ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

                  IN THE CASE OF:  

                  BOARD DATE:  11 February 2020

                  DOCKET NUMBER:  AR20170011237

APPLICANT REQUESTS: 

*	payment for unpaid bonus
*	payment for unpaid incentive pay
*	remaining education benefits
*	commissary and Post Exchange (PX) privileges
*	severance pay

APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:    

*	DD Form 149 (Application for Correction of Military Record)
*	Statement for Enlistment
*	Leave and Earnings Statement (LES)
*	HR. 6580 Hubbard Act
*	Public Law 110-317
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Permanent Change of Station (PCS) Orders

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 
(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 is requesting a review and payment for unpaid bonus pay, unpaid incentive 
pay, remaining education benefits, commissary and PX privileges and severance 
pay
*	he was discharged from the Army under Sole Survivorship 
*	he is asking for this compensation based off the Hubbard Act HR 6580
*	this includes $10,000 in unpaid bonus, unpaid incentive pay at $400 x 26 
months, 18 months of PX and commissary privileges, the rest of his education 
benefits which equals 20 percent, and separation pay for time served of 34 
months
*	these benefits are from the Hubbard Act for Servicemembers discharged for Sole 
Survivorship after 11 September 2001

3.  The service records contain a separation packet for the Board's consideration.  The 
separation packet contains the following documents:

	a.  a memorandum from Headquarters, 1st Brigade, dated 7 December 2007, 
directing the applicant be separated from the Army as a sole surviving son and being 
issued an Honorable discharge.

	b.  A DD Form 4187 (Personnel Action) dated 7 December 2007 wherein the 
applicant requests separation from the Army as a sole surviving son.

	c.  A DD Form 1330 (Report of Casualty), dated 6 February 2007, which shows:

*	the applicant's brother was killed in action
*	he was killed on 4 February 2007 in Baghdad, Iraq
*	the death was due to hostile action

	d.  .A letter from the applicant's father, dated 2 December 2007 wherein the father 
states his youngest son was killed in action and he believes the applicant should be 
allowed to get out of the Army because of his family's sacrifice.

	e.  A memo from the applicant, dated 28 February 2007 requesting to be discharged 
because of his brother's death.

4.  The applicant provides the following documents for the Board's consideration:

	a.  A Statement for Enlistment United States Army Enlistment Program, dated 
13 October 2005, which shows he enlisted for the following incentives:

*	US Army high school graduation bonus
*	army assignment incentive pay
*	US Army seasonal bonus
*	Army College Fund
*	US Army cash bonus 5 year
	
	b.  His May 2007 LES.

	c.  A summary of the HR 6580 Hubbard Act, which states:

*	the following benefits are authorized to a member of the Armed Forces who is 
discharged for the only surviving child in a family
*	continued payment through the original agreed upon service period of any 
bonus incentive
*	separation pay even though the member has completed less than 6 years of 
active service before discharge
*	transitional health care for 180 days after discharge
*	transitional commissary and PX benefits for 2 years after discharge

	d.  Public Law 110-317, which states:

*	a member of the Armed Forces who receives a sole survivorship discharge 
shall be entitled to separation pay
*	the amount of the separation pay shall be based on the years of active 
service completed
*	a member of the Armed Forces who receives a sole survivorship discharge is 
entitled to continue use of the commissary and PX for 2 years based on the 
date of separation or the date when the member is first notified of the 
members entitlement
	
	e.  A DD Form 214, which shows the applicant was discharged on 19 February 2008 
with 2 years, 4 months, and 7 days active duty for Surviving Family Member.

	f.  Orders 354-2991, published by Headquarters United States Army Infantry Center, 
dated 20 December 2005 directing the applicant on a permanent change of station to 
Fort Riley, Kansas.

5.   In the processing of this case, an undated advisory opinion was obtained from the 
Chief, Incentives and Budge Branch, Office of the Deputy Chief of Staff, G-1.  The 
advisory official stated they reviewed the applicant's records and find partial evidence 
for relief.  They recommend against payment of the full remaining bonus, but approval 
of the first anniversary payment of $2,500.  They recommend disapproval for incentive 
pay because it was unearned.  They recommend approval of the use of educational 
benefits.  They recommended disapproval of PX and commissary privileges since his 
privileges ended at his expiration term of service.  A copy of the complete advisory 
opinion has been provided to the Board for their review and consideration.

