ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2019 DOCKET NUMBER: AR20170008152 APPLICANT REQUESTS: payment of his tax exempt bonus per the Inspector General (IG) investigation, dated 18 January 2017. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * IG Letter, dated 18 January 2017 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 he was unable to sign for a tax exempt bonus due to his unit’s administrative error while they were still in country in a tax exempt status. Due to this, he had to sign another one year extension in order to get back into the "bonus window" at the request of the IG officer. Therefore, he is requesting that his bonus be paid as soon as possible with the tax exemption as it would have been paid on or about August 2016 as that was his original expiration-term of service (ETS) date, and would have been his ETS date for bonus had he been allowed to sign the contract while in a tax exempt status. He has a letter from the IG stating that after their investigation it was discovered that he did everything on his part to be eligible and did his due diligence in order to sign his extension and bonus during a tax exempt status prior to the end of his contract. He has included all of the paper work that he could find that supports his case to include his new contract containing a bonus, his orders for deployment, his DD-214 showing dates of service and separation as well as documentation showing the unit moving him into a hard slot so that he may receive the bonus all prior to our departure from the combat zone tax exclusion (CZTE). 3. The applicant provides a copy of the IG letter, dated 18 January 2017, that states that the IG conducted a thorough inquiry into his request for assistance and determined that his issue was founded. The evidence indicates that there were administrative errors by the unit and miscommunication with the enlisted branch (G1). Due to his departure from the CZTE, he became ineligible to receive the enlistment bonus tax exemption. Email traffic dated from January 2016 thru May 2016 confirmed that several attempts were made to finalize the paperwork necessary to complete the reenlistment process before becoming ineligible. However, the unit rear detachment did not process his reenlistment packet before the tax-free eligibility period closed. It further states that, he will need to submit a request with all supporting documentation, including this document if he chooses, to the Army Board for Corrections of Military Records (ABCMR) in order to appeal the ineligibility determination and request tax-exempt status for his reenlistment bonus. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Army National Guard (ARNG) on 27 April 2006. b. He served in Djbouti from 27 September 2015 to 20 May 2016. b. Orders 119-189, dated 7 July 2015, shows the applicant was ordered to active duty effective 31 July 2015, not to exceed 400 days. c. DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 12 July 2015, extends the applicant in the ARNG changing his expiration term of service (ETS) from 26 October 2015 to 26 August 2016. d. Military Personnel Office (MILPO) Orders, dated 1 April 2016, shows the applicant’s duty assignment changed effective 1 April 2016. e. Orders 131-011, dated 10 May 2016, reassigns the applicant effective 12 April 2016. f. Orders 154-0006, dated 2 June 2016, releases the applicant from active duty effective 18 July 2016. g. DA Form 4836, dated 8 July 2016, extends the applicant in the ARNG changing his ETS from 26 August 2016 to 26 August 2017. h. He was released from active duty on 18 July 2016 with an honorable character of service for completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 11 months and 18 days of active duty service. Block 12f (Foreign Service) reflects 7 months and 24 days. Block 18 reflects service in Djibouti from 27 September 2015 to 20 May 2016. i. Orders 133-067, dated 26 July 2016, amends Orders 119189, dated 7 July 2015 and changes the mobilization date from 2 September 2016 to 18 July 2016. j. DD Form 4 Annex (Reenlistment/Extension Bonus (REB) Addendum ARNG), dated 14 October 2016, shows that the applicant qualified and accepted a reenlistment bonus (REB) for military occupational specialty (MOS) 88W (Motor Transport Operator) for 6 years. He reenlisted for the 6 year Duty MOS qualification (DMOSQ) REB and will receive a total in the amount of $12,000. His REB would be processed in two installments. The first 50% REB payment would be processed the day after his current ETS upon verification of his Military Occupational Specialty (MOS) and unit assignment qualification in Army National Guard Incentive Management System (GIMS). The second 50% REB payment will be processed on the fourth year anniversary of his REB contract start date provided installment 1 was previously processed. k. DA Form 4836, dated 14 October 2016, extends the applicant in the ARNG changing his ETS from 26 August 2017 to 28 August 2023. Block 8 (Authority and Reason for Extension) shows Rule B (Reenlistment Bonus). 5. An IG report, dated 18 January 2017, states, “The IG conducted a thorough inquiry into your request for assistance, and determined that your issue was founded…the evidence indicated that there were administrative errors by the unit and miscommunication with the enlisted branch (G1). Email traffic dated from January 2016 thru May 2016 confirmed that several attempts were made to finalize the paperwork necessary to complete the reenlistment process before becoming ineligible. However, the unit rear detachment did not process your reenlistment packet before the tax-free eligibility period closed.” 6. Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), in effect at the time, requires each written REB agreement will be authenticated with the service representative’s signature, the service member’s signature and the witnessing officer’s typed name, grade and signature. 