BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160005493 BOARD VOTE: _________ _______ ________ 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: 10 August 2017 DOCKET NUMBER: AR20160005493 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 and Army National Guard records of the individual concerned be corrected by: a. showing the applicant's request for an exception to policy to retain the $5,000.00 reenlistment bonus was partially approved, b. prorating recoupment action by calculating her earned incentive (the months she complied with her REB contract), c. reimbursing her the earned incentive, if recoupment was initiated by the State or Defense Finance and Accounting 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 that pertains to granting her full relief by allowing her to retain the full amount of her reenlistment bonus ($5,000.00). ____________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: 10 August 2017 DOCKET NUMBER: AR20160005493 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 an approved exception to policy (ETP) to retain her reenlistment bonus (REB) and cancellation of recoupment action. 2. The applicant states she contracted for and received a $5,000.00 REB for a 6-year term of service in military occupational specialty (MOS) 15P (Flight Operations Specialist) in the Wisconsin Army National Guard (WIARNG). She contends that on 29 May 2014, after serving approximately 38 months in her contracted MOS, she voluntarily transferred out of her contracted MOS into another unit for experience in MOS 15T (UH-60 Air Crewmember). It was her intent to enhance her career. a. She was informed by State personnel that her REB would be recouped because she was in violation of Department of Defense (DOD) Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), paragraph 6.6.2. She had transferred out of her contracted MOS which is a violation of policy. b. In coordination with the WIARNG Education Services Officer, she submitted an ETP to the National Guard Bureau (NGB) requesting relief of recoupment for the 38 months she remained in her contracted MOS. Her ETP was denied by NGB because she voluntarily transferred out of her contracted MOS. c. On 22 July 2015, she was placed in a medical hold status due to a lower back and spine medical condition. She was not able to perform the duties of MOS 15T due to physical limitations imposed on her by her doctor and physical therapist. d. In October 2015, she was removed from MOS 15T duties and responsibilities and by January 2016 she was transferred back into her contracted MOS 15P. With this transfer, she is now fulfilling the duties of her contracted MOS 15P and fulling her original 6-year REB contract. e. She requests the Board grant her an ETP. She recommends full relief from the recoupment action or approve the recoupment for the period she was not fulfilling the duties of MOS 15P. 3. The applicant provides: * various military orders * NGB Form 600-7-3-R-E (REB Addendum), dated 30 March 2011 * Memorandum, Joint Force Headquarters (JFH) Detachment, dated 16 January 2015 * DA Form 3349 (Physical Profile) dated 26 August 2015 * Memorandum, NGB, dated 9 November 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the WIARNG on 24 February 2006 and was trained in MOS 15P. 2. On 30 March 2011, the applicant contracted for a REB which established her new expiration of term of service as 29 March 2017. Her contract contains bonus control numbers and is signed and dated by the applicant and the reenlistment official and service representative. The conditions of her contract were: a. she was duty MOS qualified for the position for which she was reenlisting and held the rank and grade commensurate with the vacancy; b. she would serve satisfactorily for the entire period of her enlistment to include maintaining medical and dental readiness unless the failure to participate satisfactorily was due to reasons beyond her control; c. she was obligated to serve in the same Military Department and in the same skill for which the bonus was approved, unless excused for the convenience of the Government; and d. her REB would be terminated with recoupment in accordance with National Guard Regulation 600-7 (Selected Reserve Incentive Programs). One such condition is failure to maintain medical and dental readiness during the entire period of the enlistment unless failure was due to reason beyond her control (i.e., injury, illness or other impairment). Another condition requiring recoupment was voluntarily transferring into a noncontracted MOS or unit. 3. Orders 149-1008, JFH Wisconsin Forces, dated 29 May 2014, announced the applicant’s voluntary transfer to Company A, 1st Battalion, 147th Aviation, WIARNG, to a UH-60 Crewmember position (MOS 15T), effective 18 April 2014. This order shows she was not duty position qualified. 4. On 18 March 2015, the applicant submitted a written ETP memorandum to retain her REB stating the reason for transfer was to enhance her career in the WIARNG. She requested relief from recoupment for 38 months of service (the months she served in her contracted MOS). Her company commander supported her request stating that the unit had encouraged the applicant to transfer to the Flight Company because the MOS 15T position would allow her more opportunities to progress her career, as well as, provide much needed experience to the unit. He stated State policy did not allow her to be involuntarily transferred to gain experience so she voluntarily transferred out of her contracted MOS 15P. 5. On 9 November 2015, NGB denied her ETP request and notified the WI State Incentive Manager that the incentive would be terminated with recoupment effective the date of her voluntary transfer. She violated DODI 1205.21, paragraph 6.6.2 when she voluntarily transferred to another unit and MOS. The NGB official further stated they did not have the authority to grant an ETP and recommended she seek relief through the Army Board for Correction of Military Records. 6. On 29 January 2016, the JFH -WIARNG, issued Orders 029-1004, directing her involuntarily transfer from the UH-60 crew chief position (MOS 15T), to the aviation operations sergeant position (MOS 15P) with the 1st Battalion, 147th Aviation, effective 11 January 2016. 