ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20180006583 APPLICANT REQUESTS: Waiver and reimbursement of debt of $2,803.00 with any interest collected. 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), dated 18 October 2008 * DA Form 4651 (Request For Reserve Component Assignment or Attachment), dated 4 April 2011 * DA Form 4187 (Personnel Action), dated 7 June 2011 * Memo for 479th Engineer Company – Subject: Request Transfer to the IRR, dated 7 June 2011 * Memo for Commander 412th Theater Engineer, Subject: Transfer to the IRR, dated 7 June 2011 * DA Form 4856 (Developmental Counseling Form), dated 7 June 2011 * Memo –Subject: Administrative Separation, dated 7 June 2011 * Discharge Orders 14-150-00141, dated 30 May 2014 * Defense Finance and Accounting Service (DFAS) – Re: Indebtedness to the United States Government, dated 3 December 2014 * DFAS Account Statement, dated 3 December 2014 * Power of Attorney, dated 6 March 2015 * Attorney’s Letter to DFAS, dated 11 March 2015 * DFAS letter to Attorney, dated 13 May 2015 * Attorney letter to DFAS, dated 14 August 2015 * DFAS letter to applicant, dated 10 December 2015 * Email from Attorney to applicant, dated 22 April 2016 * HQs, 412th Theater Engineer Command Assistant Inspector General letter to applicant, dated 8 February 2017 * HQs, US Army Reserve Command G-1 letter to Congressional member, dated 10 July 2017 * Letter from Attorney to Army Review Boards Agency (ARBA), dated 8 February 2018 FACTS: 1. The applicant states: a. He requests reimbursement of a DFAS debt that was improperly accrued following the completion of his period of service and his transfer to the Individual Ready Reserve (IRR). He requests DFAS be required to refund $2,803.00 plus interest, the amount he paid to protect his credit. He states the unit failed to process his IRR packet in 2011 as required. The packet was processed in 2014 and orders were cut indicating “Soldier was held beyond normal discharge date through no fault of the Soldier.” DFAS erroneously denied his request for a waiver, stating they needed official documents to prove the error despite having reviewed his official US Army orders and IRR packet. The personnel in the unit, have changed since 2011, making it impossible to find anybody to assist. b. He was denied the relief requested by DFAS on 10 December 2015. He appealed to the Department of the Army and has attached correspondence sent to DFAS and the Army showing that he exhausted all administrative remedies. He also attached additional enclosures and official documents showing the error was not his fault. 2. A review of the applicant’s service records show the following on: a. On 8 June 2005, per his DD Form 4 (Enlistment/Reenlistment Documents) – he enlisted in the United States Army Reserve (USAR) for a period of 8 years as a Private (PVT)/E-1. b. On 8 June 2005, his Selected Reserve Incentive Policy (SRIP) addendum was completed showing the applicant was: (1) Section III (Acknowledgement) and Section IV (Obligation) The applicant enlisted in the USAR with concurrent assignment to a unit of the Selected Reserve for a minimum of 6 years. He agrees to serve his initial 6 years in a bonus unit, or in a bonus MOS. The incentive is based on the Unit vacancy authorized by HQDA for a bonus entitlement in the Military Occupational Specialty (MOS) 63B (Wheeled Vehicle Mechanic). (2) Section V (Entitlement) He was entitled to a $7,000.00 Non-Prior Service Enlistment Bonus (NPSEB), the initial 50% would be paid after receiving his high school diploma, completing initial active duty training and qualify in his MOS, remaining two subsequent payments of 25% would be paid on the 2nd and 4th year of the enlistment term of service. (3) Section VII (Termination) states his entitlement to the enlistment bonus will be terminated should the following occur before the fulfillment of his enlistment agreement: * Be separated from his status as an enlisted soldier assigned to a unit of the Selected Reserve, except when separated for an authorized period of nonavailability . This could result in recoupment actions unless the separation is due to becoming an assigned member of Control Group (ROTC) * Enroll in the SROTC with assignment to Control Groups (ROTC), or if he becomes a participant in the ROTC Simultaneous Membership Program. While enrollment in the SROTC, or participation in the SMP will terminate bonus entitlement, it will not result in recoupment action. * Complete at least 6 years in a Selected Reserve unit as he agreed to do under the terms of the contract c. On 8 June 2005, his DD Form 1966 shows under item 32. (Specific Option/Program Enlisted for, Military Skill or Assignment to a Geographical Area Guarantees) the applicant enlisted for Montgomery GI Bill Kicker in the amount of $350 a month, NPSEB of $7,000, and Student Loan Repayment Program in the amount of $20,000 for the MOS 63B. d. On 19 January 2006, the applicant enrolled in the Criminal Justice Program at Columbia College. e. On 4 March 2009, the applicant contracted as a Reserve Officer Training Corps (ROTC) cadet (non-scholarship) while attending Columbia College, with a scheduled commissioning date of 12 May 2011. f. On 7 January 2011, the applicant was dis-enrolled from ROTC due to failing out of Advanced Camp (Leader Development and Assessment Course). g. On 8 June 2013, a DA 5106 (Chronological Statement of Retirement Points) from 2005 to 2013 reflects the