BOARD DATE: 7 February 2020 DOCKET NUMBER: AR20170012788 APPLICANT REQUESTS: in effect, correction of his military record to show he is eligible to retain his Selected Reserve Incentive Program – Enlistment Bonus in the amount of $20,000 based upon completing his 6 year service obligation in the Reserve Component. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 February 2010 * Certificate of Completion for Unit Environmental Awareness Course dated 3 February 2013 * Certificate of Participation for Best Warrior Competition for Fiscal Year 2013 * Memorandum for Record dated 31 March 2016 * Military Identification Card expired June 2017 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States 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 enlisted in the U.S. Army Reserve (USAR) in 2009. In 2012, he was named Soldier of the Year. He states he attended all his required battle assemblies until 2017 when he completed his 6 year service obligation. He states records show he only served 26 months out of his 72 month obligation and because of this error, he now has a bonus enlistment recoupment action. He concludes by saying he made many sacrifices and now finds he is also ineligible for Department of Veterans Affairs benefits due to this administrative error. 3. The applicant enlisted in the USAR on 17 June 2009 for an 8 year period of service contracting to service 6 years in the active Reserve Component as shown on his DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States). Concurrently he completed a Certificate and Acknowledgement USAR Service Requirements and Methods of Fulfillment Form with a service representative. By signing this form he agreed to serve 6 years as an assigned member of a troop program unit and 2 years as a member of the Individual Ready Reserve. He acknowledged he was a non-prior service (NPS) applicant. He was authorized the following entitlements: * NPS Montgomery GI Bill Kicker in the amount of $350 * NPS enlistment bonus in the amount of $20,000.00 * Student Loan Repayment Program (not to exceed) $20,000.00 4. Within the Reserve Component Annex to his initial enlistment documents there were specific instructions concerning unsatisfactory participation. It stated he understood that if he failed to satisfactorily participate and complete his obligatory period of active Reserve service his entitlement to assistance under the Montgomery GI Bill, bonus payments and loan repayments may be terminated and he may be required to repay all or a portion of the funds he received from the U.S. Government. 5. In conjunction with his enlistment, a Government official and the applicant signed a DA Form 5261 (Selected Reserve Incentive Program – Enlisted Bonus Addendum) wherein he contracted to enlist in a troop program unit for a cash bonus under the Selected Reserve Incentive Program in the amount of $20,000.00. He contracted to serve for a minimum of 6 years. a. This incentive was an entitlement based on a unit vacancy authorized by Headquarters, Department of the Army for a bonus entitlement. He enlisted for a specified unit located in Brockton, Massachusetts for military occupational specialty (MOS) 63B (Motor Vehicle Mechanic). Under Section IV (Obligation) it states, "I must serve satisfactorily, as prescribed by USAR regulations, unless excused for the convenience of the Government." b. Under Section V (Entitlement) it stated an initial payment of 50 percent of the total authorized bonus would be paid upon completion of initial active duty for training and qualifying in an MOS. The remaining unpaid portion of the non-prior service enlistment bonus would be paid in two subsequent payments of 25 percent of the total bonus paid upon successful completion of his second and fourth year of his enlistment term of service. c. Under Section VII (Termination) his enlistment bonus will be terminated for becoming an unsatisfactory participant under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures). A classification as an unsatisfactory participant, meaning not attending his unit’s regularly scheduled battle assemblies, could result in recoupment action of the bonus previously paid and cancellation of payment of the remaining bonus. d. Under Section VIII (Recoupment) states he is subject to recoupment for failing to satisfactorily serve for 72 months. This amount can be prorated based on the number of months he satisfactorily served multiplied by a proportionate monthly dollar amount (total bonus authorized divided by 72 months). The product will be subtracted from the total amount of the bonus paid including the initial and subsequent payments. If this calculation indicates overpayment to the applicant, then he will be required to refund that amount to the U.S. Government. Any refund of a paid bonus will not affect his period of obligation to serve in the USAR. 6. On 14 September 2009 the applicant entered active duty for training for his initial entry training requirements. On 4 