ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2020 DOCKET NUMBER: AR20180003399 APPLICANT REQUESTS: in effect, .to receive his accession assignment incentive pay from his initial enlistmentcontract .to change his race and ethnicity from Black/African American to American Indianand White APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) x2 Office of theUnited States Attorneys, effective 1 January 1981 .Federal Register, dated 30 October 1997 .Resource System and Recruit Quota System (REQUEST) Reservation, dated11 August 2005 .Statement for Enlistment (United States Army Enlistment Program(DEP-Out),dated 23 August 2005 .Memo from OPM – Subject: Revisions to Ethnicity and Race, dated 30 August2005 .Orders 340-2850 (Permanent Change of Station (PCS) Orders, dated6 December 2005 .Reassignment Memo, dated 20 January 2006 .Orders 103-891 (PCS), dated 13 April 2006 .Military Pay E-Message 06-014 (Accession Assignment Incentive Pay (AAIP) #1,dated 2006 .Military Pay E-Message 06-044 AAIP #2, dated 2006 .House Resolution (HR) 194 – House of Representatives, US, dated 29 July 2008 .Facebook page from Black In Public, dated 16 October 2012 .Apostolic Letter, dated 11 July 2013 .Message of his Holiness, Pope Francis, dated 1 January 2015 .Case Management Division response, dated 15 June 2015 .American Declaration on the Rights of Indigenous Peoples, dated 15 June 2016 .SF 181 (Ethnicity and Race Identification), 24 April 2017 .Statutory Claim, dated 25 May 2017 .Certificate of Achievement- Indigenous Standing, dated 25 June 2017 .Social Security Administration letter, dated 10 July 2017 .US Census Bureau – description of race, dated 13 April 2018 census.gov definition .National Center for Education Statistics – definition for Race and EthnicityCategories, dated 13 April 2018 .Yale Law School – Lillian Goldman Law Library, 13 April 2018 .Drew Scott case, downloaded on 13 April 2018 .Internal Revenue Service assignment of Employer Identification Number, dated19 December 2019 .Decree Confirming Declaration as to Correct Name, dated 12 February 2020 FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states: a.he is still trying to receive payment of his accession incentive pay from his initial enlistment. He never received it per his contract. He was assigned to a high tempo unit which was later reflagged to 2nd Stryker Calvary Regiment. b.he would like his records corrected to reflect his actual race and ethnicity on file with the Social Security Office, DMV, Governors’ Office and IRS as American Indian and White instead of Black/African American. 3.A review of the applicant’s official records show: a.DD Form 2808 (Report of Medical Examination), dated 5 July 2005 reflects under item 10a. (Racial Category) – Black or African American and under item 10b. (Ethnic Category) – Not Hispanic/Latino. b.On 25 August 2005 the applicant signed a DD Form 4 (Enlistment/Reenlistment Document) enlisting him into the Regular Army for not less than 4 years and 17 weeks. c.The applicant authenticated and signed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States) that reflects under: (1)section I (Personal Data): item 7a. Racial Category - (3) Black/AfricanAmerican. (2)item 7b. Ethnic Category - (2) Not Hispanic or Latino. (3)Item 16f. MOS: 11X1. (4)item 32. Specific Option/Program Enlisted for, Military Skill, or Assignment toa Geographical Area Guarantees (There were two Specific Option/ProgramEnlisted for in accordance with (IAW) AR 601-210, Chapter 9, Table 9-1 –Program 9B (United States Army Station/Unit/Area/Command EnlistmentProgram) –Request Option 34 (U. S. Army Select Unit) and Program 9C(United States Army Incentive Enlistment Program) Request- Option 174 (U.S.Army Cash Bonus) - $20,000, Option 290 (4 year Enlistment, US ArmySeasonal Bonus (High Priority Seat) and Option 500 (MOS IIX1O00YY,Critical Shortage Accession Bonus) 4 years 17 weeks 125P. There was nooption 118 (Accession Assignment Incentive Pay) listed. d.Statement for Enlistment (DEP-Out) states in connection with his enlistment in theRegular Army he acknowledges he is enlisting for the following programs: (1)Program 9B (United States Army Station/Unit/Area/Command EnlistmentProgram) Request- Option 34 (U. S. Army Select Unit). (2)Program 9C (United States Army Incentive Enlistment Program) Request- .Option 174 (U. S. Army Cash Bonus) - $20,000 .Option 290 (4 year Enlistment, US Army Seasonal Bonus (High PrioritySeat) .Option 500 (MOS IIX1O00YY, Critical Shortage Accession Bonus). .There was no option 118 (Accession Assignment Incentive Pay) listed. (3)US Army Cash Bonus with the bonus amount is $20,000 authorized byHQ DA, DAPE, MPA, Enlisted Incentive Program effective 13 July 2005. e.iPERMS shared page reflects under Personal Data, the applicant lists his State of Birth as Race as Black and his ethnic Group as none. This