IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004763 BOARD VOTE: ___X____ ___X __ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004763 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by cancelling recoupment of the incentive he received under the Selected Reserve Incentive Program (SRIP) and returning to him all payments he has made on the debt associated with the incentive. ____________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. IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160004763 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 does not have an enlistment bonus debt, stop recoupment efforts, and the return of payments he made as a result of the recoupment action. 2. The applicant states, in effect: a. Per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions), paragraph 5-2 b(2), he received a calling from his church to serve a religious mission in which his church certified the existing obligation and furnished an address where he could be reached. b. His commanding officer submitted his recommendation. He received developmental counseling from his noncommissioned officer (NCO). He submitted his election to serve a religious mission. c. His religious service ended after a year, due to him developing schizoaffective disorder. He resumed his military service and reported his illness. Per military request, his physician submitted a medical review. A physical evaluation board (PEB) determined he should be discharged. d. He received orders for an honorable discharge. He served with integrity during his military service. His missionary service was valid and he met all obligations prior to that service and afterwards. He does not qualify for the debt. 3. The applicant provides: * excerpts from Army Regulation 153-91, dated 1 February 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 December 2009 * letter from The Church of Jesus Christ of Latter-Day Saints, addressed to his commander, dated 4 March 2010 * memorandum for record (MFR) from his commander, dated 10 April 2010 * DA Form 4856 (Developmental Counseling), dated 11 April 2010 * self-authored statement, dated 11 April 2010 * Defense Finance and Accounting Service (DFAS) debt notice, dated 4 January 2011 * medical doctor's diagnosis, dated 23 February 2012 * DA Form 199 (Informal PEB Proceedings), dated 6 December 2012 * letters of support, dated 1 June, 7 June, and 11 June 2013 * DA Form 199-1 (Formal PEB Proceedings), dated 14 June 2013 * memorandum from the U.S. Army Physical Disability Agency (PDA), dated 12 July 2013 * Orders 13-225-00071, issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI on 13 August 2013 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 29 December 2008. He was obligated to complete 8 years of service in the U.S. Armed Forces, which included 6 years as an assigned member of a troop program unit (TPU) in the USAR and 2 years as an assigned member of the Individual Ready Reserve (IRR). 2. The applicant signed an Enlistment Bonus Addendum on 29 December 2008. The addendum applied to all persons enlisting in the USAR with concurrent assignment to a TPU for cash bonus entitlement under the Selected Reserve Incentive Program (SRIP). The addendum shows he enlisted and agreed to serve 6 years for the following: * unit identification code (UIC) – WRR6C0 * TPU – Company C, 405th Civil Affairs Battalion, Pleasant Grove, UT * military occupational specialty (MOS) – 38B (Civil Affairs Specialist) * non-prior service enlistment bonus (NPSEB) in the amount of $20,000 3. The bonus addendum shows his entitlement to the NPSEB would be terminated should he fail to extend his USAR contracted term of service to compensate for a period on non-availability. The bonus addendum also shows that failing to meet his obligation could result in recoupment action unless the separation was due to death, injury, illness, or other impairment not the result of his own misconduct. 4. The applicant was ordered to active duty for initial entry training (IET) on 21 July 2009. His DD Form 214 shows he completed IET and was awarded MOS 38B. He was released from active duty on 17 December 2009 and returned to the control of his TPU. 5. Orders 10-222-00019, issued by Headquarters, 88th Regional Support Command on 10 August 2010, show the applicant was released from his assignment with the 405th Civil Affairs Battalion by reason of religious obligations (missionaries, theological students). He was assigned to the Standby Reserve (Active Status List) effective 9 September 2010. 6. The applicant received a debt notice from DFAS requesting payments for the recoupment of a portion of his SRIP bonus. The debt notice shows: * he was paid $10,000 of a $20,000 bonus agreement * he was credited with completing 21 months of his obligation equaling $5,833.33 * a total amount of $4,166.67 was being recouped 7. The 21 months he received credit for toward the bonus obligation covered the period 29 December 2008 (his enlistment date) through 8 September 2010 (day prior to beginning the period of non-availability). 8. Orders C-07-110437, issued by the U.S. Army Human Resources Command (HRC) on 21 July 2011, show the applicant was voluntarily released from the Standby Reserve (Active List) and assigned to the USAR Control Group (Annual Training) (an element of the IRR) effective that same day. 9. Orders C-08-110933, issued by HRC on 3 August 2011, show the applicant was voluntarily released from the IRR and was assigned to Company B, 405th Civil Affairs Battalion, Pleasant Grove, UT, effective 29 July 2011. In addition, the orders show he had an expiration of term of service (ETS) date of 20 July 2017, which was 6 months and 23 days past his original ETS date of 28 December 2016. 10. The applicant was found physically unfit for military service by both an informal and a formal PEB, which convened on 6 December 2012 and 14 June 2013, respectively. 