7. The applicant provided additional evidence to support her application. On 22 September 2015, she was informed by memorandum that she was under WIARNG medical care case management for her back condition. She received instructions and complied with them resulting in the State issuing her a permanent profile (DA Form 3349) for chronic low back pain. She receive a "2" for her lower extremities and was authorized an alternate Army Physical Fitness Test that did not include running or sit-ups. REFERENCES: 1. National Guard Regulation 600-7 governs incentive policies, procedures, and eligibility criteria for persons entering into an incentive agreement at the time of enlistment, affiliation, reenlistment, extension, commission or appointment in the ARNG. Under the provisions of Title 37, U.S. Code, section 308b an enlisted member of the Selected Reserve who has completed less than 20 years of total military service and who voluntarily reenlists or extends in a designated skill or unit for a least 3 years may be paid an REB the day after their current expiration of term of service. The Soldier must contract for a 3-year or 6-year term of service as outlined in the fiscal year selected reserve incentive program policy, must be a primary position holder, and be MOS qualified. 2. DODI 1205.21 governs the Reserve Component Incentive Programs Procedures. It states in: a. Paragraph 6.6 (Relief from Termination) states 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. Persons whose military specialties are changed at the convenience of the Government or whose is inactivated, relocated or reorganized or converted are entitled to continue receiving incentive payments provided they meet all other eligibility criteria. b. Paragraph 6.8 (Termination and Recoupment): If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Unless granted relief, as covered in paragraphs 6.6, the member must refund a prorated amount to the Government, if such termination is for certain reasons. A Soldier moving to a non-bonus skill or unit is required to repay the bonus, unless the move is required by the Reserve component. c. Paragraph 6.9 (Exception to Recoupment) states recoupment is not required in the certain circumstances when an incentive is terminated. These circumstances include death, injury or illness, or other impairment not the result of the member’s own misconduct. d. Paragraph 6.10 (Calculation of Refund) unless otherwise governed in law, the prorate amount refunded to the Government shall be calculated as follows: (1) Paragraph 6.10.1 – the number of months served satisfactorily during the term for which an incentive was paid shall be multiplied by the monthly rate authorized by the particular incentive. The monthly rate is calculated by dividing the total incentive amount by the number of months of Service the member has agreed to serve. This calculation results in the Service member's earned incentive. (2) Paragraph 6.10.2 – that earned incentive must be subtracted from the total incentive amount paid to the individual to date (initial and any subsequent payments). (3) Paragraph 6.10.3 – if the earned incentive is less than the total incentive amount paid, the overpayment to the individual must be recouped. If the earned incentive is more than the payments received to date (total of initial and any subsequent payments), that amount shall be paid in the final installment. (4) Paragraph 6.10.4 – termination from an incentive or any refund made by an individual shall not affect the period of obligation to serve in the Reserve. 3. DOD 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. DOD 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 DISCUSSION: 1. On 30 March 2011, the applicant contracted for a $5,000.00 REB and she agreed to serve in MOS 15T for a 6-year term. On 18 April 2014, she voluntarily transferred to a position that required a different MOS. 2. Subsequently, the NGB terminated the applicant's $5,000.00 REB with recoupment noting her voluntary transfer out of her contracted MOS as the cause for the recoupment action. Her failure to remain in the MOS 15P is in clear violation of the terms of her contract. As such, the NGB properly denied her request for an ETP to retain the REB based on the policy. NGB further directed recoupment of the bonus as required by policy. 3. Her contention that she voluntarily transferred out of her contracted MOS for career progression is supported by her commander's statement that she was encouraged to voluntarily transfer in order to better her career progression and support the unit. Further, the applicant served in her contracted MOS of 15P from 30 March 2011 to 18 April 2014 (38 months and 19 days) and she is currently serving in her contracted MOS as of 11 January 2016. Cumulatively she had completed over 41 months of her 72-month (6-year) contract obligation in her contracted MOS as of the date of her application. 4. The applicant can only receive relief through this Board. As the applicant requested to retain her REB for the months she complied with her contract, the Board could consider prorating her recoupment action for only the period she did not serve in her contracted MOS which is 20 months and 24 days (19 April 2014 to 10 January 2016). This action would comply with guidelines found in the DOD Financial Management Regulation concerning equity and compassion, as well as DODI 1205.12 concerning earned incentive. 5. To calculate the earned incentive in accordance with DODI 1205.12, take the total bonus ($5,000) and divide it by the number of months she contracted for (72 months). The resulting calculation is $69.44 per month ($5,000 / 72 = $69.44). As she did not served in her contracted MOS for 21 months (rounded up from 20 months and 24 days), her earned incentive is 51 months (72 months – 21 months = 51 months) meaning she is entitled to 51 months of her bonus at a rate of $69.44 per month for an estimated total of $3,541.44. (The Defense Finance and Accounting Service or State Finance Office calculates incentive recoupments in accordance with DOD Defense Financial Management Regulation, volume 7A.) The data provided here is an estimate of her earned incentive. 6. As she has a documented medical condition and a limiting physical profile, the Board could consider her case as a financial hardship and consider granting full relief of the recoupment action. This action is also authorized by regulatory guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005493 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005493 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2