ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 August 2019

	DOCKET NUMBER:  AR20170011397


APPLICANT REQUESTS:  an exception to policy for recoupment of her Non-Prior Service Enlistment Bonus (NPSEB) and the Student Loan Repayment Program (SLRP) incentive

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* (online) DD Form 149 (Application for Correction of Military Record)
* Five physical profiles, dated between 12 June 2011 and 6 April 2013
* Annex E to DD Form 4 (Non-prior Service Enlistment Bonus Addendum)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Texas Army National Guard memorandum, Subject:  Line of Duty Investigation
* DA Form 2823 (Sworn Statement)
* Excerpts of Family Care Plan (FCP)
* Request for discharge due to FCP

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, in effect:

   a. During pre-mobilization training in June 2011, she fractured her L3 vertebrae and injured the L2-L3 disc during rollover training.  She was accused of faking it to avoid the deployment and wasn't afforded the opportunity to see a doctor until August 2011.  She had a Line of Duty Investigation (LODI) conducted and now receives Veterans Administration (VA) disability for the injury.  
   
   b. Her unit, the 236th Engineer Company, was preparing to return home.  She wanted to avoid confrontation, so she asked the acting Readiness Noncommissioned Officer (NCO) if transferring would affect her bonus since it was based on her military occupational specialty (MOS).  She was reassured on multiple occasions that her bonus would be fine because she held a qualifying MOS at the time of the transfer.  Months prior to her request, she was asked to write a sworn statement, as a witness to an incident that involved the Readiness NCO’s inappropriate behavior towards a female Soldier.  She only hopes that the Readiness NCO did not intentionally mislead her to believe her bonus would not be affected.
   
   c. Once arriving to the 822nd, she was given a military occupational specialty qualified (MOSQ) date of May 2012.  A few weeks prior to the MOSQ, she was Soldier Readiness Program (SRP).  That is when she found out she was pregnant; therefore, she could not attend.  Due to her husband also being assigned to the 822nd, she was not transferred back during her pregnancy.  This was done just in case she went into labor over a drill weekend, her husband could be there. 
   
   d. Within a month of their son being born, her husband was in a motorcycle accident.  Her husband broke both of his arms, so once again, she remained in the 822nd.  Due to some extenuating circumstances following the accident, she & her husband were unable to come up with a valid family care plan (FCP); therefore, was given a general discharge under honorable conditions in December of 2014.
   
   e. She is currently a full time student, while her husband is still dealing with the mental and emotional damage from his accident.  Her husband has not been able to work, which has affected her ability to pay a debt.  She trusted her leadership when she was told she had nothing to worry about, when asked on multiple occasions, regarding her bonus not being affected.  

3.  The applicant provides:

   a. Five physical profiles, dated 12 June 2011, 2 August 2011, 21 September 2011, 13 December 2011, and 6 April 2013.  Four of the five profiles restricted her, to name a few, from riding in a military vehicle for at least 12 hours a day, and wearing body armor and load bearing equipment (LBE) for at least 12 hours a day.  The profiles were issued due to her head and neck injuries.  The fifth profile was issued for her pregnancy.
   
   b. Annex E to DD Form 4 (Non-prior Service Enlistment Bonus Addendum), page 3 of 6, dated 17 March 2009 reflects she understood:
   
* she was to receive a total bonus of $15,000.00 for the enlistment bonus options in Section II
* she will forfeit 50% of the total bonus amount if she did not ship on the original scheduled IADT, STO 1 or STO 2 ship date of 13 may 2009
* if she did not ship within 365 days of her enlistment date, the incentives described herein will terminate without payment
* if she fails to become fully qualified in the Army MOS within 24 months of her enlistment, the incentives described herein will terminate without payment
   
   c. DA Form 2173, dated 22 November 2011, reflects she was being examined for possible injuries to her head and back as a result from her falling down from the gunner’s position during an MRAP Rollover Drill training that took place on or about 10 June 2011.
   
