ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 April 2019 DOCKET NUMBER: AR20160016629 APPLICANT REQUESTS: correction of his records to show he extended for six years on 18 September 2014 with an expiration of term of service (ETS) of 28 January 2021. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Three DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment) * Memorandum for Record, subject: Agreement for Deployment Extension Stability Pay (DESP) * Annex R to DD Form 4 or DA Form 4836 (Reenlistment/Extension Bonus (REB) Addendum FACTS: 1. The applicant states he signed a one year DESP extension in 2014 to deploy. [DESP program replaces the stop-loss program and pays a cash bonus to Soldiers in units set to deploy who elect to stay in past their ETS date in order to deploy]. Prior to deployment, he was informed that the DESP was no longer available as of 1 January 2014. He still deployed and signed a six year reenlistment in Afghanistan. Upon returning to Fort Hood, TX, he was informed that his six year reenlistment was not valid as the one extension for DESP was entered. This was the first he had heard of this as he was not counseled on the action. Since this time he has had to sign another extension due to the fact that he is a full-time dual status technician. He is requesting that his ETS be corrected to that of the six year extension signed in good faith while he was deployed. 2. The applicant provides: a. DA Form 4836, dated 11 January 2014, which extended him for one year with a new ETS of 28 January 2016. b. Memorandum for Record, subject: Agreement for DESP, dated 11 January 2014, which shows that he volunteered to extend his service obligation by 12 months in a designated billet for purposes of assignment incentive pay. c. DA Form 4836, dated 18 September 2014, which extended him for six years with a new ETS date of 28 January 2021. d. Annex R to DD Form 4 or DA Form 4836, dated 18 September 2014, which shows that he accepted a reenlistment bonus of $10,000. e. DA Form 4836, dated 3 May 2015, which extended him for three years with a new ETS date of 28 January 2019. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Tennessee Army National Guard (TNARNG) for 6 years on 29 January 2009. His ETS date was established as 28 January 2015. b. He entered active duty for training on 31 August 2009 and was honorably released on 14 January 2010. c. The applicant entered active duty on 13 March 2014. He served in Afghanistan from 8 May 2014 to 27 November 2014. He was honorably released from active duty on 31 January 2015. d. He was discharged from the ARNG on 28 January 2019. 4. The National Guard Bureau reviewed his case and rendered an advisory opinion on 9 January 2019. The Chief, Special Actions Branch recommended partial approval of the applicant’s request. a. The applicant enlisted for a six year term in the TNARNG on 29 January 2009 with an ETS of 28 January 2015. He contends that he signed a one year extension to his enlistment in January 2014 as part of the DESP program. Thereafter, the applicant was informed that DESP was no longer available. He deployed to Afghanistan in support of Operation Enduring Freedom and, while deployed, completed a six year extension. Upon his return from deployment, the applicant was informed that his six year extension (signed on deployment) was not valid as the one year extension previously signed for DESP had been entered into his record. As a result, the applicant completed a three year extension on 3 May 2015. b. The applicant’s record contains a DA Form 4836 for a one year extension of his enlistment signed 11 January 2014. The record also contains the DA Form 4836 completed after the applicant’s return from deployment signed 3 May 2015. In addition, the applicant provided a memorandum and a DA Form 4836 completed at Kandahar Airfield, Afghanistan and signed on 18 September 2014 extending the term of enlistment for six year with a new ETS of 28 January 2021. c. Based on the provided documentation, the applicant did complete an extension to his enlistment on 11 January 2014 with the intent to participate in the DESP program. The DESP agreement memorandum and the DA Form 4836, which also annotates “DESP,” are evidence of this action and intent. Yet, because the DESP program terminated on 31 December 2013, the applicant entered into an agreement that was no longer valid. d. A DA Form 4836, completed on 18 September 2014, provides evidence to suggest that the January 2014 DESP extension was disregarded upon discovery of the program termination. The September 2014 document identifies the applicant’s current ETS date as 28 January 2015 (the original ETS date from his 2009 enlistment), and was certified by the same officer which certified the DESP extension and would have been aware of the adjustment to the Soldier’s ETS date (28 January 2016), had the 2014 DESP extension been considered valid. This action, instead, indicates that the intent was to vacate the previous extension and that the Soldier and officer acknowledge the oath of extension as being subscribed on 18 September 2014, the applicant also signed for a $10,000 REB. It is unknown if the applicant ever received payment of this bonus as this extension (September 2014) was later deemed invalid due to the filing of the DESP extension (January 2014). e. Due to no fault of the applicant, the January 2014 extension was not properly vacated; although a formal request could have been submitted and likely approved, has the applicant been