ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 November 2019 DOCKET NUMBER: AR20170015838 APPLICANT REQUESTS: that his exception to policy (ETP) be approved for the dates 2 November 2013 and 9 September 2014 to retain his bonus per his DD Form 4836 (Oath of Extension of Enlistment or Reenlistment dated 9 May 2013 and Annex R to DD Form 4836, dated 5 September 2013. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Medical 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 (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 that his ETP Selective Reserve Incentive Program (SRIP) policy number 13-01 was denied. During the time he failed Army Physical Fitness Training (APFT), he was undergoing treatment at his local Veteran Affairs (VA) for his back and knee issues. 3. The applicant provides a self-authored letter that states he would like an ETP for the dates 2 November 2013 and 9 September 2014. During this time, he was trying to get help from the VA hospital regarding back and knee issues that he was having. His commander at the time was aware of his medical issues. Eventually, he was diagnosed with a degenerative disc disease at the L4-5 and at the L5-S1 levels in his spine. He also has meniscus tears in both knees, which cause them to swell, with excruciating pain. He also provides medical records dated: * 31 January 2013, that show the applicant抯 post deployment assessment * 13 March 2013, that show the applicant was seen for bilateral knee pain and lower back pain and prescribed diclofenac for knee pain; physician ordered x-rays * 22 June 2015, shows the applicant was seen for Bilateral knee; diagnosis trace bilateral patellar * 18 July 2015, show that the applicant was seen for magnetic resonance imaging (MRI) for lumbar, spin; diagnosis of degenerative stenosis involving L4-5 and the L5-s1 * 26 October to 23 November 2015, the applicant has rehabilitation appointments * 20 September 2016; show that the applicant was seen for an MRI for lower extremity 4. A review of the applicant抯 service record shows the following: a. He enlisted in the Army National Guard (ARNG) on 13 August 2007. b. He completed DA Form 4836 on 9 May 2013, that shows his new expiration- term of service as 12 August 2019. c. Annex R to DD Form 4836, dated 5 September 2013, shows that the applicant reenlisted for a 6 year Reenlistment Bonus (REB) in the amount of $10,000. He acknowledge in Section IV (Suspension) 1b, that his REB would be suspended if he receives a suspense of favorable actions (excludes APFT and failure to meet body fat). Section VI (Termination) shows that the applicant acknowledged that his REB would be terminated if he becomes an unsatisfactory participant per AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Provisions) and has two consecutive record APFT failures and/or two consecutive failures to meet body fat standards within this contract term. d. DA Form 705 (APFT Scorecard) shows APFT failure for record on 2 November 2013. e. DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 2 November 2011, shows the applicant failed his APFT. f. DA Form 705, shows: * 7 December 2013, Diagnostic APFT failure * 4 May 2014, Diagnostic APFT failure * 9 November 2014, Record APFT failure * 2 May 2015, Diagnostic APFT failure * 20 March 2016, Record APFT passed * 10 September 2016, APFT Record Passed g. DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 20 March 2016, shows the applicant passed his APFT. h. Exception to Policy Letter, dated 20 April 2017, denies the applicant抯 request to retain the $10,000 REB for the discrepancy of failed two consecutive for record APFT which violates AR 601-210 (Regular Army and Reserve Components Enlistment Program), paragraph 10-6b (Suspension of Incentives), which violates ARNG SRIP 13-01. i. DA Form 705, shows the applicant passed his record APFT on 20 October 2018. j. DA Form 4836, dated 7 April 2019, changes the applicants expiration-term of service to 12 August 2021. 5. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Provisions) 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. 6. NGR (National Guard Regulation) 600-7 (Selected Reserve Incentive Programs (SRIP)) paragraph 1-24(Termination of Incentives) states that a. Incentive eligibility and entitlement will stop when any of the termination reasons listed in paragraphs 1-25 and 1-26 or the applicable program chapters and sections apply. The Soldier will not be eligible to receive any further incentive payments, except for Service performed before the termination date. Termination of an incentive will not affect a Soldier抯 responsibility to serve their current statutory or contractual Service commitment. b. The unit commander or authorized unit representative will initiate termination procedures and inform the State incentive manager (IM) when a Soldier is not in compliance with the incentive terms and conditions. 