applicant received 15 retirement points a year. 3. The applicant provides: a. On 18 October 2008, a DD Form 214 (Certificate of Release or Discharge from Active Duty), showing he was on active duty in support of Operation Iraqi Freedom from 16 September 2007 to 27 September 2008 in the rank of Specialist (SPC)/ E-4. b. On 4 April 2011 a DA Form 4651 (Request For Reserve Component Assignment or Attachment), reflecting the unit submitting a request from the applicant to transfer from his troop program unit to the IRR on 6 June 2011. c. On 7 June 2011, a memo from the applicant, for the Commander, 479th Engineer Company – Subject: Request Transfer to the IRR, wherein the applicant request transfer to the IRR for the remaining statutory obligation of his initial contract. He wished to pursue civilian employment and civilian education full time and continued service in the Selected Reserve as a TPU Soldier would adversely affect his ability to pursue those goals. d. On 7 June 2011, DA Form 4187 (Personnel Action), in which the applicant requests transfer to the IRR. His military TPU contractual obligation date is 7 June 2011. He requests reassignment to the IRR until his ETS date of 7 June 2013. It was signed and recommended for approval on 7 June 2011. e. Memo for Commander 412th Theater Engineer, Subject: Transfer to the IRR, from the 479th Engineer Battalion Commander recommending approval of the applicant’s request to transfer to the IRR. f. DA Form 4856 (Developmental Counseling Form), indicating the applicant did not serve his 6 years prior to going into the IRR and was being counseled on the many benefits he would lose based on his decision to transfer from the Army Reserve Troop Program Unit (TPU) to IRR. The many benefits he had in the Army Reserve will terminate upon his separation unless he stays in a TPU. The applicant signed stating he agreed with is decision after being counseled. g. Memorandum for Separation Authority, dated 7 June 2011, Subject: Administrative Separation Authority, signed by the applicant that he was aware he is being considered for administrative separation from the service. h. On 30 May 2014, the applicant received Orders #14-150-00141 in which he was given an honorable discharge from the US Army Reserve. He was discharged from the 444th Engineer Company (Mobility Augumentee). Additional instructions indicated the applicant was held beyond discharge date through no fault of his own. i. On 3 December 2014, the Defense Finance and Accounting Service (DFAS) sent the applicant a letter reference his indebtedness to the United States Government, in the amount of $1,503 for service members group life insurance premiums. Since he was not attending drills, these premiums were being made on his behalf at the rate he elected and based on his separation date of 30 May 2014. j. On 3 December 2014, the DFAS Account Statement, reflected a subsequent debt of $2,803.00 to recoup unearned portion of his Reserve bonus money. The unit reported he satisfactorily performed 43 months of his contract. If he believed this is an error, he was told to contact his former unit and DFAS must receive official documentation from his Bonus Incentive Manager supporting his claim. k. On 6 March 2015, a Power of Attorney was provided to an attorney authorizing all branches of the government to fully communicate with and release information pertaining to the applicant’s claim of the erroneous debt. l. On 11 March 2015, the attorney sent a letter to DFAS, to appeal the debt alleged by the applicant. He provided enclosures that the applicant completed the full term of 72 months. He also provided enclosures to show how the applicant was counselled and transferred to the IRR upon completion of his contractual obligation, dated 7 June 2011. As such there was no requirement or desire to maintain SGLI. His attorney requests DFAS review the documentation and provide a breakdown of the debt alleged to be owed and how this amount was calculated. m. On 13 May 2015, DFAS responded to the attorney detailing the rationale behind the outstanding debt (1) The applicant has an outstanding debt of $2,803.00 and it remains valid * The debt of $1,750.00 is due to recoupment of the unearned portion of his reenlistment bonus * The applicant failed to satisfactorily complete the term of enlistment for which he was contractually obligated (Attorney argued it was completed) * He enlisted in the USAR on 8 June 2005 for 72 months with a bonus of $7,000.00 * He was discharged on 30 May 2014, and did not serve 18 months of his bonus obligation, and he was paid $7000.00. (Attorney argued it was more than 72 months) * The applicant started school in the ROTC Program prior to completing his bonus obligation; therfore, recoupment is required. (2) The applicant owed $1,053.00 for SGLI covering the months of March 2011 through May 2014. * SGLI was paid on his behalf, but not collected from his pay account at the time of discharge * A member is automatically covered by SGLI, regardless of whether or not the member is performing duty * When a service member ceases to meet the conditions of eligibility for SGLI coverage, the unit must inform DFAS in a timely manner to allow for any final premium liability to be deducted from final pay to preclude overpayment n. On 14 August 2015, the attorney reached out to DFAS again appealing the debt, stating: (1) the applicant enlisted for 72 months on 8 June 2005 and there were