ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180014899 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) * two memorandums from Defense Finance and Accounting Services (DFAS) * Bonus Termination and Suspension document * memorandum from National Guard Bureau (NGB) regarding Exception to Policy (ETP) * NGB Form 22 (Report of Separation and Record of Service) * discharge orders * self-authored letter to NGB 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: * he signed a 3 year reenlistment on 15 May 2008 * he should have been given a $7,500 bonus * through no fault of his own the Army gave him $15,000 which was in place for the 6 year reenlistment * he served 4 years and 1 month * his Expiration Term of Service (ETS) was 14 June 2012 * he was later forced to repay half of the bonus * he shouldn't have to pay back half * the debt amount was calculated incorrectly because he wasn't given credit for his full time served towards the erroneous bonus he was awarded * he was only given credit for 3 years time served * he served 4 years and 1 month after signing the extension * since he served more than half of the time, he should be paying back less than half of the erroneously overpaid bonus * the ETP memo states the recoupment is invalid due to the National Defense Act of 2017 * he is requesting his debt be canceled and all of the money he has paid be refunded to him * if not refunded in full, he asks to be refunded anything beyond the amount he would have received for serving 4 years and 1 month of the 6 years 3. The applicant’s service record shows he reenlisted in the ARNG on 7 June 2007 for a period of 3 years. His ETS prior to reenlistment was 14 May 2008 and after his reenlistment it was 14 May 2011. In the signature block of the DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) it states, "I will receive a Retention Bonus" and it contains the bonus control number. The applicant signed the reenlistment. 4. The applicant had subsequent reenlistments on 16 May 2010 for 1 year and on 13 May 2012 for 1 month making his ETS 14 May 2012 and 14 June 2012 respectively. The applicant was honorably discharged from the ARNG on 14 June 2012. The applicant provides his NGB Form 22 and discharge orders showing his discharge date as 14 June 2012. 5. The applicant's service records contain a NGB Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus Addendum). The applicant initialed the block which states he will receive a first 3-year reenlistment/extension bonus of $7,500 less taxes to be paid in a lump sum and processed for payment on the date his reenlistment or extension contract takes effect. 6. The applicant provides a Bonus Payment History document which shows he received $15,000 on his entitlement date of 6 May 2008. It also shows a recoupment amount of $7,500 and the number of months he participated in the SRIP as 36 months. The document is dated 2 July 2013. 7. The applicant provides two memos from DFAS regarding his debt. They state, in part, records show he was paid a bonus for specific term of enlistment in the ARNG. At the time of his discharge, he failed to complete the term of service for which the bonus was paid resulting in the recoupment of the unearned portion in the amount of $7,507.50. In a second memo, DFAS explains the $7.50 debt was for Servicemen's Group Life Insurance making the bonus debt $7,500. 8. The applicant provides a self-authored letter he sent to NGB on 16 March 2018 in response to the memo from DFAS. The letter states, in part: * he reenlisted for 3 years on 15 May 2008 making his ETS 14 May 2011 * he agreed to receive a $7,500 bonus * due to an administrative error he received $15,000 for the bonus which was the intended amount for a 6 year reenlistment * after completing the 3 years of service he extended for 1 year and an additional month due to a planned deployment which was cancelled * his ETS dated was 14 June 2012 which was 4 years and 1 month after receiving the $15,000/6 year bonus * DFAS initiated a debt recoupment for the unearned portion of the $15,000/6 year bonus * they stated he only served 3 years of the 6 year contract and requested half of the bonus back * he served 4 years and 1 month * he does not believe he should owe half of the $15,000 back because he served more than half of the enlistment period he was given a bonus for * he believes he only should owe equivalent to 23 months or $4,791.67 because he should have been credited for the additional 13 months he served after the first 3 year period * he went through the appeal process with DFAS * DFAS stated he was only credited for 36 months of service and needed to submit proper documentation showing his correct ETS for service time * he submitted his NGB Form 55, NGB Form 22, and discharge orders and he was told by DFAS he needed to contact his former unit and request a debt cancellation memo from an approving authority * the paperwork he submitted of his proper ETS was not enough to give him credit for time served * he requested to have his $7,500 debt reduced to the amount of $4,791.67 which is equivalent based on the amount of time he served towards the 6 years bonus * he is also requested reimbursement for any amount he paid over the corrected $4,791.67 * he disagreed with the total amount of debt, he faithfully paid back over $6,000 towards the original amount of $7,500 for over 5 years 9. The applicant provides the