ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 December 2019 DOCKET NUMBER: AR20170015347 APPLICANT REQUESTS: an exception to policy (ETP) to keep his Enlistment Affiliation Bonus (EAB). 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) * Orders releasing applicant from active duty * ETP memorandum from US Army Reserve (USAR) Command FACTS: 1. The applicant states: * he requests to have the EAB for his 3-year term, which he is about to complete * he would like to receive the $7,500 lump sum in the full amount * he did active duty time from March 2011 to December 2011 for a deployment with the Army National Guard (ARNG) * he went into the USAR because of the bonus he never received * he served out his ARNG contract * he was waiting to send in his application for correction after he had completed his 3-year term * he was in the Individual Ready Reserve for 2 years, ARNG for 3 years and on active duty from March 2011 through December 2011 2. The applicant provides a letter from the G-1 of US Army Reserve Command regarding the applicant's EAB. The letter is undated and states: * when the applicant was offered the EAB, official policies were inconsistent in their definition of "active duty" as it pertains to the EAB * as a result of the varied interpretations, Soldiers were offered the EAB in error * the G-1 does not have the authority to pay the EAB to the applicant * the applicant was encouraged to apply direction to the Army Review Board Agency to pursue any perceived injustice 3. The applicant's service records contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) showing he was honorably discharged from the ARNG on 9 February 2013. His NGB Form 22 shows he served in Iraq from 26 March 2011 through 6 November 2011, in an active duty status. 4. The applicant enlisted in the USAR on 12 April 2015 for a period of 3 years. Upon his enlistment, he signed to receive the EAB. The addendum regarding the EAB states: * the service representative is responsible for verifying eligibility for the EAB * the applicant states he was eligible to reenlist or extend on active duty service at the time he was released * the applicant understands he must satisfactorily serve * he will be paid in a lump sum payment * his entitlement to the EAB is terminated if he becomes an unsatisfactory participant * he was eligible for a EAB by affiliating from Individual Ready Reserve into a USAR Selected Reserve unit for 6 years for the amount of $20,000 5. The applicant and the service representative, a sergeant first class (SFC), signed the EAB form on 24 February 2015. Their signatures were witnessed by an officer on the same day. 6. The applicant was discharged from the USAR on 25 September 2017 with a General, Under Honorable Conditions discharge for Unsatisfactory Performance. 7. Army Regulations 135-178 (Enlisted Administrative Separations) and 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) define unsatisfactory participation and unsatisfactory performance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contention was carefully considered. The Board determined that the government cannot be bound by the erroneous act of its agents, even when committed in the performance of their official duties. The Board finds that neither misrepresentation by a witnessing official nor misinformation provided by military officials provides a legal basis for relief BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL : : : GRANT PARTIAL : : : GRANT FORMAL HEARING :XXX XXX :XXX 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. Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedures) provides the procedures for Reserve Component Soldiers to remain eligible for incentive programs. 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., the member must refund a prorated amount to the Government, if such termination is for failing to participate satisfactorily in required training during the entire period of service agreed to, in accordance with the written agreement, unless the failure to participate satisfactorily was due to reasons beyond the control of the member (i.e. death, injury, illness, or other impairment). 2. Army Regulation 135-178 (Enlisted Administrative Separations) provides the procedures for administrative separation of Army Reserve Soldiers. a. Chapter 9 states, a Soldier may be discharged when it is determined the Soldier is unqualified for further military service by reason of unsatisfactory performance. Commanders will take action to discharge a Soldier for unsatisfactory performance when it is clearly established that: * Soldier will not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier. * the seriousness of the circumstances forming the basis for initiation of discharge proceedings is such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale * there is a likelihood that the Soldier will be a disruptive influence in present or future duty assignments * there is a likelihood that the circumstances forming the basis for initiation of separation proceedings will continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely b. Chapter 13 states, a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed by AR 135– 91, chapter 4. 3. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) prescribes the method of fulfilling a USAR service obligation. a. Paragraph 4–6, states unsatisfactory participation as a soldier assigned to the IRR states, an IRR soldier will be determined to be an unsatisfactory participant under the following conditions: * when ordered to AT if, without proper authority, the soldier fails to attend or complete the entire period of AT; * failure to comply with a second request to report for annual muster * when a soldier fails to report for muster duty and has not been excused by proper authority, a second notice to report will be sent by certified mail (return receipt requested) * unless excused by proper authority, on failure to comply with the second notice, or on receipt that notification was refused, unclaimed, or otherwise not delivered, the soldier will be determined to be an unsatisfactory participant * failure to report a change of address to CDR, HRC-St. Louis within 45 days following the change of address * failure to comply with a second notice to complete and return official military correspondence within 45 days of the date of the second notice. This includes qualification record forms required by Army Regulation 135–133, chapter 3 * when a soldier fails to comply or respond to official military correspondence within 45 days of the date of the notice, a second request for compliance will be sent by certified mail (return receipt requested) * unless excused by proper authority, on failure to comply with the second notice, or on receipt that notification was refused, unclaimed, or otherwise not delivered, the soldier will be determined to be an unsatisfactory participant b. Paragraph 6–2 states, when it has been determined that a USAR officer or enlisted soldier is an unsatisfactory participant per chapter 4, the immediate commander will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant as prescribed in this paragraph. An enlisted soldier assigned to an ARNGUS or USAR unit or an IMA duty position, will have procedures initiated against them if the commander determines the soldier has no potential for useful service under mobilization, the soldier will be processed for discharge from Reserve of the Army status pursuant to Army Regulation 135–178, chapter 13. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015347 3