ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20170003784 APPLICANT REQUESTS: * in effect, recoupment of bonus debt waived * in effect, repayment of debt paid to date * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) on line application * letter from Defense Finance and Accounting Service (DFAS) * final notice letter from DFAS * installment agreement * Financial Liability Investigation of Property Loss (FLIPL) * legal review of FLIPL * approved FLIPL * inventory of Organizational Clothing and Individual Equipment (OCIE) lost * applicant's sworn statement regarding FLIPL * checklist and tracking document for FLIPL * Army Physical Fitness Test (APFT) scorecards * letter from Pennsylvania Department of Military and Veterans Affairs to Representative K regarding bonus recoupment FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, 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: * his issue is the documents state he failed his APFT, but the funds were still released to him * he was never counseled regarding the APFT failures and he was never flagged * he was allowed to reenlist in 2014 * he does not remember failing his APFT, but if he did, why did his unit release the funds and why was he allowed to complete his 6 year obligation * he contacted Army Human Resources Command and was told this happens often and he would have to setup a payment plan with the Treasury Department * the Treasury Department has sent documents threatening to use Federal Wage Garnishment to recoup his debt * the $264 a month agreement is causing his wife and him serious issues since they have a sick child and one in college * he understands the rules and the contract he signed to perform for the Army National Guard (ARNG) * he finds it disheartening that he was contacted 6 years after the fact and has not been contacted by anyone from his past unit to aide him in this battle * he served 4 years active duty in the Marine Corps and 6 years with the Pennsylvania ARNG * he loved what he did and he loved leading men to battle * this has left him in a tough position and he had no help from his previous training noncommissioned officer or first sergeant * he provided his APFT cards for the Board's consideration and the APFT that was passed was marked as a fail * he does not have any counseling documents regarding failing his APFT or any plan to correct any APFT failures * the error of his records occurred in 2009, why was he allowed to complete his 6 years of service * he was allowed to reenlist and none of these issues were brought to his attention until 2016 after he completed his contract with the ARNG 3. The applicant’s service record contain the following documents for the Board's consideration: a. a DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), which shows he enlisted in the ARNG on 28 March 2009 for a period of 6 years b. a DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 28 March 2009, which shows he was to receive an enlistment bonus c. an NGB Form 21 (Annex A - DD Form 4 Enlistment/Reenlistment Agreement – ARNG), which shows he was enlisting for 6 years for an enlistment bonus. d. a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) which shows he reenlisted for a period of 6 years on 22 December 2014 e. a separation packet, dated 5 May 2015 showing: * the applicant was recommended for a hardship discharge * his son had been diagnosed with Leukemia * the applicant had a personal business and the treatment for his son, running his business, and being in the ARNG was a hardship * a developmental counseling form from the applicant's commander, counseling him on his requested discharge from the ARNG * in the counseling, the applicant was advised he could request a hardship discharge from the ARNG without recoupment having fulfilled his initial contract * letters of support of the applicant's request for discharge * medical documents of the applicant's son f. Orders 180-1009 published by Commonwealth of Pennsylvania Department of Military and Veterans Affairs, dated 29 June 2015, which show: * the applicant was honorably discharged effective 29 June 2015 * he was discharged for hardship or religious reasons * he was a participant in the Selective Reserve Incentive Program (SRIP) * his SRIP would be terminated with recoupment g. an NGB Form 22 (Report of Separation and Record of Service) showing: * the applicant was discharged from the ARNG on 29 June 2015 * he had net service that period of 6 years, 3 months, and 2 days * he had an affiliation bonus on 28 March 2009 which was terminated with recoupment * he was honorably discharged for dependency or hardship 4. The applicant's service records are void of a bonus addendum indicating the amount of bonus or terms or recoupment, counseling statements regarding APFT failures, a flag for APFT failures, and documentation indicating the amount of the applicant's debt. 5. The applicant provides the following documents for the Board's consideration: a. a letter from DFAS dated 27 December 2018 indicating the applicant is indebted to the United States Government and he needed to make arrangements to pay the debt b. a letter from DFAS dated 28 January 2019 indicating a final notice for the applicant's indebtedness c. a letter from DFAS dated 29 January 2019 indicating the applicant's installment agreement was accepted and showing he had a debt of $1,635.22 and pays $50 per month d. a FLIPL dated 4 December 2015 which shows: * the applicant was notified he was recommended for charges of financial liability in the amount of $1,633.81 * the charges were for the loss of government property * the FLIPL was found to be legally sufficient on 24 November 2015 * the applicant did not turn in his OCIE and was assigned financial liability in the amount of $1,633.81 the value of the missing property * the FLIPL contains a list of OCIE missing and the value of each item * the FLIPL contains a sworn statement of the applicant indicating he did not receive a combat shelter * the FLIPL contains a checklist and tracking document for financial liability investigations e. two DA Forms 705 (APFT Scorecard) which show on: * 12 June 2010 he took an APFT and failed the run * 10 July 2010 he took the APFT and failed the run * 19 September 2010 he took the APFT and failed the run * 23 July 2011 he took the APFT and failed the run * 23 July 2012 he failed the APFT; he did not take the APFT in the past 12 months * 18 November 2012 he passed his APFT * 24 August 2014 he took the APFT and failed the run * 9 December 2014 he passed his APFT f. a letter from Pennsylvania Department of Military and Veterans Affairs, dated 27 January 2017, to Representative K which states: * the applicant qualified for a $15,000 bonus * he received the first installment of $7,500 upon completion of his training * after his first payment the applicant failed the APFT three times in a row * his bonus addendum stated two consecutive APFT failures would terminate his contract from bonus eligibility with recoupment * at the time of the applicant's second APFT failure, National Guard Bureau (NGB) authorized his second bonus payment of $3,250.00 * this erroneous payment should never have been paid to the applicant * the applicant did not request an Exception to Policy NGB * his discharge order states his bonus would be recouped * the recoupment amount was determined by the date of the second APFT failure and was a prorated amount 6. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. See below for applicable regulations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was warranted. Based upon the applicant completing six years of service and the untimeliness of the notification of his APFT failure, the Board concluded recouping the bonus would result an injustice, which should be corrected. The Board recommended all bonus recoupment should be waived and the applicant be permitted to retain all previous payments. 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: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by * waiving all remaining bonus recoupment from the applicant * return all previously recouped money to the applicant as part of the recoupment of the bonus 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 3. Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 – 30 September 2009 (Policy Number 07-06) updated 17 February 2009, states: a. Applicants who enlist for a six year enlistment option will receive a $15,000 bonus. b. 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. If a Soldier has two consecutive record APFT failures or two consecutive failures to meet body fat standards, their bonus will be terminated with recoupment. 4. AR 600-4 (Remission or Cancellation of Indebtedness) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or cancel a Soldier’s debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army that may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. ABCMR Record of Proceedings (cont) AR20170003784 4