approximately 106 months in the time period the applicant held the slot (at least 34 more months than the required . (2) According to his IRR transfer packet, he was no longer “a member” of the USAR as of 7 June 2011. It was never the applicant’s responsibility to ensure that the unit submitted their transfer papers to any other agency. If the papers were handled incorrectly after his transfer to the IRR, then the issue should be addressed with the unit or individuals who signed and processed the packet. (3) The letter asserts the applicant must pay back the bonus for the time he spent at ROTC. There was no time period specified and regulation cited that supports this assertion. The applicant was also never counseled or informed that entering the ROTC program would negatively impact his reenlistment and result in a debt collection against him. He was never removed from his slot throughout the ROTC period. He continued to attend battle assemblies as a drilling reservist in the same unit throughout. (4) The letter states eh applicant owes $1053.00 for SGLI coverage from March 2011 to May 2014 for which he was no longer a member of the Ready Reserve. The applicant ceased being a “member” when he transferred to the IRR on 7 June 2011 upon completion of his 72 month required term. He should no longer have been automatically covered under the SGLI. His former unit’s failure to properly process his transfer paperwork is the sole reason for the accrual of the debt. The applicant cannot be held accountable. (5) Although the applicant may not have been officially discharged until 30 May 2014, he gained no unjust enrichment from his previous unit’s error. He received no pay, no compensation, and did not receive credit toward retirement. He is being punished for his unit’s negligence. His discharge orders state “Soldier was held beyond normal discharge date through no fault of the Solder.” o. On 10 December 2015, DFAS sent a letter to the applicant letting him know, the debt remains valid. The office cannot re-audit or make any adjustments to his debt unless he provide official supporting documentation, provided by his prior command, which identifies specific errors or omission of facts in the original debt computation and explains why the audit should be modified. p. On 22 April 2016, the attorney reached out to the applicant stating there was no response from the unit and was requiring assistance in contacting them. q. On 8 February 2017, the applicant received a letter from the Assistant Inspector General stating the 412th Theater Engineer Command could not pursue the issue since no documentation was found on the debt owed. The Assistant Inspector General recommended the applicant contact DFAS and request a waiver. They closed out their investigation. r. On 10 July 2017, HQs, US Army Reserve Command responded to the United States Representative Office out of Syracuse, NY explaining the applicant’s bonus was terminated since he entered the ROTC program while still serving under his contract in a reserve unit. Notes on this letter indicate the recoupment due to ROTC was not in any contract he signed. If this was true every green to gold E-6 would be in debt, especially if reenlisted for bonuses. s. On 8 February 2018, the applicant’s attorney reached out to the Army Board for Correction of Military Records requesting a waiver and reimbursement of the full debt alleged to be owed by the applicant with any interest collected as described in his rebuttal to DFAS on their assertions/claims. 6. On 5 March 2020, Headquarters, USAR Command (USARC) reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Manning Division opined that: a. The applicant enlisted in the U.S. Army Reserve (USAR) on 8 June 2005, for a 6-year term, with a $7,000 Non Prior Service Enlistment Bonus (NPSEB), in the Military Occupational Specialty 63B. The NPSEB was terminated and recouped effective 4 March 2009, upon the applicant’s entry into the Reserve Officer Training Corps (ROTC) before completing the full 6-year term of the NPSEB. Army Regulation (AR) 135-7, Chapter 2-6g states the "enlistment bonus entitlement will stop if the soldier becomes a participant in the Senior Reserve Officers' Training Corps/Simultaneous Membership Program (ROTC/SMP) on enrollment in the ROTC advanced course, or becomes an assigned member of control group (ROTC)." AR 135-7, Chapter 2-8a (5) (c) goes on to state "recoupment bonus payments will be started by the unit commander when entitlement to such incentive is terminated based on becoming an assigned member of Control Group (ROTC)." The applicant successfully completed 45 months of his NPSEB. The Finance Bonus Team recouped the remaining 27 months of the NPSEB resulting in a $2,803.00 debt. b. The USARC G-1 recommends disapproval of the applicant’s request based on the fact the applicant failed to complete his full 6-year commitment before requesting a voluntary transfer to the Control Group (ROTC). 7. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 8. See references below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the terms of his contract incentive, his entry into and the reason for his departure from ROTC, the termination of his incentive eligibility, DFAS correspondence related to his debt and the results of an IG investigation. The Board considered the review and conclusion of the USARC advising official. Based on a preponderance of evidence, the Board determined that the termination of the applicant’s incentive and the resulting debt was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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 Instructions (DODI) 1205.21, paragraph 6.2 states, as a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specify the terms of the Reserve Service commitment that authorizes the payment of the incentive to the member. 