information is reflected when he enlisted in the United States Army and can be viewed under his iPERMS record as a PVT. f.iPERMS shared page reflects under Personal Data, the applicant left State of Birth blank, his race is listed as American Indian or Alaska Native, and his ethnic group as other. This can be viewed under his iPERMS record as a SSG. 4.The applicant provides: a.DD Form 149 (Application for Correction of Military Record) requesting payment of his Accession Incentive Pay he states he never received. b.DD Form 149 (Application for Correction of Military Records) requesting correction of his Ethnicity and Race. c.Office of the United States Attorneys, reflects racial and ethnic codes, effective 1 January 1981. d.Federal Register Volume 62, No 210 Notice that discusses the revisions to the standards for classification of federal data on race and ethnicity. By this Notice, Office of Management and Budget (OMB) is announcing it’s decision concerning the revision of Statistical Policy Directive No. 15, Race and Ethnic Standards for Federal Statistics and Administrative Reporting. (1)OMB is accepting the recommendations of the Interagency Committee for the Review of the Racial and Ethnic Standards. (2)The racial and ethnic categories set forth in the standards should not be interpreted as being primarily biological or genetic in reference. Race and ethnicity may be thought of in terms of social and cultural characteristics as well as ancestry. (3)Respect for individual dignity should guide the processes and methods for collecting data on race and ethnicity; ideally, respondent self-identification should be facilitated to the greatest extent possible, recognizing that in some data collection systems observer identification is more practical. (4)OMB’s recommendation for collecting data on race and ethnicity states self-identification is the preferred means of obtaining information about an individual’s race and ethnicity, except in instances where observer identification is more practical. (5)Participation in Federal programs means: .one cannot establish criteria or qualifications to be used in determining a particular individual’s racial or ethnic classification .do not tell an individual who he or she is, or specify how an individual should classify him or herself: e.The applicant’s REQUEST Reservation Report reflects his reservation date was 11 August 2005. The Options he selected were: .Option 125P (US Army Station/Unit/Area Command Enlistment Program) .Option 34 (United States Army Select Unit) .Option 174 (US Army Cash Bonus for 4 year enlistment .Option 290 (US Army Seasonal Bonus (High Priority Seat) .11B (Infantryman) military occupational specialty .Option 500 Critical Shortage Accession Bonus with a total bonus .amount of $20,000. f.The applicant’s Statement for Enlistment, United States Army Enlistment Program Delayed Entry Program (DEP) Out Form reflects (1)Program 9B - 125P (US Army Station/Unit/Area Command Enlistment Program) .Option 34 (United States Army Select Unit) .Option 118 (Army Assignment Incentive Pay) (2)Program 9C – (United States Army Incentive Enlistment Program) with three options. .Option 174 - (US Army Cash Bonus for 4 Year Enlistment) .Option 290 (US Army Seasonal Bonus (High Priority Seat) 11B .Option 500 (Critical Shortage Accession Bonus) (3)His bonus amount is $20,000 authorized by HQ DA, DAPE-MPA, Enlisted Incentive Program Effective 13 July 2005 and will be paid in accordance with DA instruction. g.Memorandum for Chief Human Capital Officers from Office of Personnel Management, Subject: Revisions to Ethnicity and Race Reporting to the Central Personnel Data File, dated 30 August 2005, explaining how the new Standard Form (SF) 181 (Ethnicity and Race Identification) dated July 2005 will be used for reporting ethnicity and race information. It indicates that the new form will be a two question format versus the original one question. The first question asks whether or not the employee is of Latino/Hispanic ethnicity; and regardless of the response to the first question, the second question asks the employee to mark an “X” next to any of the five given race categories that apply. The five categories are (1) Native Hawaiian and Other Pacific Islanders, (2) American Indian or Alaska Native, (3) Asian, (4) Black or African American, and (5) White. h.6 December 2005, Permanent Change of Station (PCS) orders 340-2850, issued by the Headquarters United States Army Infantry Center from Fort Benning, GA assigned the applicant, after completing basic and individual training to Ft Lewis, WA, with a report date of 10 January 2006. The 1st and 25th Infantry Replacement Detachment is a holding unit prior to assignment of new soldiers to their perspective companies. i.20 January 2006, Reassignment Memo from HQs, 1st Brigade, 25th Infantry Division, Ft