ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 February 2019

	DOCKET NUMBER:  AR20160015498


APPLICANT REQUESTS: Reversal of the Exception to Policy (ETP) denial to retain a $15,000.00 Reenlistment Bonus (REB).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DA Form 4856 (Developmental Counseling Form)
* Self-authored letter

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states she served honorably for 20 years and had to change her Military Occupational Specialty (MOS) to stay in the service and should not be penalized by having to pay back the bonus. 

3.  The applicant provides:

	a.  DA Form 4856, wherein she is formally counseled about the termination of her bonus and appeal process.  She disagreed with the counseling and selected her option to request an ETP. 

	b.  Self-authored letter that states in pertinent part, she reenlisted for 6 years and was not able to hold a security clearance, so therefore she changed her MOS to 92G on 1 October 2010.  Her unit did not say anything to her, just that she would need to change her MOS to 92G to stay in the Army to reach her 20 years for retirement.  She signed the counseling statement on 8 May 2013, after her ETS date of 13 April 2013.  When her senior non-commissioned officer told her about changing her MOS, he did not say anything about going to school for the MOS and told her she would be fine changing her MOS.  

4.  A review of the applicant’s service records show the following on:

* 14 April 2004 – enlisted in the North Carolina Army National Guard (NCARNG)
* 16 July 2004 – National Guard Bureau (NGB) Form 22-5-R-E (Addendum to DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant was transferred from the NCARNG to the Wisconsin Army National Guard (WIARNG) in MOS 42A (Human Resources Specialist)
* 10 January 2007 – DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) was completed, extending her Expiration Term of Service (ETS) by 4 years, in conjunction with her extension NGB Form 600-7-3-R-E (Annex R to DA Form 4836) was completed showing the following:

* section 3 (Bonus Amount and Payments), item c, she was reenlisting for 6 years and would receive a lump sum bonus payment of $15,000.00
* section 4 (Suspension), item 2, she would be suspended from bonus eligibility if she was flagged for an adverse action other than failure to maintain body composition standards or Army Physical Fitness Test (APFT) failure

* 1 September 2010 – WIARNG Form 3813-1 (SIDPERS Input – Duty Position) removed the applicant from the 42A duty position to a 92G (Food Service Specialist) duty position, effective 1 October 2010, she was not qualified in MOS 92G

5.  On 9 January 2013, by memorandum the applicant was informed the State Adjutant General had suspended her separation, and directed she be retained in the WIARNG with a suspended separation to allow her to reach her ETS and retirement eligibility, subsequently she would remain flagged for adverse action related to conviction by a criminal court for domestic violence.  

6.  On 31 January 2013, in response to the notification of suspense of separation her immediate commander completed DA Form 4187 (Personnel Action) wherein he processed an involuntary transfer/reassignment which was command directed, and she was flagged for adverse action. 

7.  On 13 April 2013, the applicant was honorably discharged from the WIARNG and transferred to the Retired Reserve. 

8.  On 16 July 2013, by memorandum, the applicant was informed her ETP to retain her $15,000.00 REB was denied because she was not serving in the MOS she contracted for which violated ARNG Selected Reserve Incentive Policy (SRIP) 07-04 due to loss of security clearance.


9.  ARNG SRIP Guidance for Fiscal Year (FY) 2007, 1 January 2007 – 31 March 2007 (Policy Number 07-04):  The ARNG offers a $15,000.00 REB to Soldiers who re-enlist or extend for six-years.  Soldiers will receive their REB in a lump-sum payment, which is payable upon the effective date of the new contract (day after current contractual ETS).  Termination with recoupment will occur if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief.  The Board agreed the applicant’s flag resulting from a domestic violence conviction justly led to the nullification of her REB.  However, the Board requests to prorate the bonus recoupment as a partial grant.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 showing the applicant was fully eligible to retain REB through the date her security clearance was revoked, and the return of any money recouped for the period through the revocation date.

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 an exception to policy allowing her to retain the entire REB for the period after the security clearance was revoked.


	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  ARNG SRIP Guidance for Fiscal Year (FY) 2007, 1 January 2007 – 31 March 2007 (Policy Number 07-04) states:

   a.  The ARNG offers a $15,000.00 REB to Soldiers who re-enlist or extend for six-years.  Soldiers will receive their REB in a lump-sum payment, which is payable upon the effective date of the new contract (day after current contractual ETS).
   
   b.  Termination with 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 the member must refund a prorated amount to the Government, if the member moves to a non-bonus skill, unless the move is required by the ARNG.
   
   c.  Soldier’s incentives will be suspended for becoming flagged for an adverse action (Does not include failure to maintain body composition standards or APFT failure).  

ABCMR Record of Proceedings (cont)	AR20160015498
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