7. NGR (National Guard Regulation) 600-7 (Selected Reserve Incentive Programs) paragraph 1-25 (Termination of Incentives) states that termination with recoupment is defined as termination of the incentive with Soldier is entitled to a prorated incentive amount based on the number of months served satisfactorily prior to the incentive termination date. The Soldier may be required to pay funds back to the government or the Soldier may be entitled to a payment. If a Soldier fails to maintain medical and dental readiness during the entire period of the service obligation, unless the failure was due to reasons outside of the Soldier抯 control (e.g., death, injury, or illness). The Commander will notify the State IM when a Soldier is not in compliance with command-directed orders to rectify their medical status (e.g.: dental cleaning, dental work, periodic health assessment, etc.). The termination effective date is the date the Commander requests termination. 8. AR 601-210 (Regular Army and Reserve Components Enlistment Program) paragraph 10-6b (Suspension of Incentives) states a Soldier who has a suspension of favorable personnel action, initiated per AR 600𤾄, will not be processed for an initial or anniversary payment. Bonus payment(s) will be processed effective on the date the suspension is lifted for those Soldiers who have continued eligibility. This excludes suspension of favorable personnel actions for the Army physical fitness test failure or failure to meet body fat standards. Repeat Army physical fitness test failure or failure to meet body fat standard within a 1-year period will result in the suspension of an incentive. Two consecutive Army physical fitness test or body fat standard failures will result in the termination of an incentive. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the terms of the reenlistment bonus signed by the applicant and the applicant failing to meet the terms of the agreement (specially, failing to pass two consecutive record APFT tests), the Board agreed with the NGB advisory and recommended denying the applicant抯 requested relief. 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, 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 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 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Provisions) 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. 3. NGR (National Guard Regulation) 600-7 (Selected Reserve Incentive Programs (SRIP)) paragraph 1-24(Termination of Incentives) states that a. Incentive eligibility and entitlement will stop when any of the termination reasons listed in paragraphs 1-25 and 1-26 or the applicable program chapters and sections apply. The Soldier will not be eligible to receive any further incentive payments, except for Service performed before the termination date. Termination of an incentive will not affect a Soldier抯 responsibility to serve their current statutory or contractual Service commitment. b. The unit commander or authorized unit representative will initiate termination procedures and inform the State incentive manager (IM) when a Soldier is not in compliance with the incentive terms and conditions. 4. NGR (National Guard Regulation) 600-7 (Selected Reserve Incentive Programs) paragraph 1-25 (Termination of Incentives) states that termination with recoupment is defined as termination of the incentive with Soldier is entitled to a prorated incentive amount based on the number of months served satisfactorily prior to the incentive termination date. The Soldier may be required to pay funds back to the government or the Soldier may be entitled to a payment. If a Soldier fails to maintain medical and dental readiness during the entire period of the service obligation, unless the failure was due to reasons outside of the Soldier抯 control (e.g., death, injury, or illness). The Commander will notify the State IM when a Soldier is not in compliance with command-directed orders to rectify their medical status (e.g.: dental cleaning, dental work, periodic health assessment, etc.). The termination effective date is the date the Commander requests termination. 5. AR 601-210 (Regular Army and Reserve Components Enlistment Program) paragraph 10-6b (Suspension of Incentives) states a Soldier who has a suspension of favorable personnel action, initiated per AR 600𤾄, will not be processed for an initial or anniversary payment. Bonus payment(s) will be processed effective on the date the suspension is lifted for those Soldiers who have continued eligibility. This excludes suspension of favorable personnel actions for the Army physical fitness test failure or failure to meet body fat standards. Repeat Army physical fitness test failure or failure to meet body fat standard within a 1-year period will result in the suspension of an incentive. Two consecutive Army physical fitness test or body fat standard failures will result in the termination of an incentive. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170015838 4 1