11. Orders 13-225-00071, issued by Headquarters, 88th Regional Support Command on 13 August 2013, show the applicant was honorably discharged from the USAR effective 14 September 2013. The Additional Instructions in this order read: Loss reason JA (medically disqualified not as a result of his own misconduct) due to no fault of the Soldier. Terminate incentives, no recoupment. Unit of assignment must submit order to USAR Pay Center Bonus Team. 12. The applicant's record is void of evidence that shows he extended his ETS date within 90 days of returning from the authorized period of non-availability to cover his period served on the religious mission. However, his ETS was changed from 28 December 2016 to 20 July 2017, which constitutes an extension of 6 months and 23 days. 13. The applicant's record contains no evidence that shows he requested a waiver of his debt recoupment through his chain of command prior to his separation from service. In addition, there is no evidence his unit of assignment submitted his separation order to the USAR Pay Center Bonus Team as directed. 14. The applicant provides a self-authored statement, dated 11 April 2010, in which he states, in effect, to his commanding officer: a. He elected to serve a two year religious mission in London, England. He anticipated to begin missionary service on or about 9 July 2010, and conclude the service in July 2012. b. He would complete an oath of extension upon his return to cover the duration of his absence on the religious mission in order fulfill his service obligation. 15. In the processing of this case, an advisory opinion was obtained on 14 August 2017, from the Chief, Manning Division, USAR Command (USARC). The advisory official noted and opined: a. Their records indicate the applicant was voluntarily transferred to the Standby Ready Reserve on 9 September 2010 for religious obligations, which is an authorized period of non-availability in accordance with Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program). However, upon completion of any approved period of non-availability the governing regulation requires Soldiers to return to an incentive-authorized unit or position and extend to cover the previously approved period of non-availability within 90 days of returning to an active drilling status. b. Although he returned to an active drilling status, the USARC G-1 has no record that he ever executed a DA Form 4836 (Oath of Extension) extending his obligation. Therefore, the USARC G-1 has no authority to grant relief in this case. Despite the evidence, the USARC G-1 recommends the Board look favorable upon his satisfactory performance throughout his service and approve his application. 16. The applicant was provided a copy of this advisory opinion on 21 August 2017, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: Army Regulation 601-210 (Active and Reserve Components Enlistment Program), as in effect at that time, prescribes eligibility criteria governing the enlistment of persons, with or without prior service into the Regular Army (RA), the USAR, and the Army National Guard. It provides policies and procedures to process applicants for enlistment in the RA Delayed Entry Program and on delayed status, and the USAR Delayed Training Program. a. Paragraph 10-3t(7) (Termination of Incentives) provides incentive eligibility will be stopped when he/she fails to extend the contracted term of service for an authorized period of non-availability and that member shall not be eligible to receive any further incentives payments (except for service prior to the termination date). Once declared ineligible, the termination is effective the date the Soldier began the period of non-availability. b. Paragraph 10-3v (Recoupment of Incentives) provides when relief is not granted through the waiver process from incentives received, the member must refund a pro-rata amount to the Government. Commanders are responsible for initiating recoupment procedures whenever a member's eligibility to an incentive is terminated and recoupment is required. When a commander is not in the chain of command over the Soldier, the incentives program manager will initiate recoupment procedures. Commanders will not recoup when the termination is due to death, injury, illness, or other impairment not the result of own misconduct. DISCUSSION: 1. The applicant requests correction of his records to show he does not have an enlistment bonus debt and the return of payments he made as a result of recoupment procedures. 2. The applicant enlisted in the USAR for eight years. He signed a bonus agreement to serve six years in a bonus TPU and a bonus MOS. 3. While serving the six year period of obligated service, he requested an absence to perform a religious mission for approximately two years. He confirmed to his commanding officer that he would extend his length of service to compensate for the two year absence upon return from the period of non-availability. The evidence of record shows he did not complete two years of missionary service but instead returned to his unit in less than a year. 4. DFAS notified him recoupment of a portion of his bonus was due during his period of non-availability. There is no evidence he requested a waiver of the debt through his chain of command. 5. The applicant was found physically unfit for military service by a PEB. He subsequently was honorably discharged as a result of his medical condition. The additional instructions on his separation orders stated his loss reason was due to no fault of the Soldier and the orders instructed that his incentives would be terminated with no recoupment. Nevertheless, the applicant contends a recoupment action took place and he has made payments. 6. The applicant's contract stated his bonus entitlement would terminate if he was unable to complete his service obligations; however, the contract also stated there would be no recoupment action if the separation was due to death, injury, illness, or other impairment not the result of his own misconduct. 7. A USARC G-1 advisory official recommended the Board look favorably upon his satisfactory performance throughout his service and approve his application. 8. The termination and recoupment of his incentive were not in accordance with the governing regulation. The actions started before he had the opportunity to return from his period of non-availability and extend his service obligation. The recoupment action, as supported by the governing regulation, his contract, and his separation orders, appears to have occurred in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004763 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004763 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2