ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20160017332 APPLICANT REQUESTS: cancellation of the recoupment of his Prior Service Enlistment Bonus (PSEB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) 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 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 while serving in an Inactive National Guard (ING) status, his unit did not file the extension he signed, while on his civilian deployment in Afghanistan. Due to this, his PSEB was placed as a debt. 3. A review of the applicant’s service record shows: a. Having prior service in the U.S. Marine Corps, he enlisted in the Virginia Army National Guard (VAARNG) on 7 February 2009. He is currently serving in the VAARNG. b. In connection with his enlistment, he executed a National Guard Bureau Form 600-7-6-R-E (Annex X to DD Form 4, PSEB Addendum) on 7 February 2009 for military occupational skill (MOS) 31B (Military Police) in the amount of $15,000 for a period of 6 years. He agreed/acknowledged: (1) In Section II – Eligibility: * He has not completed more than 16 years of total military service * He was not qualified in the primary MOS for which he enlisted in, but enlisted into a critical skill MOS and agreed to attend formal training and become qualified in his contracted MOS within 24 months of his date of enlistment * He understood that his initial bonus payment would not be processed until he became MOS qualified * He met all enlistment eligibility (2) In Section III – Bonus Amount and Payments * He was not MOS qualified for the position as of the date of the enlistment and must enlist into a State top thirty critical skill and become MOS qualified within 24 months * His bonus would be paid in two 50% installments, the initial installment of 50% will be processed for payment upon enlistment (if not MOS qualified, his initial payment would not be processed until he became MOS qualified) * the second and final installment of 50% will be processed for payment on the third-year anniversary of enlistment * upon voluntarily transfers within the state or interstate transfer, the termination date would be the effective date of his transfer order (3) In Section VI – Termination with Recoupment: * He understood that he would be terminated from bonus eligibility with recoupment if he failed to extend his enlistment for time served in the ING within 30 days after returning to his unit. Recoupment would be calculated from the effective date of transfer to the ING * The amount of monies that he was entitled to from the incentive is calculated by multiplying the number of months served satisfactorily during the term for which the incentive was authorized by the proportionate monthly dollar amount * The proportionate monthly dollar amount is determined by dividing the total authorized bonus amount by the total amount of months in the original contractual obligation * The amount of the bonus that he was entitled to keep, as calculated above, will be subtracted from the total bonus paid to date (4) In Section VII – Statement of Understanding: He acknowledged that he read the addendum in its entirety. He understood all of the above statements concerning his enlistment bonus. He understood that the addendum would be void if he does not meet all of the requirements. (5) In Section VIII – Authentication: He authenticated with his signature and date. (6) In Section IX – Certification by Service Representative: The enlisting official authenticated with his signature and date. c. He was awarded MOS 31B on 2 July 2009. . d. He served in Iraq from 21 September 2009 to 14 November 2009. e. Orders 342-002, dated 8 December 2010, transferred the applicant to the ING per the applicant’s request, effective 1 July 2010. f. Orders 256-021, dated 13 September 2011, transferred the applicant from the ING, effective 13 September 2011. g. Orders 224-074, dated 11 August 2012, transferred the applicant to ING per the applicant’s request, effective 15 August 2012. h. Orders 248-065, dated 5 September 2013, transferred the applicant from the ING. 4. On 25 March 2019, an official with the National Guard Bureau provided an advisory, it states: a. According to NGB Form 600-7-6-R-E, Section IV, para. 1, “I understand I will be suspended from bonus eligibility (placement in the inactive National Guard (NG), maximum periods of no-availability are: one year for personal reasons. “ Soldier initialed understanding. ARNG SRIP (07-06), para. 14 (e.) states “Failure to return to active status within the approved time period for non-availability (paragraph 17) or to extend their enlistment to cover the period of time served in an inactive status within 90 days of return to active status. Termination will be effective the date the Soldier was ordered to the ING.” b. SGT H----- was fully eligible to receive the PSEB, but lost eligibility due to transferring to ING from 1 December 2010 to 30 June 2011 and administrative errors. Soldier did not extend his enlistment covering the ING timeframe within 90 days upon returning from the ING. We recommend denial of relief of recoupment of PSEB in the amount of $15,000. We would recommend consideration that the Soldier extended his service obligation to fulfill the contract obligation and continues to serve today. To that end, we recommend consideration of successful time served from 7 February 2009 until 1 December 2010 (22 months) prior to transfer into the ING and allowed to retain this amount ($4,583.33). c. This advisory was coordinated with the National Guard Incentives Branch. The VAARNG did not provide input with this recommendation. 5. On 29 March 2019, ARBA provided the applicant a copy of the advisory and gave him the opportunity to submit a statement or additional evidence on his behalf. He submitted a Rebuttal. See attached. 6. By policy, ARNG Selected Reserve Incentive Program (SRIP) (07-06), paragraph 17 failure to return to active status within the approved time period for non-availabitliy (paragraph 17) or to extend their enlistment to cover the period of time served in an inactive status within 90 days of return to active status. Termination will be effective the date the Soldier was ordered to the ING. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. The Board agreed to partial grant based upon the recommendations within the NGB advisory opinion and the lack of a response to that advisory opinion on behalf of the applicant to provide a rebuttal. 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 Army records of the individual concerned be corrected by showing that the applicant retained eligibility for the Prior Service Enlistment Bonus (PSEB) until to the date he voluntarily transferred out of the contracted unit (1 December 2010) and that monies paid to that point, $4,583.33, be allowed to be retained. All other recoupment, if any, will continue. 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 full relief from the recoupment of the Prior Service Enlistment Bonus (PSEB). 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. 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 Army Board for Correction of Military Records (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. Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard and the USAR incentive programs. a. Paragraph 1-15 contains guidance on suspension of SRIP incentives and states the member will be suspended from the incentive program during authorized periods of non-availability which includes transfer to the ING or IRR. b. Paragraph 1-16, provides guidance on the reinstatement of SRIP incentives. It states that reinstatement in the SRIP and resumption of subsequent incentive payments following a period of authorized non-availability is not guaranteed. Soldiers who complete a period of non-availability and request reinstatement of eligibility for the SRIP and resumption of subsequent payments must extend their enlistment or reenlistment agreement within 30 days in order to serve out the full incentive contract period in the Selected Reserve. A soldier who does not comply with all of the requirements will be subject to termination of SRIP with recoupment action required. A Soldier who complies with all of the requirements will have entitlement to payments resume on the adjusted anniversary date of satisfactory creditable Selected Reserve service. ABCMR Record of Proceedings (cont) AR20160017332 5 1