2. AR 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 135-7 (Army National Guard and Army Reserve Incentive Programs) states SRIP incentives will be suspended from the incentive program during authorized periods of nonavailability due to transfer to the IRR or Standby Reserve per AR 135-91, chapter 5. Paragraph 2-6 (Termination) states Enlistment bonus entitlement will stop if the soldier: Becomes a participant in the Senior Reserve Officers' Training Corps/Simultaneous Membership Program (ROTC/SMP) on enrollment in the ROTC advanced course, or becomes an assigned member of control group (ROTC). Termination of the enlistment bonus entitlement will occur if the soldier does not complete the initial term of service in the enlistment contract. Recoupment conditions of bonus payments must be started by the unit commander when entitlement to such incentive is terminated based on becoming an assigned member of Control Group (ROTC). 4. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, And Enforcement Procedures) Chapter 3 paragraph 14. Participation requirements of the Senior ROTC Program states ROTC advanced course or scholarship programs (10 USC 2104 and 2107). Enlisted USAR unit soldiers enrolled in either of these programs are not authorized to participate in any form of Ready Reserve training. The professor of military science (PMS) must provide a copy of the enlistment agreement (DD Form 4 series) to the proper State Adjutant General or USAR commander. AR 145-1 requires the enlistment agreement. On receipt of the enlistment agreement, the soldier will be released from assignment and discharged from his or her Reserve of the Army status by the authorities cited in AR 135-178, chapter 1. The purpose of discharge is for reenlistment (with assignment to the USAR Control Group (ROTC) as a requirement for enrollment in the ROTC advanced course or scholarship program (AR 145-1)). As an exception to this policy, enlisted soldiers participating as officer trainees in the ROTC Simultaneous Membership Program (ROTC/SMP) per AR 601-210, chapter 10, are authorized to participate in a TPU. 5. AR 140-10 (Assignments, Attachments, Details, and Transfers) a. Chapter 2 paragraph 21. Enlisted personnel assignments states enlisted soldiers enrolled in the Advanced ROTC Scholarship Program are not authorized assignment or attachment to USAR units except under the provisions of the ROTC (SMP) prescribed by AR 601–210, chapter 10. b. Chapter 4 paragraph 9. Voluntary reassignment of troop program unit or individual mobilization augmentee enlisted Soldiers. The voluntary reassignment of a TPU or IMA soldier to an appropriate control group of the IRR is authorized on completion of a contractual agreement to serve in a TPU which the soldier incurred on initial enlistment in the USAR under a 3x3, 4x2, 5x1, 3x5, 4x4, 5x3, or 6x2 option or enrolls in an ROTC basic course (nonscholarship) and requests reassignment to the IRR per AR 135–91, paragraph 3–11b. 6. AR 600-4 (Remission or Cancellation of Indebtedness) a Soldier’s debt may be remitted or canceled arising from debts incurred while serving on active duty or in an active status and debts acknowledged as valid. 7. AR 608-2 (Servicemen’s Group Life Insurance (SGLI) - Veterans' Group Life Insurance (VGLI) states SGLI coverage is provided for all members of the Army National Guard (ARNG) and US Army Reserve (USAR) who are Cadet members of the Reserve Officer Training Corps (ROTC) (part -time coverage only) or members of the IRR. 8. Service members' and Veterans' Group Life Insurance Handbook states a. Service members’ Group Life Insurance (SGLI) is the life insurance currently available to all members of the uniformed services. SGLI is a group life insurance policy purchased by VA from a commercial life insurance company. b. SGLI is a benefit for a person on active duty, active duty for training, or inactive duty training in the uniformed services in a commissioned, warrant, or enlisted rank or grade. It also pertains to a person who volunteers for assignment to the Ready Reserve of a uniformed service and is assigned to a unit or position in which he or she may be required to perform active duty or active duty for training and each year will be scheduled to perform at least 12 periods of inactive duty training that is creditable for retirement purposes under title 10, United States Code, chapter 67. c. Members reporting for duty in one of the uniformed services who do not want to be insured or who prefer less than $400,000 maximum coverage must complete and file a form SGLV 8286, Service members’ Group Life Insurance Election and Certificate, with their uniformed service. d. Insured members who desire a lesser amount of insurance coverage or no Insurance must request a change by completing a new form SGLV 8286 and filing it with the uniformed service. A reduction or cancellation of insurance coverage is effective at midnight of the last day of the month in which the form is received by the uniformed service. ABCMR Record of Proceedings (cont.) AR20180006583 12 1