properly advised. The intent of the applicant was to serve the six year contract with an ETS of 28 January 2021; yet the applicant’s record contains order number 312-1023 which shows the applicant will be discharged from the ARNG effective 28 January 2019. Based on the evidence provided, the applicant’s upcoming ETS, and the information above, it is the recommendation of their office to reject the applicant’s request to correct his ETS date and, instead, grant him an exception to policy for participation in the DESP program, as outlined in the agreement signed on 11 January 2014. The applicant met the eligibility requirements for DESP, served the full contract, and deployed in support of Operation Enduring Freedom. He should be granted the monies associated with this program, as this is the contact that he agreed to (prior to learning of the termination of DESP) and this is the contract that he served. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond on 15 January 2019. He did not respond. 6. By regulation, a contractual obligation is acquired when an individual voluntarily enters into an agreement to serve in a military status for a specific period of time. A contractual obligation may run concurrently with the statutory obligation incurred on initial entry into the Armed Forces, it may extend past the length of the statutory obligation, it may be added to the statutory obligation, or it may exist where no statutory obligation was incurred. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. The Board found that the NGB advisory’s outline of the facts and the recommendations compelling, fair and just to all parties based upon the totality of the circumstances in the case. Due to no fault of the applicant, the January 2014 six year extension was not properly vacated and although a formal request could have been submitted by the applicant and likely approved, the applicant had not been properly advised of such an option. The intent of the applicant was to serve the six year contract with an ETS of 28 January 2021; yet the applicant’s record contains order number 312-1023 which shows the applicant will be discharged from the ARNG effective 28 January 2019. In the interest of fairness to the applicant, because it was the his intent to comply with all terms of the contract when entered and there was no fault of his which caused the vacation of that contact, the Board adopted the recommendations of the NGB. 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. The Board recommends granting the applicant an exception to policy for participation in the DESP program, as outlined in the agreement signed on 11 January 2014. The Board found that the applicant met the eligibility requirements for DESP, served the full contract, and deployed in support of Operation Enduring Freedom, and the Board recommends granting the applicant the monies associated with this program, as this is the contact that he agreed to (prior to learning of the termination of DESP) and this is the contract that he served. 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 correcting his records to show he extended for six years on 18 September 2014 with an expiration of term of service (ETS) of 28 January 2021 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. REFERENCE: 1. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) defines Army National Guard of the United States and U.S. Army Reserve service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. a. The statutory military service obligation is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. Soldiers who enlisted on and after 1 June 1984 incur an 8 year statutory military service obligation. The statutory military service obligation can be terminated by the Army prior to its fulfillment. Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier's statutory obligation. The statutory obligation is not terminated, however, when the Soldier is separated from immediate reentry into the same or another military status. This includes an officer training program in which the Soldier has military status. b. A contractual obligation is acquired when an individual voluntarily enters into an agreement to serve in a military status for a specific period of time. A contractual obligation may run concurrently with the statutory obligation. It may extend past the length of the statutory obligation; it may be added to the statutory obligation; or it may exist where no statutory obligation was incurred. 2. DESP was new program that provided special pay for Soldiers deploying past their end-of-service dates. It took effect on 1 September 2009 for National Guard. The DESP program replaced the stop-loss program and paid a cash bonus to Soldiers in units set to deploy who elected to stay in past their end-of-service date in order to deploy. The bonus is not a lump sum payment and the amount of the incentive depends upon when the Soldier decides to extend their enlistment contract. The monthly payment rate depended on the Soldier’s agreement to extend from 180 days to 365 days (prior to the mobilization date) or between 179 days and 90 days before the mobilization date. Soldiers who elected to take advantage of this program had their enlistment contracts extended for the length of the deployment plus 90 days. Soldiers who had enlistment contracts that expired during the deployment and who chose not to extend still had to deploy. This program terminated on 31 December 2013. ABCMR Record of Proceedings (cont) AR20160016629 2 1