that was designated for bonus entitlement by the Secretary of the Army. b. Agreed to serve in the Selected Reserve for 6 years, the full period of the agreement. c. Agreed to serve satisfactorily for the complete period in the Selected Reserve of the U.S. Army Reserve (USAR) according to his written agreement and in the critical skill in which accessed, unless excused for the convenience of the government. d. Acknowledged he would receive a bonus of $10,000, paid in one lump sum upon his successful completion of the Officer Basic Course. The bonus was to accrue beginning on the date the agreement was accepted by the Secretary of the Army. e. Acknowledged if he failed to complete the service obligation incurred under his agreement by failing to participate satisfactorily in training or duty with the Selected Reserve during the entire period of service obligation, his bonus entitlement would be terminated. Recoupment would be computed by multiplying the number of months he had served satisfactorily during the term for which his bonus had been paid by the monthly rate authorized by the particular bonus. 2. On 9 December 2010, the applicant was appointed a Reserve commissioned officer in the rank of captain. 3. U.S. Army Human Resources Command (HRC) Orders C-12-017897, dated 10 December 2010, assigned the applicant to the USAR Control Group (Reinforcement), effective 9 December 2010. 4. HRC Orders C-01-100894, dated 20 January 2011, assigned the applicant to the 1394th Transportation Brigade, Camp Pendleton, CA, effective 8 January 2011. 5. On 8 April 2011, the applicant completed the Chaplain Basic Officer Leadership Course. 6. There are no orders in the applicant’s official military personnel file (OMPF) assigning him back to the USAR Control Group (Reinforcement). 7. HRC Orders C-02-502545, dated 20 February 2015, reassigned the applicant from the USAR Control Group (Reinforcement) to the 393rd MP Battalion, Bell, CA. 8. On 28 January 2016, Headquarters, U.S. Army Reserve Command (USARC), denied the applicant's request for an ETP. a. The applicant was counseled by the USAR Career Counselor on 2 February 2012 that his benefits would be terminated upon separation from a TPU. b. The applicant was transferred to the USAR Control Group for the period 1 March 2013 - 18 February 2014 for unresolvable employment conflict. "Unresolvable employment conflict" is not an authorized period of nonavailability. 9. HRC Orders D-03-706227, dated 7 March 2017, discharged the applicant from the USAR. 10. On 22 March 2018, an advisory opinion was received from USARC. a. The applicant's OAB was terminated on 9 January 2012 for unsatisfactory participation. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), chapter 10 (Selected Reserve Incentive Program (SRP), stated termination of eligibility for an incentive would occur if a Soldier became an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures). Army Regulation 135-91 stated Soldiers would be charged with unsatisfactory participation when they accrued in any 12-month period a total of 9 or more unexcused absences from scheduled inactive duty training periods. The applicant accrued 26 unexcused absences from 5 November 2011 to 17June 2012. b. The applicant voluntarily transferred to the IRR on 1 March 2013 for "unresolvable employment conflict.” When he applied for the voluntary IRR transfer, he signed a DA Form 4856 advising him the many benefits he had as a member in the Army Reserve would terminate upon separation from a TPU. Chapter 10 of Army Regulation 601-210 allows for the suspension of incentives for approved transfers to the IRR for personal reasons for up to 1 year. The applicant was in the IRR for 1 year, 11 months, and 17 days. Nonavailability in excess of the maximum period authorized was cause for termination of incentive eligibility. c. If the applicant is able to provide proof that 18 of the 26 unexcused absences were approved, the USARC G-1 recommends that the board change the effective date of termination to 1 March 2013. REFERENCES: 1. Army Regulation 601-210, Chapter 10, in effect at the time, stated: a. Incentive eligibility was stopped when a Soldier became an unsatisfactory participant per Army Regulation 135-91 and that member was not eligible to receive any further incentive payment, except for service performed before the termination date. The termination date entered into the personnel data reporting systems was the date the Soldier was declared an unsatisfactory participant. b. Recipients of an incentive were suspended from the program during authorized periods of nonavailability due to an approved transfer to the IRR for cogent personal reasons for a maximum period of 1 year. The term "cogent (clear, logical, and convincing) personal reasons" is not further defined in the regulation. c. Nonavailability in excess of the maximum period authorized was cause for termination of incentive eligibility. d. Except under extraordinary circumstances, only one suspension of nonavailability was granted or imposed. 2. Title 37 U.S. Code (USC), section 308j(b), states in: a. Paragraph (1) the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to (A) accept an appointment as an officer in the Armed Forces, and (B) to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement. b. Paragraph (2)(A) the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction the officer skills to which the authority under this subsection is to be applied. c. Paragraph (3) an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned. 3. Title 37 USC, section 308j(c) states an agreement entered into with the Secretary concerned under this section shall require the person entering into that agreement to serve in the Selected Reserve for a specified period. ?The period specified in the agreement shall be any period not less than 3 years that the Secretary concerned determines appropriate to meet the needs of the reserve component in which the service is to be performed. DISCUSSION: 1. The applicant initially met all of the requirements outlined in his OAB Written Agreement to receive his OAB in the amount of $10,000. 2. The USARC advisory opinion stated the applicant's OAB was terminated on 9 January 2012 for unsatisfactory participation based on his accruing 9 or more unexcused absences from scheduled inactive duty training periods in a 12-month period. 3. There are no orders in the applicant's OMPF reassigning him from the 1394th Transportation Surface Brigade to the USAR Control Group. However, USAR Command's ETP denial states the applicant's period of nonavailability was from 1 March 2013 - 18 February 2015. 4. Army Regulation 601-210 states a period of nonavailability was authorized for a maximum period of 1 year due to a transfer to the IRR for cogent personal reasons. Specific cogent personal reasons were not defined in the regulation. 5. The applicant was in the IRR for a period exceeding the 1 year maximum allowed for nonavailability for personal reasons. 6. The applicant satisfactorily served from 14 July 2010, the date his OAB Agreement was accepted, to 8 January 2012, the date before his OAB was terminated due to his becoming an unsatisfactory participant. If he provides evidence that 18 of the 26 unexcused absences were excused, his satisfactory service would be until 1 March 2013, the date USARC stated he transferred to the USAR Control Group. 7. Based on the provisions of the applicant's OAB Written Agreement, he is only entitled to that portion of his OAB earned prior to the termination of his OAB due to becoming an unsatisfactory participant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004278 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004278 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2