ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  10 August 2020 DOCKET NUMBER:  AR20180005527 


APPLICANT REQUESTS:  in effect 

.reinstatement of her reenlistment bonus

.payment for monies she paid toward bonus recoupment



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DA Form 705 (Army Physical Fitness Test (APFT) Scoreboard),


Dated 13 December 2014
.DA Form 705 (Army Physical Fitness Test Scoreboard), dated


19 September 2015
.Memo  Subject:  Validation and/or Correction of “For Record” APFT Data, dated


1 November 2017
.Email correspondence reference debt, dated 9 March 2018



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states:

a.She has been under recoupment for a reenlistment bonus for failure ofconsecutive APFTs in 2014.  She failed one record APFT on 27 September 2014.  She passed her record retest on 13 December 2014, within the 90 days provided by her commander to achieve a passing score.  The failing scores on her record of 17 October 2014 and 15 November 2014 were diagnostic tests, inadvertently loaded to her online file as failing records APFTs.    

b.Her commander counseled her on 27 September 2014, and he directed shewould be afforded 90 days to improve, and that she would have to submit a record 
APFT retest.  Her unit was conducting APFT make-up testing for Soldiers who were at schools or had missed the regular unit APFT.  She was informed that she would participate in these events, but that the tests would be diagnostic only, due to her previous counseling.  Her unit training noncommissioned officer (NCO) at that time was not aware of the nature of her counseling and submitted the data as if the results were for record.  She followed up with her Retention NCO in October 2017 when her drill pay indicated debt payments were coming out.   

3.A review of the applicant’s official record shows the following:

a.On 29 January 2007, the applicant enlisted in the Pennsylvania Army NationalGuard (PAARNG) for a period of 8 years in the rank of private (PVT)/E-1. 

b.In conjunction with her enlistment, she signed NGB Form 600-7-1-R-E (Annex Eto DD form 4 Non-Prior Service Enlistment Bonus Addendum) entitling the applicant to receive $20,000.00 after enlisting for the Military Occupational Specialty (MOS) 92G (Food Services Specialist) for 6 years.  Her bonus would be suspended if she was flagged for an adverse action (Does not include Army Physical Fitness Test APFT failure).  It does not mention APFT failures under Termination with Recoupment.   

c.On 15 July 2012, she reenlisted for 6 years (DA Form 4836 (Oath of Extension of
Enlistment or Reenlistment). 

d.In conjunction with her reenlistment, she signed NGB Form 600-7-3-R-E (AnnexR to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus (REB) Addendum Army National Guard (ARNG) of the United States (ARNG) which shows: 

(1)Section 2 (Eligibility), item 2, she cannot reenlist/extend for more than oneSRIP incentive during a contractual period. 



(2)Section 2, item 10, states she cannot have an active suspension offavorable personnel action flag. 



(3)Section 3 (Bonus Amount and Payments) item 1a, she would reenlist for a6 year period to receive a total bonus payment in the amount of $10,000 and will be paid in one lump sum. 



(4)Section 4 (Suspension) item 1 states she understands incentive eligibilitywill be suspended if she receives a flag with suspension of favorable personnel actions (excludes Army Physical Fitness Test (APFT).  



(5)Section 6 (Termination), item 1h, the bonus would be terminated withrecoupment if she had two consecutive record APFT failures.  The effective date of termination would be the date of the second consecutive for record APFT failure. 



d.A DA Form 2166-9-1 (NCO Evaluation Report) (SGT) shows under part 4(Performance Evaluation, Professionalism, attributes, and competencies), the applicant failed her APFT on 19 September 2015. 

e.DD Form 214 dated 29 April 2017 reflective of her service on active duty from
11 May 2016 through 29 April 2017.  Item# 23 (Type of Separation) states “Release from Active Duty” and Item# 28 (Narrative Reason for Separation) states “Completion of Required Active Service.” 