response from NGB, which states, in part: * an ETP to retain the $7,500 bonus was disapproved because he received payment above the amount authorized for the incentive which violates federal law * the applicant was contracted for a $7,500 reenlistment incentive * the applicant received $15,000 which was an overpayment of $7,500 to which he was not entitled * due to the National Defense Authorization Act (NDAA) 2017 statute of limitations, the State Incentive Manager will complete the contract within the Guard Incentive Management System and no recoupment will be required 10. The NDAA 2017, states if the indebtedness of a member of the uniformed services to the United States occurs, through no fault of the member, as a result of the overpayment of pay or allowances to the member or upon the settlement of the member’s accounts, the Secretary concerned may not recover the indebtedness from the member, including a former member, unless recovery of the indebtedness commences before the end of the 10-year period beginning on the date on which the indebtedness was incurred. The applicant received the bonus payment on 6 May 2008. 11. See REFERENCES below for further applicable regulations and policy to this case. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and the evidence in the records. The Board considered his contract, the amount of bonus it specified and the amount he received. The Board further considered the applicant’s further extensions of service and the NGB memorandum that instructs the State Incentive Manager to complete the contract and no recoupment will be required. The Board found that he completed the period of service for the bonus ($7.5K), but was overpaid by $7.5K that he was not entitled to. Based on the NGB memo and the preponderance of evidence the Board determined that he was not entitled to the additional funds, but that recoupment was not required and no error or injustice requiring correction. 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 :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, 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. 2. Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 1 January 2007 - 31 January 2007 (Policy Number 07-04), dated 1 January 2007 prescribes the guidance for M-Day ARNG Soldier to receive the SRIP. It states, a. Re-enlisment/Extension Bonus (REB): The ARNG offers a REB to Soldiers who meet the following eligibility requirements: * extend for three or six-years * be qualified in the Military Occupational Specialty for the position for which extending * extend in a valid, vacant position, or against a projected vacancy * have not more than 20-years time in service at current Expiration Term of Service (ETS) b. REB Options and Payment Schedule: * the ARNG offers a $ 15,000 REB to Soldiers who re-enlist or extend for six-years * Soldiers will receive their REB in a lump-sum payment, which is payable upon the effective date of the new contract (day after current contractual ETS) * the ARNG offers a $7,500 REB to Soldiers who re-enlist or extend for three-years * Soldiers will receive their REB in a lump-sum payment, which is payable upon the effective date of the new contract (day after current contractual ETS) c. Termination with Recoupment: If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Unless granted relief the member must refund a prorated amount to the Government, if such termination is for any of the following reasons: * fails to participate satisfactorily in required training during the entire period of service agreed to, in accordance with the written agreement, unless the failure to participate satisfactorily was due to reasons beyond the control of the member (i.e., death, injury, illness, or other impairment) * separates from the ARNG for any reason (including enlistment or voluntary order to active duty in the active forces) * moves to a non-bonus skill or unit, unless the move is required by the ARNG * fails to extend the contracted term of service for a period of authorized non-availability * accepts an Active Guard and Reserve (AGR) position or a Military Technician (Mil Tech) position where membership in the ARNG is a condition of employment, and member has not served at least six months of the incentive contract term * serves one year or less of an enlisted incentive contract term upon entry into the Simultaneous Membership Program (SMP), Reserve Officer Training Corps (ROTC) Advanced Course or ROTC Control Group 3. National Defense Authorization Act for Fiscal Year 2017 states at Subtitle F—Other Matters SEC. 671. RECOVERY OF AMOUNTS OWED TO THE UNITED STATES BY MEMBERS OF THE UNIFORMED SERVICES STATUTE OF LIMITATIONS.—Section 1007(c)(3) of title 37, United States Code, is amended by adding if the indebtedness of a member of the uniformed services to the United States occurs, through no fault of the member, as a result of the overpayment of pay or allowances to the member or upon the settlement of the member’s accounts, the Secretary concerned may not recover the indebtedness from the member, including a retired or former member, using deductions from the pay of the member, deductions from retired or separation pay, or any other collection method unless recovery of the indebtedness commences before the end of the 10-year period beginning on the date on which the indebtedness was incurred. ABCMR Record of Proceedings (cont) AR20180014899 5