ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180013796 APPLICANT REQUESTS: * recoupment of bonus debt reduced/canceled * repayment of debt paid to date 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 * self-authored memorandum to Finance Personnel of unit * self-authored letter requesting and exception to policy (ETP) * debt account statement * legal opinion regarding line of duty (LOD) investigation * letter regarding debt turned over to collection * approved LOD * referral of debt to U.S. Department of Treasury * letter from Pioneer regarding collection of debt * self-authored letter to Pioneer * letter from Defense Finance and Accounting Service (DFAS) * final notice of indebtedness from DFAS * account statement * retirement orders * NGB Form 22 (National Guard Report of Separation and Record of Service) FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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: * his bonus recoupment was established with DFAS due to him being assigned to the Inactive Guard (ING) in excess of 1 year as authorized by policy and bonus addendum * he sent a request to DFAS requesting relief from the debt in 2013 * DFAS did not respond for three years until May 2016 * DFAS turned the matter over to a debt collection agency * there is no evidence DFAS considered relief of debt * he was discharged in November 2014 with a permanent disability rated at 50 percent * the percentage has since been raised to 70 percent * the financial burden and stress is intense * the US Treasury Department seized his tax return and the initial debt has been accruing interest 3. The applicant’s service record shows he signed a bonus addendum for $20,000 on 19 June 2007. The applicant signed saying he understood the bonus could be terminated with recoupment if he failed to extend within 30 days of return to active status from time served in the ING or if he exceeded the maximum time in the ING. 4. The applicant provides a DD Form 214 showing he was on active duty from 21 February 2008 through 30 April 2008. The applicant's service records contains Orders 054-834 transferring him into the ING effective 23 February 2009 for a period of 1 year. Orders 189-801 transfer the applicant from the ING effective 26 May 2010 for medical processing. 5. The applicant provides a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) dated 10 November 2010 which shows he was injured when he was called to active duty for more than 30 days. The injury occurred on 21 March 2008 when he fell while conducting mobilization training. The findings were the injury was in the line of duty. The applicant also provides a legal review of the LOD dated 16 September 2011 finding the LOD legally sufficient. 6. The applicant's records contain a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) dated 7 October 2014 which states the Board found the applicant to be physically unfit and recommended a rating of 50 percent. They also recommended his disposition to be placed on the retirement list and permanently disabled. 7. The applicant provides a final notice of indebtedness to the United States Government dated 2 November 2015. The account statement accompanying the letter states the applicant has a debt due to recoupment of the unearned portion of his National Guard Bonus. The applicant owed $14,669.13 which included $4.73 interest. 8. The applicant provides a self-authored letter he sent to DFAS on 12 March 2016, which states, in part: * he was injured in the LOD with the military * he was placed into the ING upon return to his home state * the Veteran's Affairs doctor kept him from attending drill due to his injury * his unit was given documentation to show he was not allowed to attend drill * he did not request to be placed in the ING and did not sign papers about being placed into the ING * he did not know he was in the ING until he was being considered by a PEB * he was told the PEB could not proceed until he was in an active drill status * he contacted his unit and told them the issue and they requested a written statement requesting to be taken out of the ING * he requested it immediately and started going back to drill * his PEB was finished in November 2014 * he attended drill for a year and 3 months longer than his contract was for * he was in the ING for a year and a few months without his knowledge * he made the time up that he was in the ING at the end of his contract plus he was injured while on active duty training for the military and received a PEB for those injuries * he feels he is being treated unfairly because he is injured for the rest of his life and lives with pain every day * his family suffers from the lack of him being able to do the things with them he used to be able to do * having to pay back a bonus check for something that was out of his control is unfair and is a financial hardship in his family * he would appreciate help to get the matter taken care of * he's tried to contact DFAS several times and would like DFAS to take the debt back from the IRS 9. The applicant provides the response from DFAS dated 5 May 2016, which states, in part: * they determined the applicant's debt in the principal amount of $14,444.44 is valid * they added interest and administrative fees totaling $97.75 * the treasury offset program collected $5,688 * the applicant's balance due was $8,854.19 * the debt is due to the recoupment of his unearned portion of the National Guard Bonus 10. The applicant provides: * a letter from the Department of the Treasury Bureau of the Fiscal Service, dated 22 February 2016 stating his debt had been referred to the US Department of Treasury for collection * a self-authored memorandum to Finance Personnel dated 26 September 2016 requesting relief for repayment action of his enlistment bonus * a letter from Pioneer dated 12 December 2016 stating the possible referral of his debt to the Treasury Department * a self-authored letter to Pioneer in response to their 12 December 2016 letter stating he sent a letter to DFAS requesting relief of the debt * a self-authored letter requesting an ETP, dated 27 February 2017 * Orders 351-847 showing he was assigned to the retired reserves effective 24 November 2014 * NGB Form 22 showing he was discharged from the National Guard effective 24 November 2014. 11. In the processing of this case, an advisory opinion was obtained on 14 May 2019, from the Office of the Deputy Chief of Staff, G-1. The advisory official recommended full relief for the applicant to include his reimbursement of any money already recouped. Given the totality of the applicant's case, and the fact he completed his service obligation, he could have been granted an exception to policy, allowing him to retain his bonus upon his honorable discharge into the Retired Reserve. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 12. The applicant was provided a copy of this advisory opinion on 27 June 2019, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered applicant’s request, supporting documents, evidence in the records and the HQDA advisory opinion. The Board considered applicant’s enlistment contract, his transfer to the ING due to injury and subsequent transfer from the ING, his continued service until transfer to the Retired Reserve (Permanent Disability Retired List) and the conclusions of the advising official recommending full relief. The Board determined an injustice had occurred and that because the applicant completed the required service obligation to remain eligible for the bonus, he should be entitled to the full amount and reimbursement of any amount already recouped. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X :X 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 records of the individual concerned be corrected to show: - The applicant completed the required service to retain the full amount of his enlistment bonus in accordance with the Addendum signed on 20070619; - The applicant was granted an exception to policy for the time he spent in the ING as a result of an injury received ILOD, and; - That he be paid the full amount of the bonus and reimbursed any money already recouped. 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.? REFERENCE: Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. ABCMR Record of Proceedings (cont) AR20180013796 4