February 2010 he was honorably released from active duty upon the completion of his required active duty service. He had served on active duty for 4 months and 21 days. He was awarded MOS 91B (Wheeled Vehicle Mechanic/Repairer). (There was a conversion and realignment of MOSs during this period. Though he contracted for MOS 63B, due to the conversion he was awarded MOS 91B.) 7. On 28 July 2015, Headquarters, 99th Regional Support Command published Orders 15-209-00208 reassigning the applicant from his troop program unit to the USAR Control Group (Reinforcement) effective 1 July 2015. This order shows his request was voluntary. The authority for the reassignment is shown as Army Regulation 140-10 (Assignments, Attachments, Details, and Transfer). 8. On 20 June 2017, Orders D-06-715410 were published by the U.S. Army Human Resources Command honorably discharging the applicant from the USAR based upon completion of his 8 year military service obligation. 9. The applicant’s interactive Personnel Electronic Records Management System record did not contain letters or notifications sent to the applicant by his troop program unit chain of command notifying him he had unexcused absences from his required battles assemblies. Within his electronic record there is a DA Form 5016 (Chronological Statement of Retirement Points) showing the applicant completed 5 years of qualifying service for non-regular retired pay. During the retirement year from 18 June 2010 to 17 June 2011 he received only 30 inactive duty points out of a possible 48 inactive duty points for attending battle assemblies and he received no active duty points (annual training requirement is 14 days). Also during the year from 18 June 2013 to 17 June 2014 he only received 36 inactive duty points for battle assembles out of a possible 48 points. During this specific year he had 21 active points (annual training). (The obligatory attendance points at battle assemblies for all Reserve Component personnel is 48 points which averages out to monthly attendance (12 battle assemblies comprising 4 specific pay periods or 1 point for each pay period of 4 hours.) 10. After reviewing his on-line retirement point’s detail information, there is no record showing he attended his required battle assemblies during the period from 18 April 2010 through 10 July 2010 (May and June), July 2011, and September 2011. As the applicant’s unit training schedule is not filed in his personnel record nor did he provide a copy of it, it is difficult to determine his unexcused absence record from his excused absence record. 11. In support of his application, he provided the following evidence for the Board’s consideration: a. He received a Certificate of Participation from his battalion commander and command sergeant major who commended him for competing in a battalion Best Warrior Competition during the period from 15 November to 18 November 2012. He was commended for his dedication and commitment to Warrior Tasks. b. He received a Certificate of Completion showing he successfully completed the Unit Environmental Awareness Course in compliance with applicable U.S. Codes and military regulations on 3 February 2013. c. On 6 May 203 he received a congratulatory letter from a Stoughton Public Schools school principal thanking him for volunteering his time and services to an annual school fair. d. On 21 March 2016, a Human Resources Sergeant from his former troop program unit prepared and signed a memorandum for record attesting to the fact the applicant has successfully fulfilled his 6-year obligation in the USAR. The sergeant stated the applicant should not have his bonus recouped. She states, "According to the statements [the applicant] is receiving from [Defense Finance and Accounting Services] he only performed 26 months of his contract." 12. In the processing of this application, the staff of the Army Review Boards Agency requested an advisory opinion from Headquarters, U.S. Army Reserve Command. In turn they responded on 25 November 2019 recommending denying the applicant his requested relief. Within the written advisory it states: [The applicant] enlisted in the [USAR] on 17 June 2009, for a 6-year term, with a $20,000 Non Prior Service Enlistment Bonus (NPSEB), in Military Occupational Specialty 63B, Light Wheel Vehicle Mechanic. The NPSEB was terminated on 11 September 2011, for unsatisfactory participation. Army Regulation (AR) 601-210, Chapter 10-8a(1) states 'termination of eligibility to an incentive will occur if a Soldier becomes an unsatisfactory participant per AR 135-91.' AR 135-91 states 'Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue in any 12-month period a total of nine or more unexcused absences from scheduled Inactive Duty Training periods [battle assemblies].' [The applicant] accrued 12 unexcused absences from 6 February 2011 to 11 September 2011. 13. On 4 December 2019, the staff of the Army Review Boards Agency mailed the applicant a copy of the advisory opinion for his review and rebuttal. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the enclosed advisory opinion and the lack of rebuttal submitted by the applicant, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Department of Defense Instruction (DODI) 1205.21 (Reserve Components Incentive Programs Procedures) governs the Reserve Component incentive programs and provides procedural guidance. a. Paragraph 6.6 (Relief from Termination) states persons who move from one location to another may continue incentive eligibility if they remain in the Selected Reserve of the same Military Department and are assigned to an incentive-eligible unit or incentive eligible critical skill. b. Paragraph 6.7 (Nonavailability) states members of the Ready Reserve who incur a period of authorized nonavailability (i.e. temporary overseas residence, missionary obligation, or overseas employment obligation, etc.,) shall have their incentive suspended. c. Paragraph 6.8 (Termination and Recoupment) states 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. Unless granted relief, as covered in paragraphs 6.6 and 6.7, above, the member must refund a prorated amount to the Government, if such termination is for certain reasons. d. Paragraph 6.9 (Exception to Recoupment) states recoupment is not required in the certain circumstances when an incentive is terminated. These circumstances include death, injury or illness, or other impairment not the result of the member’s own misconduct. 4. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) defines Army National Guard of the United States and U.S. Army Reserve service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. a. The statutory military service obligation is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. Soldiers who enlisted on and after 1 June 1984 incur an 8 year statutory military service obligation. The statutory military service obligation can be terminated by the Army prior to its fulfillment. Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier's statutory obligation. b. A contractual obligation is acquired when an individual voluntarily enters into an agreement to serve in a military status for a specific period of time. A contractual obligation may run concurrently with the statutory obligation. It may extend past the length of the statutory obligation; it may be added to the statutory obligation; or it may exist where no statutory obligation was incurred. (1) The enlistment or appointment contract in an active or Reserve Component of the U.S. Armed Forces is assumed voluntarily by enlisting or accepting an appointment and signing an agreement. The contract must comply with laws and regulations in effect when the individual is enlisted or appointed. (2) The Ready Reserve obligation is part of the statutory and/or contractual obligation. It is that portion of the statutory and/or contractual obligation which requires a Soldier to remain in an active Reserve Component unit or a Ready Reserve Control Group. c. Troop program unit Soldiers are required to participate in at least 48 inactive duty training periods, and no less than 14 days of annual training (active duty). Satisfactory participation is defined as attending all scheduled inactive duty training periods unless excused by a unit commander or granted an authorized absence. Soldier present at a scheduled training period will not receive credit for attendance unless they are wearing the prescribed unit and present a neat and orderly appearance. They must perform their assigned duties in a satisfactory manner as determined by the unit commander. Soldiers who do not receive credit for attendance will be charged with an unexcused absence for each period. When authorized by a unit commander, a Soldier can perform equivalent training which must be performed in a pay status within 60 days of the absence. d. Soldiers will be charged as an unsatisfactory participant when, without proper authority, they accrue in any 12-month period a total of nine or more unexcused absences from scheduled inactive duty training periods, fail to obtain a unit of assignment during an authorized absence period or fail to attend or completed annual training. Soldiers will be processed for reassignment or separation as appropriate. e. When a Soldier’s absence was justified, but the reason is not one the unit commander can excuse, an exception may be granted. Requests for exception will be sent to the approval authority only when fully warranted. Normally a Soldier’s overall performance and record of attendance at previously scheduled training are the primary factors in granting exceptions to unexcused absences. General officer commanders are authorized to grant exceptions to unexcused absences. The general officer commander may further delegate this authority to commander’s who are lieutenant colonels or above. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012788 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1