w-required correctionsARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170000377 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * cancellation of his United States Army enlistment bonus APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * United States (U.S.) Department of the Treasury Bureau of the Fiscal Service (Treasury) notification of Social Security payment reduction * Email from applicant's father * Email response to Army Review Board Agency from applicant's father FACTS: 1. The applicant’s father, who serves as the designated agent through power of attorney, states that he and the applicant would like to dispute the claim of an unearned U.S. Army enlistment bonus incurred as a result of the applicant’s separation from the U.S. Army Reserve (USAR) prior to completion of his service obligation. The dispute is based on medical circumstances and hardship. The initial balance was approximately $2,700. There was a partial recoupment of $1,554 as a result of a tax refund from the 2015 tax year, which payment was garnished by the U.S. Treasury and never refunded back to the applicant. The current unpaid balance is $1,610.04. 2. The applicant’s father provides: a. Email from the applicant's father, requests that the unearned bonus be reconsidered under the guidelines located on the military compensation webpage under recoupment general rules. b. Treasury notification of social security payment reduction, dated 3 November 2016. Beginning no sooner than December 2016, Treasury will offset up to 15% of each of the applicant’s monthly social security benefit payments until the debt to the U.S. Army is paid or otherwise resolved. c. Email response from the applicant's father to the Director, Case Management Division, Army Review Boards Agency states that the applicant is disabled. While he was serving in the USAR, he was provided with many opportunities. His fondest memory and greatest opportunity was Sergeant School, which they believe he attended in 2011. [Applicant] was very proud to have placed in the top 10% of his group of more than 200 people (he seems to think he was #17 or #18). Regardless, he was awarded a special commendation for placing in the top 10% of his class. Unfortunately, [Applicant’s] medical issues accelerated after completing Sergeant School, and by midway through 2012, he became an unsatisfactory participant in the USAR. On 20 August 2014, [Applicant] was discharged with a characterization of under other than honorable conditions. [Applicant] extends his deepest apologies for circumstances which they now know were beyond his control. [Applicant] would appreciate the Board's continued review of his appeal. 3. With respect to the discharge upgrade, the applicant's request is premature. Paragraph 2-5, Section II, Army Regulation (AR) 15-185 (ABCMR), the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her. There is no evidence that the applicant has petitioned the Army Discharge Review Board (ADRB) for review of his discharge processing, within that board's 15-year statute of limitations. As a result, the issue of his discharge upgrade will not be further considered by this Board. The ADRB Reviews discharges of former Soldiers, on the basis of issues of propriety and equity; except if the date of the former Soldier’s discharge is more than 15 years or if the former soldier was punitively discharged by a General Court Martial. The purpose of the review is to determine if the discharge was granted in a proper manner, according to regulatory procedures in effect at the time, and that it was equitable, considering current policy, mitigating factors, and the total record. 4. A review of the applicant’s service records shows: a. He enlisted in the USAR on 25 January 2008. He enlisted for 3 years with a $20,000 cash bonus in accordance with Headquarters, Department of the Army Message DAPE-MPA, Subject: Enlisted Incentive Program changes effective 31 May 2007. b. His enlistment bonus addendum entitlements section states: (1) Entitled to a non-prior service enlistment bonus amount of $20,000. Initial payment of 50% of the total authorized $20,000 bonus after the applicant receives his high school diploma, completes his initial active duty training, and qualifies in his military occupational specialty (MOS). (2) The remaining unpaid portion of the bonus will be paid in one subsequent payment upon the successful completion of the 2nd year of the enlistment term of service. c. Entitlements to the enlistment bonus will be terminated should any of the following conditions occur before the fulfillment of his enlistment agreement and obligation. For the following, (1) through (7) below is with recoupment and (8) though (11) is without recoupment. (1) Become an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures). (2) Move to a non-bonus unit or MOS, or if he is reclassified. However, his bonus entitlement will not terminate if he moved to another Selected Reserve unit or MOS for normal career progression, or because his current unit has been reorganized, relocated, re-designated, inactivated, or converted, or if his move has been approved by the Chief, Army Reserve. (3) Fail to become MOS qualified within 12 months, if required to perform on-the-job training, or within 24 months if required to attend a service school, following a voluntary reassignment to a bonus authorized MOS or unit other than that for which he has herein contracted. (4) Be separated from his status as an enlisted Soldier assigned to a unit of the Selected Reserve, for any reason, except when separated for an authorized period of non-availability or entry on active duty or full-time National Guard duty in an Active Guard Reserve status. Unless the separation is due to - * Unit inactivation, reorganization, conversion, relocation, reduction of over strength, or reduction in force * Acceptance of immediate appointment as an officer in the Ready Reserve after serving 1 year or more in a Selected Reserve unit under this agreement * Death, injury, illness, or other impairment not the result of his own misconduct * Involuntary order to extended active duty in the Active Army * Becoming an assigned member of Control Group (ROTC) (5) Accept a permanent civilian position where membership in the Selected Reserve is a condition of employment. If he has not satisfactorily served 6 months or more of the Selected Reserve Service under this agreement before accepting a permanent civilian position. (6) Exceed the maximum period authorized for suspension during a period of non-availability. (7) Fail to extend his USAR contracted term of service