4.The applicant’s record are void of:

a.Memorandum terminating the reenlistment bonus.



b.DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)), flaggingher for APFT failures and removing a flag for passing the APFT. 



c.An exception to policy denial from National Guard Bureau (NGB) regardingrecoupment of her reenlistment bonus. 



5.The applicant provides:

a.DA Forms 705 (Army Physical Fitness Test Scorecard) showing the following;

(1)27 September 2014 – record APFT failure (2 mile run)



(2)17 October 2014 – diagnostic APFT failure (did not finish the 2mile run)



(3)15 November 2015 – diagnostic APFT failure (2 mile run and sit ups)



(4)13 December 2014 – record APFT pass



(5)19 September 2015 - record APFT failure (2 mile run and sit ups)



(6)6 September 2016 – record APFT pass



(7)13 December 2014 and 6 September 2016 - record APFT pass



b.Memorandum, subject:  Validation and/or Correction of “For Record” APFT Datawherein the applicant’s immediate commander provided the memorandum to correct 
APFT data showing erroneous record APFT data was entered.  The APFTs administered on 17 October 2014 and 15 November 2014 were diagnostic APFTs.  They were uploaded erroneously by the interim training NCO, without the knowledge of the Soldier or her supervisor at the time.  She did pass her record APFT in the 90 days provided, as annotated on the attached DA Form 705.  A record of the counseling is not available, due to it being closed out and removed from her local training files. 

c.Email correspondence discussing the applicant’s bonus debt and APFT failures inthe system.  It discusses applying to the NGB for an exception to policy and how the NGB returned the applicant’s exception to policy without any action due to her termination process already being complete and recoupment established.  It states she must go through the ABCMR process.  Once the ABCMR makes a final determination, their office will receive the decision and contact the applicant.   

5.See references below.

BOARD DISCUSSION: 

The Board accepted the memorandum from the applicant's company commander as sufficient evidence showing that termination and recoupment of the applicant's $10,000 reenlistment bonus resulted from an error in recording diagnostic APFTs as record APFTs.  The Board determined the record should be corrected to show the applicant's reenlistment bonus was not terminated and she should be paid any monies recouped as a result of the erroneous termination of the incentive.   


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:XXX :XXX :XXX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 



BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 her $10,000 reenlistment bonus was not terminated and returning to her any monies she has paid toward recoupment of the bonus. 

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, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Department of Defense Instruction 1205.21 (Reserve Component IncentivePrograms Procedures) states if entitlement to an incentive is terminated for any reasonbefore the fulfillment of the service described in the member's written agreement, thatmember shall not be eligible to receive any further incentive payments, except forpayments for service performed before the termination date.

3.ARNG Selective Reserve Incentives Program (SRIP) Policy Number 12-01, in effectat the time, states eligibility criteria, procedures and standards for administering theARNG SRIP for FY12 which includes the Reenlistment/Extension Bonus (REB).  TheSoldier shall serve satisfactorily in the contracted Military Occupational Specialty for thefull term of the service agreement.  All suspension, reinstatement, termination, andrecoupment of incentives are governed by Army Regulation 601-210, Active andReserve Components Enlistment Program, 8 Feb 11 (Rapid Action Revision 4 Aug 11).This policy supplements the regulation with specific criteria for each incentive.
4.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states under SRIP: 
 
     a.  Repeat APFT failure or failure to meet body fat standards within a one-year period will result in the suspension of an incentive.  Two consecutive APFT or body fat standards failures will result in the termination of an incentive.   
 
     b.  Under termination of incentives, incentive eligibility will be stopped when any of the termination reasons as listed apply and that member shall not be eligible to receive any further incentive payments, except for Service performed before the termination date.  Once declared ineligible, termination of an incentive will not affect a Soldier’s responsibility to serve their current statutory or contractual Service commitment.  Recoupment of Incentives.  When relief is not granted through the waiver process from incentives received, the member must refund a pro-rata amount to the Government when termination is due. 
 
5.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or 
cancel a Soldier’s debt to the U.S. Army if such action is in the best interests of the United States.  Indebtedness to the U.S. Army that may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. 
 
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