   d. Texas Army National Guard (TXARNG) memorandum, dated 23 November 2011, Subject: Line of Duty Investigation, reflects that after the review of the evidence provided, the injuries were determined in the line of duty.
   
   e. DA Form 2823, dated 15 April 2012, reflects the applicant wrote a sworn statement regarding an incident that took place on 15 April 2012, which involved the Readiness NCO and a female Soldier.
   
   f. Family Care Plan (FCP) and counseling statement, dated 10 September 2014, reflect she was counseled on the requirement to have a FCP due to being a dual military family.  The FCP was incomplete, lacking her spouse’s signature, her spouse’s commander’s signature, along with the necessary legal documents.
   
   g. On 6 November 2014, she requested to be separated from the Army National Guard based on her inability to formulate a workable (sic) FCP.  In addition, she waived her right to an administrative board.

4.  A review of the applicant’s service record shows:

   a. She enlisted in the Nebraska Army National Guard on 17 March 2009.
   
   b. She was honorably discharged from the Texas Army National Guard as evidenced by orders 336-023, dated 2 December 2014.  The basis of her discharge was her “inability to perform prescribed duties due to parenthood.”
   
5.  National Guard Bureau advisory opinion, dated 31 May 2019, recommends partial approval and further states:

“Based on the evidence and the information above, it is the recommendation of this office that the Soldier retain eligibility for her NPSEB and SLRP until the date of separation, qualifying for 68 out of 72 months of a $10,000 bonus and qualifying for five annual payments toward her student loans.  Additionally, she should retain full eligibility for her off-peak bonus ($5,000) as she fulfilled the requirement for this add-on bonus by shipping for IADT during the prescribed timeframe.  The accusations directed toward her as a result of her pre-mobilization injury contributed to her desire to transfer units. Furthermore, she was misinformed about the consequences of such transfer and the option to requalify.  She transferred units with the intent to requalify (as instructed); yet her pregnancy and the subsequent accident of her husband led to the Soldier's delay and eventual inability to qualify in her new MOS.  The Soldier entered into a contract upon her enlistment in 2009 with the intent to serve in the ARNG and did so faithfully until the needs of her family exceeded her ability to successfully conduct her duties. There is no evidence to suggest how her contract evolved throughout the 1st process (UIC or critical skill) but the incentives remained active throughout her transfer to the TXARNG.  There is no evidence to indicate any wrongful intent of the Soldier and the time served in the TXARNG was honorable.  Therefore, this office recommends approval of the Soldier's request to retain her off-peak bonus and the portion of both her NPSEB and SLRP for time served prior to her discharge on 1 December 2014.  This office recommends denial for the portion of the request pertaining to incentive eligibility for time not served.

6.  Army Regulation (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 interest of the United States, the debt was incurred while on active duty or in an active status, and the Soldier received an honorable discharge (if separated from active duty).  Under Title 10, United States Code (USC), section 4837 a debt acknowledged as valid may be remitted or cancelled.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined partial relief was warranted.  Based upon the NGB advisory finding and recommendation and the applicant failing to provide a rebuttal to those findings, the Board concluded that permitting the applicant to retain her eligibility of the NPSEB and SLRP until the date of separation would be appropriate.  The Board recommended that the applicant qualify for 68 out of the 72 months of the $10,000 bonus and five annual payments towards her student loans.

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 the applicant retained her eligibility for her Non-Prior Service Enlistment Bonus (NPSEB) for the period of 68 months of the total 72 month period, as well as her Student Loan Repayment Program (SLRP) for a period of five annual payments.  Therefore, any prior recoupment exceeding those eligibility periods will be refunded back to the applicant.
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 retaining the total ORIGINAL eligibility period for both her NPSB and SLRP.
	 
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.  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, the debt was incurred while on active duty or in an active status, and the Soldier received an honorable discharge (if separated from active duty).  Under Title 10, United States Code (USC), section 4837 a debt acknowledged as valid may be remitted or cancelled.

ABCMR Record of Proceedings (cont)	 AR20170011397


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