to compensate for a period on non-availability. (8) Enroll in the Senior Reserve Officers Training Corps (SROTC) with assignment to Control Group (ROTC), or if he became a participant in the ROTC Simultaneous Membership Program (SMP). While enrollment in the SROTC, or participation in the SMP will terminate bonus entitlement, it will not result in recoupment action. (9) Complete at least 3 years in a Selected Reserve unit as he agreed to do under the terms of this contract. (10) Enter on the second phase of alternate (split) training without proof of qualification as a secondary school graduate. (11) Be transferred between the USAR and the Army National Guard (ARNG). d. On 8 September 2008, he was assigned to 990th Engineer Company, a troop program unit of the USAR at Fort Dix, NJ. e. On 10 March 2011, he was further transferred to D Company, 1st Battalion, 391st Regiment, Fort Dix, NJ. f. He graduated from the Warrior Leader Course on 17 February 2012 in the top 20%. g. The complete facts and circumstances surrounding his discharge are not available for review with this case. His record contains Orders 14-225-0005, issued by Headquarters, 99th Regional Support Command, Fort Dix, on 13 August 2014 that reduced him from specialist/E-4 to private/E-1, effective 13 August 2014. In addition, the order discharged him from the USAR effective 20 August 2014, under the provisions of AR 135-178 (Enlisted Administrative Separations). He completed 6 years, 6 months, and 27 days of Reserve service. 5. An advisory opinion was obtained from the Chief, Accessions Division, Office of the Deputy Chief of Staff, G-1 on 19 March 2019. a. The advisory official was asked to provide an opinion on the following: Enlisted bonus debt. The advisory official consulted the following sources: Interactive Personnel Electronic Records Management System, applicant’s DD Form 149, and records supplied in his file. c. The advisory official noted the following: (1) The [applicant] enlisted in the USAR on 23 January 2008, agreeing to serve a 3 year term of service in MOS 21J (General Construction Equipment Operator). He was discharged on 20 August 2014 with a characterization of under other than honorable conditions. At the time he signed his DD Form 4 (Enlistment/Reenlistment Document), he qualified for a $20,000 enlistment bonus. (2) According to the USAR Pay Center, and confirmed by USAR Command G-1, [Applicant’s] debt was calculated based upon 62 months of creditable service toward a 6 year service obligation. Based upon the recoupment calculation, the original debt was $2,777.78. Per the [Applicant’s] father, $1,554 was already recouped by the U.S. Department of Treasury through a tax refund garnishment. c. The advisory official reached the following conclusions: (1) Recommend full relief for [applicant] as well as repayment of the partial recoupment that has already taken place. The calculation of debt recoupment was erroneous, based upon [Applicant’s] contract, which required he only serve 3 years. He met his 3 year service obligation on 24 June 2011, which is 3 years from the date he became qualified in MOS 21J. [Applicant] was a satisfactory participant and was not reported as an unsatisfactory participant until 10 June 2012. (2) Further recommend his characterization of separation be reviewed to determine if it should reflect honorable conditions, given that [applicant] was considered a satisfactory participant eleven months beyond his required service obligation. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments. His father responded via email, see paragraph 3c above. 7. Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedures) provides policy on incentives to sustain and maintain members. Incentive skills shall be used to attract and retain individuals possessing or qualifying for training in critical skills and/or critical units needed in wartime and to sustain membership and maintain readiness in the National Guard and Reserve components. Incentives shall be implemented in specific situations where other, less costly, methods have proven inadequate or ineffective and only as necessary to support unit and skill staffing requirements. 8. By regulation, discharges under the provisions of AR 135-178 provides that a member may be separated for defective enlistments and reenlistments, entry level performance and conduct, unsatisfactory performance, substance abuse rehabilitation failure, misconduct, and unsatisfactory participation in the ready reserve. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the findings of the G1 advisory opinion that the applicant served eleven months beyond his required service obligation, the Board concluded there was an error and injustice present which required correction. For that reason, the Board recommended upgrading the characterization of service to Honorable and cancelling the recoupment of the enlistment bonus. Additionally, the Board found that the partial recoupment should be repaid to the applicant based upon the applicant completing the service agreement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 2. The Board also recommends that all Department of the Army records be corrected by reflecting a cancellation of the enlistment bonus recoupment and that all prior recouped monies be repaid to the applicant based upon him completing all terms of the contract. 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: Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States and USAR enlisted Soldiers for a variety of reasons. a. Paragraph 2-9a states an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 2-9b states that if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 2-9c states service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. d. Chapter 3 (Guidelines for Separation), in pertinent parts, states the commander will notify the Soldier, in writing, of the matter set forth, i.e., proposed separation, rights to counsel, submit statements, and administrative board if applicable. (1) Reasonable effort should be made to furnish copies of the notice to the Soldier. A written acknowledgement of the notice will be obtained. If the Soldier cannot be personally contacted or refuses to acknowledge receipt of the notice, the notice will be sent by registered or certified mail, return receipt requested, to the most recent address furnished by the Soldier. (2) If the notification memorandum was mailed and the Soldier fails to acknowledge receipt, or to submit a reply within 30 calendar days, that fact will constitute a waiver of his rights. ABCMR Record of Proceedings (cont) AR20170000830 7 1