Lewis, Washington, reassigned the applicant to HHC 3rd Battalion, 21st Infantry Division, Fort Lewis Washington. j.3 April 2006, Orders 103-891 (PCS), assigned the applicant to Co A, 2nd Squadron, 2nd Cavalry Regiment, Ft Lewis, WA to Vilseck, Germany with a report date of 30 September 2006. k.Military Pay E-Message 06-0614 (Accessions Assignment Incentive Pay) whichstates the FY06 National Defense Authorization act has provided fundung for a new enlistment entitlement known as Accession Assignment Incentive Pay effective with new enlistement contracts signed on or after 13 July 2015, It is offered to certain applicants who enlist in a specified military occupational skill with assignment to a designated priority unit. They must enlist for a minimum of 36 months service obligation. AAIP is a monthly entitlement of $400.00. AAIP can be combined with other enlistment bonus incentives except for airborne bonus. AAIP is payable for up to 36months as long as the member remains assigned to the designated priority unit and has the authorized MOS. The message expires 31 December 2006. The applicant provides documents he was under the 25th Infantry Division and has the MOS 11X. l.Military Pay E-Message 06-044 (Accession Assignment IncentivePay) states the Accession Assignment Incentive Pay is available to new enlistment contracts signed after 13 July 2005 in the amount of $400.00 for specified military occupational skills in designated priority units. This message announces revised procedures effective immediately. It has been determined by Human Resource Command and DFAS- Indianapolis that the best method to use to authorize this entitlement will be by listing generated by HRC and sent directly to Central Site. m.HR 194 (House of Representiave Document) dated 29 July 2008 speaks abouthow African Americans continue to suffer from the complex interplay between slavery and Jim Crow long after both systems were formally abolished. The House of Representatives acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal. The HR is committed to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow. n.Facebook page from Black In Public, dated 16 October 2012 whenTom Joyner interviews President Obama and the President says he doesn’t view himself as the first “Black” president of the United States. o.Apostolic Letter dated 11 July 2013 discusses the jurisdiction of judicialauthorities of Vatican city state in criminal matters. p.Message from Pope Francis dated 1 January 2015 discusses in the light of God’sword, we can consider all men and women “no longer slaves, but brothers and sisters.” q.Letter to the applicant from the Case Management Division at the Army ReviewBoards Agency, dated 15 June 2015, indicating the original request he submitted was not signed and therefore not able to processed. r.American Declaration on the Rights of Indigenous Peoples, adopted on 15 June 2016, recognizing the important participation of indigenous peoples of the Americas in the process of preparing the Declaration of Rights of Indigenous People. s.SF 181 (Ethnicity and Race Identification), 24 April 2017 reflecting the applicant changed his racial category to American Indian or Alaska Native and White. t.Letter to the Governor Reference Statutory Declaration and Statutory claim May2017 Statutory Claim in accord with IRS Manual changing his name from Elroy Emelio Brooks to Tawah Lightfoot El, dated 25 May 2017. u.Certificate of Achievement stating how the applicant is known as Tawah LightfootEl, dated 25 June 2017. v.Social Security Administration (SSA) mailed a new social security card to the applicant on 27 July 2017. In a second letter to the applicant, SSA to update race, the applicant must submit a Form SS-5 fir a replacement SSN card and evidence of identity to prove identity only; he did not need to provide documentation to prove the race he selected. w.US Census Bureau – which states how they must adhere to the 1997 Office Management and Budget (OMB) standards on race and ethnicity which guide the Census Bureau in classifying written response to race question. (1)The 1997 OMB standards permit the reporting of more than one race. Anindividual’s response to the race question is based upon self-identification. People who identity with more than one race may choose to provide multiple races in response to the race question. (2)White race is a person having origins in any of the original peoples ofEurope, the Middle East or North Africa. The definition of the American Indian or Alaska Native is a person having origins in any of the original peoples of North and South America (including Central America) and who maintains tribal affiliation or community attachment. (3)It further states the racial categories is not an attempt to define the racebiologically, anthropologically or genetically. In addition, it is recognized that