ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20170013752 APPLICANT REQUESTS: her records be corrected: * to show her attendance at unit training in December 2008, February, March and April 2009 as excused absences * to show she was present for unit training on 7 June 2009 * to show her service as satisfactory for all purposes to include eligibility for receipt of payments via the Montgomery GI Bill (MGIB) * that amounts previously recouped be returned to her * that terminated MGIB Kicker payments be paid to her * to show her eligibility for educational and other benefits she is entitled APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * an 8-page Brief in Support of Application * MGIB Selective Reserve Kicker Incentive Addendum * Non-prior Service Enlistment Bonus Addendum * a letter * a 2-page electronic mail (email) * Arrest Report * Petition for Order of Protection filed 26 January 2009 * 2 DA Forms 2823 (Sworn Statement) * Petition for Order of Protection filed 17 April 2009 * a self-authored statement * a 4-page email * 2 Memorandums for Record * National Guard Bureau Form 22 (National Guard Report of Separation and Record of Service) * 2 Military Funeral Honors Duty Records 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, through counsel, states, in effect: a. The applicant enlisted in the Illinois Army National Guard (ILARNG), entering service on 28 December 2007. At the time, she entered into contracts providing for certain benefits to include the MGIB Kicker incentives in the amount of $200 per month, provided she abided by the conditions of the contracts which called for her to remain a satisfactory participant. Due to conditions beyond her control, the applicant exceeded the threshold for unexcused absences in a one year period. b. The applicant tried to resolve her absences with her unit commander to no avail. Army Regulation (AR) 135-91 (Service Obligations, Method of Fulfillment, Participation Requirements, and Enforcement Provisions) grants unit commanders the authority to excuse absences due to circumstances beyond the Soldier’s control; however, the unit commander did not do so although it appears the unit commander in 2010 believed the absences should be excused. c. The applicant's records should be corrected to show the absences in 2009 were excused due to the actual and threats of domestic violence impacting her ability to attend unit training. * Absences in February, March, and April 2009, were directly attributable to domestic violence * The applicant was fearful of remaining in the community where the unit training was held after being assaulted by her abuser in front her daughter on 8 January 2009 * Immediately after her court hearing on 13 February 2009, she met with her chain of command to discuss the issue and how it was affecting her drill attendance * In order to avoid being in a location where her abuser could attack her, she missed unit training in March and April 2009 * On 16 April 2009, the abuser tried to kick down her mother’s door, threw a Molotov cocktail through the window of the home, and covered the applicant’s truck in gasoline in an attempt to burn it * On 17 April 2009, she was granted a protective order and she attended drill for May 2009 * In June 2009, the abuser was convicted and sentenced to 6 years imprisonment. The applicant attended drill in June 2009; although records show she was absent on 7 June 2009, a sworn statement by PFC W______ states she was present * The applicant attended annual training in June 2009, and spoke with the commander about making up the missed drill times. The applicant was to appear at the unit’s Chicago location at 6 am on Saturday; however, at the time, the applicant was in a battered women’s shelter that would not unlock its doors or allow persons to leave before 6am. The applicant contacted the unit but they were unable to come up with a viable solution d. The applicant's absences were excused as a functional matter by her command, whether documented as such or not. * AR 135-91, paragraph 4-14a, states a Soldier is an unsatisfactory participant when nine or more unexcused absences occur in a 12 month period * AR 135-91, paragraph 6-2, provides when a Soldier is an unsatisfactory participant, the commander will initiate proceedings that result in the reassignment, transfer or separation of the Soldier * Although the applicant is treated as an unsatisfactory participant for the purpose of the benefits discussed, separation proceedings were not initiated and she was allowed to continue in the ILARNG under a rehabilitation program * In essence, the command functionally excused her absences by treating her as a satisfactory participant while hobbling her with a record and denial/recoupment of benefits as if she was an unsatisfactory participant * Error was committed by the ILANG by failing to inform the applicant of her right to appeal the recoupment of her Kicker bonus. * The applicant is unaware that she was ever notified of any formal appeal process e. The applicant's absences were clearly attributable to circumstances beyond her control. To remain in the area in which her drills were conducted would have exposed her to a wrathful, criminal abuser, one currently serving six years in prison. She was placed in a position of having to choose between protecting herself and her child from him or attending drill. As soon as the dilemma became apparent, she consulted with a noncommissioned officer and others in her chain of command, and reasonably believed that her absences would likely be excused. Her attendance after the threat was arrested and jailed was satisfactory through her discharge and her commander functionally treated her as a satisfactory participant. 3. The applicant enlisted in the ILARNG on 28 December 2007. a. The applicant signed a Non-Prior Service Enlistment Bonus Addendum on 28 December 2007, for $20,000. b. The addendum included MGIB-SR and MGIB Kicker payments. The applicant received $10,000 on 30 July 2008. 4. The applicant was honorably discharged on 27 December 2013. She served 6 years of net service during this period. 