7. National Guard Regulation (NGR) 600-7 (Selected Reserve Incentive Programs) paragraph 1-18(3)(c) states that the status of incentives on unit transition that has been paid or is pending is predicated on the following: (1) A Soldier may continue to receive full incentive payment, if otherwise eligible, when the Soldier is transferred or reassigned to— (a) Another Select Reserves (SELRES) unit of the ARNG. Assignment will be in a bonus MOS/Area of Concentration (AOC) or to a bonus designated unit, where possible. (b) Another unit of the Army National Guard (ARNG) outside of commuting distance. Assignment in a bonus MOS/AOC or to a bonus-designated unit is preferred, but not necessary. This is provided there are no assignments available in the Soldier’s bonus MOS/AOC or type of unit within commuting distance. (2) Transfer between the Reserve Components (RCs) of the Army should be the priority and used instead of reassignment to the Individual Ready Reserve (IRR) or Inactive Army National Guard (ING). (a) As specified in subparagraph (2) above, every effort should be made to retain Soldiers who have been contracted for an incentive in the SELRES. Assignment to other units within the same Component should have priority. As a second priority, commanders must consider transfers between RCs of the Army instead of reassignment or transfer to the IRR or ING. (b) The term transfer as used in this paragraph refers to the personnel actions necessary to affect the change in strength accountability between the ARNG and the USAR. Enlisted Soldiers require discharge and enlistment actions, while officers require appointment and Federal recognition actions. (c) When an ARNG unit is in transition and the Soldier cannot be reassigned or used in another unit of the same component. The ARNG Soldier will be offered an opportunity to transfer to an USAR Troop Program Unit (TPU) if otherwise eligible and approved by the gaining U.S. Army Reserve (USAR) commander prior to discharge from the ARNG and transfer to the IRR or ING. 8. NGB-ARH Policy Memorandum 09-026, dated 13 August 2009, states that all Soldiers are authorized to extend 12 months out from their scheduled ETS date either with or without a retention bonus. Rule B applies to Soldiers eligible for a retention or other bonus per current bonus policies as published by the NGB- Education (EDU) and or the NGR 600-7. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The Board noted the email traffic dated from January 2016 thru May 2016, which confirmed that several attempts were made to finalize the applicant’s paperwork necessary to complete the reenlistment process before becoming ineligible. However, through no fault of the applicant’s, the unit rear detachment did not process his reenlistment packet before the tax-free eligibility period closed. The Board also noted and concurred with the IG’s favorable recommendation for the applicant to receive his reenlistment bonus in a combat zone tax exclusion location. 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 the Army records of the individual concerned be corrected by showing the applicant’s DA From 4836 (Reenlistment Packet) was received, processed, and approved prior to his departure from a CZTE and was authorized to receive his reenlistment bonus, tax exempt. 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 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. DODI 1205.21, in effect at the time, requires each written agreement will be authenticated with the service representative’s signature, the service member’s signature and the witnessing officer’s typed name, grade and signature. 3. NGR 600-7 paragraph 1-18(3)(c) states that the status of incentives on unit transition that has been paid or is pending is predicated on the following: (1) A Soldier may continue to receive full incentive payment, if otherwise eligible, when the Soldier is transferred or reassigned to— (a) Another SELRES unit of the ARNG. Assignment will be in a bonus MOS/AOC or to a bonus designated unit, where possible. (b) Another unit of the ARNG outside of commuting distance. Assignment in a bonus MOS/AOC or to a bonus-designated unit is preferred, but not necessary. This is provided there are no assignments available in the Soldier’s bonus MOS/AOC or type of unit within commuting distance. (2) Transfer between RCs of the Army should be the priority and used instead of reassignment to the IRR or Inactive Army National Guard (ING). (a) As specified in subparagraph (2) above, every effort should be made to retain Soldiers who have been contracted for an incentive in the SELRES. Assignment to other units within the same Component should have priority. As a second priority, commanders must consider transfers between RCs of the Army instead of reassignment or transfer to the IRR or ING. (b) The term transfer as used in this paragraph refers to the personnel actions necessary to affect the change in strength accountability between the ARNG and the USAR. Enlisted Soldiers require discharge and enlistment actions, while officers require appointment and Federal recognition actions. (c) When an ARNG unit is in transition and the Soldier cannot be reassigned or used in another unit of the same component. The ARNG Soldier will be offered an opportunity to transfer to an USAR TPU if otherwise eligible and approved by the gaining USAR commander prior to discharge from the ARNG and transfer to the IRR or ING. 4. NGB-ARH Policy Memorandum 09-026, dated 13 August 2009, states that all Soldiers are authorized to extend 12 months out from their scheduled ETS date either with or without a retention bonus. Rule B applies to Soldiers eligible for a retention or other bonus per current bonus policies as published by NGB-EDU and or NGR 600-7. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008152 6 1