the categories of the race item include racial and national origin or sociocultural groups. People may choose to report more than one race to indicate their racial mixture, such as American Indian and White. x.National Center for Education Statistics – definition for Race and Ethnicity Categories, dated 13 April 2018 breaks down the different race/ethnic categories and what they mean. The categories were developed in 1997 by the Office of Management and Budget (OMB) to describe groups of individuals. y.Yale Law School – Lillian Goldman Law Library, dated 13 April 2018 provides General Orders # 100: the Lieber Code which provides instructions for the government of armies of the United States in the field. z.Drew Scott case, downloaded on 13 April 2018, says how Drew was a slave purchased from a family from St Louis and the struggles he encountered while trying to obtain his freedom. aa. Internal Revenue Service letter, dated 19 December 2019, assigned the applicant an employer identification number used to identify his estate or trust. bb. Decree confirming Declaration as to correct name of the applicant, dated 12 February 2020. 5.For accessions occurring on or after January 1, 2006, the new SF 181 will be the government-wide standard for reporting ethnicity and race information. 6.On 6 December 2018, the US Army Human Resources Command Deputy DivisionChief of Force Alignment Division, reviewed the applicant's records and rendered anadvisory opinion in his case. After a thorough review, it was the opinion of their officethat the applicant is not authorized assignment incentive pay (AIP). His records do notindicate request option 118 (Army Assignment Incentive Pay). Additionally thedate/stamp is not present on the copy he provided which lists option 118. Althoughincentives can be combined, at the time the applicant enlisted in the Army, themaximum amount authorized for all combined cash bonuses for a 4 year enlistment was$20K. In the applicant’s case, the $20K maximum was reached by combining the cash,seasonal, and critical shortage bonuses (options 174, 290, & 500) and is likely why theArmy assignment incentive pay option was not awarded. 8.The applicant was provided with a copy of this advisory opinion to give him anopportunity to respond and/or submit a rebuttal. 9.In an email to the analyst of this case, the applicant did not respond directly aboutthe advisory on his assignment incentive pay. He states he provided information tosupport the correction to ethnicity and race. He states one has the right to self identifyrace and may choose more than one. He provides information about his name that hewould like his record to reflect. These changes have been made on the civilian side aswell and he is trying to have his military records reflect his civilian records as well. TheDepartment of Motor Vehicles, Social Security office, voters registration, InternalRevenue System, Office for Management and Budget, his S1, S2, along with theSecretary of State and Governor of North Carolina have been given notice of hisstatutory declaration and statutory claim of race and nationality He is only exercisinghis God-given rights and rights under the Constitution. 10.See references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board considered the review and conclusions of the advising official regarding incentive pay. The Board further considered the civilian records provided by the applicant. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. The Board determined there is sufficient evidence to grant partial relief by amending the ethnicity on his military service record to reflect American Indian and White. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by amendingthe ethnicity on his military service record to reflect American Indian and White. 2.The Board further determined that the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to accession assignment incentive pay. X CHAIRPERSON 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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3 year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so. 2.Military Pay E-Message 06-0614 (Accessions Assignment Incentive Pay) whichstates the FY06 National Defense Authorization act has provided fundung for a newenlistment entitlement known as Accession Assignment Incentive Pay effective withnew enlistement contracts signed on or after 13 July 2015. It is offered to certainapplicants who enlist in a specified military occupational skill with assignment to adesignated priority unit. They must enlist for a minimum of 36 months serviceobligation. AAIP is a monthly entitlement of $400.00. AAIP can be combined with otherenlistment bonus incentives except for airborne bonus. AAIP is payable for up to 36months as long as the member remains assigned to the designated prority unit and hasthe authorized MOS. The message expires 31 December 2006. 