5. The applicant provides: a. A sworn statement dated 7 June 2009, in which W______ stated she met the applicant at the door, she was late for formation, and they walked to the drill floor for her to check in. They could not find MSG R____ but she was present for drill on the day in question. b. A letter dated 25 February 2010, in which a physician noted the applicant was seen in the health center on December 2008 and excused her from work and/or school and any kind of strenuous activity through 15 January 2009. c. A petition for order of protection filed by the applicant on 26 January 2009, against W_______, which states the applicant was attacked in a hallway by W_______ on 8 January 2009. d. An arrest report which shows W______ was arrested on 16 June 2009, for aggravated arson with a known person present and violation of an order of protection among other offenses cited. e. An email dated 9 October 2009, in which the Assistant Operations Noncommissioned Officer noted the unit commander allowed the applicant to continue in the ARNG under the rehab program, but was unable to change her absences to allow her to apply to the State to get her bonus returned. According to the S1, each drill missed required a letter explaining the circumstances resulting in her not attending, or contacting the unit to request split, or code A (leave). f. An email dated 26 April 2010, titled Inspector General follow-up, in which MSG O’____ stated the last information he had was that the company commander denied the applicant’s request. The commander had stated the applicant was given multiple chances to rectify the situation, keep the chain of command informed and drill in Wisconsin to split drill. The applicant was given sufficient time and instruction to continue serving in an honorable status. According to the Readiness NCO, the applicant did not follow instructions, failed to submit paperwork prior to leaving and only when her benefits were taken did she react to the situation. g. A memorandum for record dated 15 August 2010, in which her commander stated, after reviewing the evidence she provided, he did not find just cause to recommend changing her attendance codes. h. A memorandum for the Department of Education dated 17 September 2010, in which her present commander requested the MGIB, which was suspended due to her absences while assigned to her previous unit, be reinstated. Her commander stated the applicant had been in compliance with drill attendance policy for the past 9 months. i. A sworn statement from the training NCO dated 21 December 2012, in which he notes on or about 13 February 2009, the applicant came to the office to discuss her domestic situation and how she was being coded for drill. He remembered the applicant calling in several times due to her domestic situation and messages were passed to the chain of command. He further noted the applicant came in on several occasions to try and correct her codes and spoke with the commander. 6. On 30 October 2018, an advisory opinion was obtained from the Chief, Special Actions Branch, National Guard Bureau, who recommended disapproval of the applicant's request. The advisory official reviewed the applicant's available service records and concluded: a. The applicant signed a Non-Prior Service Enlistment Bonus Addendum on 28 December 2007, for $20,000. She was discharged on 27 December 2013. b. The addendum included MGIB-SR and MGIB Kicker payments. The applicant received $10,000 on 30 July 2008. There is no longer information to verify her unsatisfactory participation for December 2008, February, March, April and 7 June 2009, the applicant was flagged on 4 April 2009 for unsatisfactory participation. There is no evidence the flag was ever removed. c. Her incentives were terminated with credit for 15 months for time served, and a recoupment of $5,833.33 was initiated. A memorandum for the Department of Education from the unit commander dated 17 September 2010 requests reinstatement of benefits. There is no evidence the benefits were resumed. d. The applicant was not allowed to deploy due to medical reasons on 5 November 2011. Her record contains a flag dated 27 December 2013 noting a flag initiation date of 2 March 2013. e. The applicant completed her 6 year term of service with an honorable discharge on 27 December 2013. f. There was no evidence of a request for an exception to policy memorandum or follow up action noted in the applicant’s packet or records. 7. The applicant, through counsel, responded to the advisory opinion on 3 December 2018, stating, in effect: a. For 4 years subsequent to the brief period of absences from unit training while she was being threatened with domestic violence, she resumed satisfactory attendance at monthly drills, attended annual training, and was honorably discharged. b. Her command failed to initiate discharge proceedings for unsatisfactory participation (as regulations appear to have called for), and instead allowed her to continue to perform the obligations of her contract essentially waiving any claim that she was an unsatisfactory participant. c. There is a fundamental lack of fairness and justice in the ARNG getting the benefit of six years of commitment, exposure to potential for deployment, weekend and annual training, but the applicant not receiving what any other ARNG Soldier honorably discharged after fulfillment of her contract would receive. d. The advisory opinion accurately quotes the effects of unsatisfactory participation, but fails to acknowledge her failure to attend was due to reasons beyond her control. The applicant was in fear for her safety, indeed for her life, and took the actions necessary to absent herself from the threat. Additionally, the applicant’s 2013 flag was due to her pregnancy. e. It is unclear what the advisory opinion was referring to by saying that there was no request for an exception to policy as evidence provided clearly demonstrates the applicant’s frequent attempts to have her absences reclassified in light of her circumstances with one exhibit demonstrating support from her commanding officer with respect to her education benefits. Of course, if her absences should have been excused for educational benefits, they likewise should have been excused for all purposes. 8. 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found a preponderance of the evidence supports partial relief. The Board further found that the evidence provided by the applicant and her counsel and the documents obtained from her service record are sufficient to fully and fairly consider her request without a personal appearance. 2. The Board noted that the record shows the applicant was given an opportunity to make up her unexcused absences, but failed to follow the instructions she was given. The Board agreed that any resulting loss of benefits and/or recoupment of benefits already paid was a natural outcome of her failure to act on the opportunity she was given. The Board found no basis for correcting her record to show her absences from unit training in December 2008, February, March and April 2009 were excused. 3. The Board agreed that the evidence does support correction of her record to show she was present for unit training on 7 June 2009. The sworn statement of a fellow Soldier confirms her presence at unit training on 7 June 2009. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: 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 and Army National Guard records of the individual concerned be corrected by showing she was present for duty on 7 June 2009. 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 any relief in excess of that described above. 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. Army Regulation 135-91 (Service Obligations, Method 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. It discusses excused absences and the policy on pregnancy. Finally, the regulation covers enforcement procedures regarding unsatisfactory participation. ABCMR Record of Proceedings (cont) AR20170013752 8 1