6.  A second advisory opinion, dated 5 December 2019, was obtained from the Chief, 
Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1.  The 
advisory official determined the applicant's separation based on surviving family 
member is not in accordance DOD 1315.15, dated 5 January 2007; however based on 
a lack of clarity in Army Regulation 635-200, chapter 5, they recommend supporting the 
separation payment in the amount of $5,169.52 based on the issued Separation 
Designator code and narrative reason for the separation.  A copy of the complete 
advisory opinion has been provided to the Board for their review and consideration.

7.  The applicant was provided a copy of this advisory opinion on 28 January 2020, to 
provide him an opportunity to comment he responded stating he did not have further 
evidence to provide.  He requested the Board find in his favor of his bonus payments.

8.  See below for applicable references.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents and 
evidence in the records.  The Board considered the applicant’s statement, his record 
and length of service, the terms of his contract and incentive agreements, the provided 
LES, the requests for his discharge due to sole survivorship and the reason for his 
separation.  The Board considered the two reviews and recommendations by the HQDA 
Deputy Chief of Staff G1 advising official and the language in the Hubbard Act and 
Public Law 110-317.  The Board found sufficient evidence to show that the applicant 
should be entitled to bonus and incentive payments in accordance with his enlistment 
contract documents, PX and Commissary privileges for two years and separation pay 
as specified in the advisory opinion.  The Board found insufficient evidence to support 
the applicant’s use of education benefits.  Based on a preponderance of evidence, the 
Board determined that corrections to the applicant’s record was appropriate.

2.  After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted.




























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 the Army records of the individual concerned be corrected by:

*	Paying the applicant the full amount the bonuses and incentives as shown 
in his 20051013 enlistment agreement (US Army high school graduation 
bonus, army assignment incentive pay, US Army seasonal bonus, US 
Army cash bonus 5 year), less the education benefits portion;
*	Payment of separation pay in the amount of $5,169.52, and;
*	Allowance for two years of PX and Commissary privileges following the 
applicant’s notification of these privileges, if not previously used after 
discharge.

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 providing the applicant any remaining education benefits.


												 
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.  The Hubbard Act - Amends federal employment, armed forces, military pay, and 
veterans' benefits law to authorize the provision of the following benefits to a member of 
the Armed Forces who is discharged at the member's request pursuant to a Department 
of Defense (DOD) policy permitting the early discharge of a member who is the only 
surviving child in a family in which the father or mother, or one or more siblings, served 
in the Armed Forces and, incident to such service, was killed, died as a result of 
wounds, accident, or disease, is in a captured or missing in action status, or is 
permanently disabled: (1) continued payment, through the original agreed-upon service 
period, of any bonus, incentive, or similar benefit to which the member was entitled 
during service; (2) separation pay, even though the member has completed less than 
six years of active service before discharge; (3) transitional health care, on the same 
basis as an active-duty member, for 180 days after discharge; (4) transitional 
commissary and exchange benefits, on the same basis as an active-duty member, for 
two years after discharge; (5) veterans' housing loan, employment and training, and 
basic educational assistance; (6) federal unemployment compensation; and (7) 
veteran's preference for federal employment purposes. 

3.  Public Law 110-317, states:

	a.  If a member of the uniformed services receives a sole survivorship discharge, the 
Secretary concerned

		(1) shall not require repayment by the member of the unearned portion of any 
bonus, incentive pay, or similar benefit previously paid to the member; and

		(2) may grant an exception to the requirement to terminate the payment of any 
unpaid amounts of a bonus, incentive pay, or similar benefit if the Secretary concerned 
determines that termination of the payment of the unpaid amounts would be contrary to 
a personnel policy or management objective, would be against equity and good 
conscience, or would be contrary to the best interests of the United States. 

	b.  A member of the Armed Forces who receives a sole survivorship discharge shall 
be entitled to separation pay under this section even though the member has completed 
less than six years of active service immediately before that discharge.  The amount of 
the separation pay to be paid to a member pursuant to this subsection shall be based 
on the years of active service actually completed by the member before the member’s 
sole survivorship discharge. 
	c.  A member of the Armed Forces who receives a sole survivorship discharge is 
entitled to continue to use commissary and exchange stores and morale, welfare, and 
recreational facilities in the same manner as a member on active duty during the two-
year period beginning on the later of the following dates: 

		1.  The date of the separation of the member. 

		2.  The date on which the member is first notified of the members entitlement to 
benefits under this section.
ABCMR Record of Proceedings (cont)		AR20170011237
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