3.Military Pay E-Message 06-044 (Accession Assignment Incentive Pay) states the Accession Assignment Incentive Pay is available to new enlistmentcontracts signed after 13 July 2005 in the amount of $400.00 for specified militaryoccupational skills in designated priority units. This message announces revisedprocedures effective immediately. It has been determined by Human ResourceCommand and DFAS- Indianapolis that the best method to use to authorize thisentitlement will be by listing generated by HRC and sent directly to Central Site. 4.AR 601-210 (Regular Army and Army Reserve Enlistment Program) a.Chapter 6 (Military Entrance Processing Station Processing Phase) paragraph 12 states the guidance counselor will review and ensure that DD Form 1966 is properly completed and compare all entries to verification documents and SF 86. The final completed DD Form 1966 should be free of errors and must be legible. The racial category consists of American Indian/Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, White or Declined to Respond. The Ethnic Category consists of Hispanic or Latino, Not Hispanic or Latino or Decline to Respond. b.Chapter 9 (Enlistment Programs/Options) provides the general description of all authorized enlistment programs and options. Section II (Regular Army Enlistment Programs and Options) c.Chapter 9-8 (Enlistment Program 9B, United States Army Station Unit- Command - Area Enlistment Program) states this program is available to qualified NPS, PS, Glossary NPS, and ACASP applicants enlisting for the minimum term of enlistment authorized by their REQUEST Option. d.Chapter 9-9 (Enlistment Program 9C, U.S. Army Incentive Enlistment Program (Enlistment Bonus, Army College Fund, Loan Repayment Program) is available to qualified NPS, PS, Glossary NPS, and ACASP applicants enlisting for the minimum term of enlistment, when authorized by HQDA Enlistment Incentives Message. Incentives will be offered using Resource System and Recruit Quota System (REQUEST), and messages will be updated quarterly. All enlistees must meet the prerequisites before and after enlistment per DA PAM 611-21 (Primary Incentive Enlistment Options) available for enlistment are available in REQUEST as offered and determined by HQDA, DCS, G-1. 5. AR 40-501 (Medical Services Standards of Medical Fitness) Chapter 8, paragraph 12 (Medical examination requirements and required forms) states a. Required forms. The required form for all Army military medical examinations (not used for the PHA) is DD Form 2808. Table 8–1 contains model entries and explanatory notes for every box on the DD Form 2808. All items are NOT required on all examinations. For administrative data. Date of examination (box 1), SSN (box 2), Name of examinee (box 3), Home address (current address, not “home of record” if different) (box 4), Home or contact telephone number (box 5), Grade/rank (box 6), Date of birth (box 7), Age (box 8), Sex (box 9), Race (box 10). 6. Office Personnel Management – The Guide to Data Standards Part A: Human Resources defines Ethnicity and Race Identification. The data standard is applicable to accessions occurring on or after January 1, 2006, and is required for accessions occurring on or after July 1, 2006. For accessions occurring prior to July 1, 2006, the Race or National Origin data standard may continue to be used. The data standard consists of one ethnicity category (Hispanic or Latino) and five race categories. All applicable categories may be selected, and at least one category must be selected. The code consists of six positions, Hispanic or Latino is the first position. The second position will be one of six categories – (1) American Indian or Alaska Native, (2) Asian, (3) Black or African American, (4) Hispanic or Latino (5) Native Hawaiian or Other Pacific Islander or (6) White.: a. Race or National Origin . Definition: An employee's race or national origin. . Responsible Organization: Office of Personnel Management, Planning & Policy Analysis. . Applicability: Mandatory (Enterprise Human Resources Integration HR Status and HR Dynamics data feeds). . Employees of mixed race or national origin should be identified with the race or national origin with which they most closely associate themselves. This data standard is only applicable to an employee whose accession occurs prior to July 1, 2006. b. Ethnicity and race information is requested under the authority of 42 U.S.C. Section 2000e-16 and in compliance with the Office of Management and Budget's 1997 Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity. Providing this information is voluntary and has no impact on your employment status, but in the instance of missing information, your employing agency will attempt to identify your race and ethnicity by visual observation. //NOTHING FOLLOWS//