ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 March 2020 DOCKET NUMBER: AR20190005247 APPLICANT REQUESTS: bonus reimbursement in the amount of $8137.99 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD form 149 (Application for Correction of Military Record) * Self Authored letter * Pregnancy Notification letter * Memorandum for Record – Election of Options Regarding Pregnancy * Pregnancy Counseling Checklist * Inactive National Guard (ING) Counseling Checklist * Hardship/Dependency packet * DA Form 4187 (Personnel Action * DA Form 4856 (Developmental Counseling) * Self Authored letter (Requesting a Hardship Discharge) * Memorandum for Record – Hardship Discharge * Personnel Qualification Report (Page 1) * Request to transfer to the Inactive Army National Guard * Department of the Treasury (Financial Management Service) letter * Memorandum for Record from Sergeant (SGT) P_ * Memorandum for Record – Annual Muster Order to Report * Email Communication(s) * Congressional Response letter * Memorandum for Record from Captain (CPT) F_ * Order(s) Establishing Paternity and Custody * Order# 003-999 * DA Form 4187 (Personnel Action) * Order# 363-1009 * Memorandum for Record - HQ Indiana National Guard Service Branch Manager * Order# 319-1003 * Order# 319-1007 * NGB Form 22A (Correction to NGB Form 22) * NGB Form 22 (Report of Separation and Record of Service) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 that she was released from the Indiana Army National Guard on 31 December 2010 for failure to muster. It was her understanding that she would be receiving a hardship discharge due to her being pregnant and not having a valid family care plan. After filing a congressional complaint, her discharge was changed. She was informed that under the provisions of a hardship discharge she would retain her bonus; however, if she failed to report for the muster alert, her bonus would be recouped. She noted upon receipt of her taxes that her bonus was being recouped in the amount of $8137.99. 3. A review of the applicant’s available service records reflects the following on: a. 17 March 2006, she enlisted in the Army National Guard (ARNG) for 8 years; entitlement to a $20,000 (50% upon completion of initial entry training and the remaining 50% upon the 3rd year anniversary of their enlistment) less taxes; applicant indicated her understanding that her bonus entitlement would be terminated if she separated from the ARNG for any reason unless due to death, injury, illness or other impairment not the result of her own misconduct. b. 24 October 2009, she requested transfer to the Inactive National Guard (ING). c. 25 October 2009, she was transferred to the Inactive National Guard due to her pregnancy. d. 27 October 2009, she was confirmed by her medical provider to be pregnant. e. 23 November 2009, her commander requested that she be discharged due to valid dependency issue. f. 27 September 2010, she was ordered to report for annual muster and failed to report. g. 29 December 2010, her separation action was initiated. h. 30 December 2010, she was transferred from the Inactive National Guard and returned to active service in her previous organization (in excess). i. 31 December 2010, she was separated from the ARNG for failure to report. 4. The applicant provides the following documents: a. Memorandum for Record – Election of Options Regarding Pregnancy dated 24 October 2009 – reflective of her election to transfer to the Inactive National Guard if eligible until her pregnancy was no longer a factor. b. Pregnancy Counseling Checklist – reflective of her leadership advising her of the options associated with her decision to separate from the ING; advised that she may be separated under other provisions if performance of her duty is substandard. c. ING Counseling Checklist dated 25 Oct 2009 – reflective of pregnancy being her reason for transfer. d. Personnel Qualification Report (Page 1) dated 25 October 2009 – reflective of her being single with no dependents. e. Request to transfer to the Inactive Army National Guard dated 25 October 2009 – reflective of her applying for transfer to the Inactive National Guard. f. Pregnancy Notification letter dated 27 October 2009 – reflective of her expected delivery date of 19 May 2010. g. Hardship/Dependency packet – reflective of several documents associated with her request for a dependency issue/hardship discharge to include: 1) Commander’s recommendation for the applicant’s discharge since she has a valid dependency issue/hardship. He states she was counseled on alternative options concerning current situation. 2) DA Form 4187 (Personnel Action) dated 29 December 2010 – reflective of the request to have her discharged for failure to report to ING muster. 3) DA Form 4856 (Developmental Counseling) – reflective of her denial of an enlistment bonus requiring collection. 4) Self Authored letter (Requesting a Hardship Discharge) – reflective of her justification to request a hardship discharge (pregnancy). 5) Letters of Recommendation for the applicant’s request for a Hardship Discharge from her Squad Leader and First Sergeant to grant her request for discharge. h. Memorandum for Record – Annual Muster Order to Report dated 14 September 2010 – reflective of her being ordered to report on 27 September 2010 and further advising her that her failure to report would result in her being submitted for discharge i. Order(s) Establishing Paternity and Custody – (dated 16 August 2010) reflective of the court establishing paternal responsibility to the father of her child and further placing custody of the child with him; (18 August 2010) the previous order was corrected in part that the order of custody of the minor child be changed to the applicant. j. DA Form 4187 (Personnel Action) – request for honorable discharge; declining receipt of enlistment, retention or affiliation bonus. k. Order# 363-1009 dated 29 December 2010 – reflective of her being transferred from the Inactive National Guard and placed back into a unit in an excess to authorized strength status effective 30 December 2010. l. NGB Form 22 (Report of Separation and Record of Service) dated 31 December 2010 – reflective of her separation, effective 31 December 2010, for Failure to Report for annual Inactive National Guard Muster; Under Honorable Conditions is the noted character of service m. Order# 003-999 dated 3 January 2011 – reflective of her receiving a General Under Honorable Conditions discharge from the ING, transfer into the Army Reserve Control Group (Annual Training) effective 31 December 2010, termination of Selective Reserve Incentive Program (SRIP) bonus entitlement and the requirement for recoupment. n. Memorandum for Record from Captain (CPT) F_ regarding the Congressional Inquiry dated 9 February 2012 – reflective of the Battalion Adjutant’s review of her hardship discharge request and how her discharge was not based on pregnancy, but rather it was because of her failure to muster. o. Memorandum for Record from Sergeant (SGT) P_ regarding Congressional Inquiry dated 14 March 2012 – reflective of her communication with the applicant regarding her discharge from the military; SGT P_ states that the applicant just wanted to be discharged since her current discharge packet could not be accepted due to her status in the ING; applicant ordered to muster; failed to report and therefore was instructed by the commander to initiate discharge for failure to report. p. Email Communication dated 23 March 2012 –reflective of the congressional liaisons executive assistant providing documents pertaining to the applicant’s discharge; on 14 September 2012 statement provided indicating that the applicant was discharged for failure to muster following her time in the ING however the Adjutant (J-1) was willing to change her discharge to “pregnancy” however this would not affect recoupment of her bonus. q. Department of the Treasury (Financial Management Service) letter dated 27 February 2013 – reflective of her having a reported debt in the amount of $8137.99 from the Defense Finance and Accounting Services (DFAS) center. r. Congressional Response letter dated 7 October 2015 – reflective of the Congressional Liaisons response to her Congressman informing him that reversal of her “AWOL” discharge was a matter for the ABCMR to address however regardless to the change of discharge, the recoupment of her bonus would not be impacted i.e. she would still be required to pay the bonus back. s. Order# 319-1003 dated 15 November 2018 – reflective of her discharge order being changed to Honorable (Hardship/Religious reasons). t. Order# 319-1007 dated 15 November 2018 – revoking her initial discharge order (Order# 003-999). u. NGB Form 22A (Correction to NGB Form 22) dated 15 November 2018 – reflective of her character of service being changed to honorable. v. Memorandum for Record HQ Indiana National Guard Service Branch Manager dated 16 November 2018 – reflective of the Indiana Army National Guard decision to update her previous discharge to reflect hardship discharge in lieu of the previous AWOL discharge; however, recoupment of her bonus received was out of their purview. Once she made the decision to transfer into the Inactive National Guard, the condition was that she would return to the Army National Guard, reenlist for the amount of time spent in the Inactive National Guard and she would be entitled to keep her bonus she initially received. Since she failed to complete the terms of that contract, by being discharged directly from the Inactive National Guard, she was automatically subject to recoupment. 5. 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, her record of service, the terms of the enlistment contract and bonus addendum she signed, her transfer to the ING prior to her completion of the obligated service, the circumstances of her separation from the ING and her honorable discharge from the ARNG. The Board did not find evidence that the applicant met the criteria for termination from bonus eligibility without recoupment or that she extended her obligated service for the period she served in the ING prior to her separation. Based on a preponderance of evidence, the Board determined that recoupment of a portion of the applicant’s bonus 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 :XXX 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. In accordance with Title 37, USC code 308c and section 552 of Title 5 a Soldiers SRIP bonus will be suspended if they enter into a period non availability (placement in the Inactive National Guard). Maximum period of non-availability is 1 year for personal reasons and 3 years for missionary obligations. Bonus eligibility will be terminated with recoupment if a Soldier fails to attend or complete Annual Training without commander approval, fail to extend, within 30 days of return to active status, for the period served in the Inactive National Guard or exceed the maximum time in the Inactive National Guard. Recoupment is required from the date of transfer into the Inactive National Guard when a Soldier is separated from the ARNG for any reason unless due to death, injury, illness or other impairment not the result of their own misconduct. 3. National Guard Regulation 600-7 (Selective Reserve Incentive Program) chapter 1-26 (Termination without Recoupment) states that the conditions under which termination without recoupment of incentives is warranted. The effective date of the termination will be the effective date of the action. Payments due prior to the effective date will be paid to the Soldier. Payments due after the effective date of the action will be canceled and will not be paid to the Soldier. Discharged for hardship reasons per applicable separation policy do not require recoupment. Termination effective date is date of discharge. 4. Army Regulation (AR) 135-7 (Incentive Programs) states that the continuity of Selected Reserve service will not be considered to be broken when, for a period not to exceed 6 months, a Soldier is not assigned to the Selected Reserve due to cogent personal reasons based on hardship or employment that have been verified and transfer to the IRR or Inactive National Guard has been approved. If the period in the IRR or lNG exceeds 6 months, the soldier will be terminated from increased entitlement. 5. AR 135-178 (Enlisted Administrative Separations) states that a hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate Family, separation from the Service would materially affect the care or support of the Family by materially alleviating undue hardship of parenthood. A married Soldier who becomes a parent by birth, adoption, or marriage (step parent) and whose child (or children) is (are) less than 18 years of age and reside(s) within the household, may apply for separation under hardship. The Soldier must submit evidence that the roles of parent and Soldier are incompatible and that they cannot fulfill their military obligation on active duty, Full-Time National Guard Duty (FTNGD) or Active Duty for Training (ADT), without neglecting the children. Soldiers who are sole parents and whose child (children) is (are) under 18 years of age and reside(s) within the household may apply for separation under hardship. A “sole parent” is a parent who is single by reason of never being married, or is divorced or legally separated and has been awarded child custody by judicial decree or court order, or is a widow or widower. It is not the intent of the Army to indiscriminately allow the separation of an enlisted Soldier who remained in the service during pregnancy and then requested release immediately after receiving the medical and monetary benefits related to prenatal and postnatal absence and delivery. 6. Selected Reserve Incentive Program Policy Guidance (Policy# 06-01 and 06-04) state that Non-Prior Service (NPS) Enlistment Bonus (NPSEB) is offered to enlistees who contract into the ARNG of the Selective Reserves for a minimum contractual obligation of 3 years. Applicants must enlist into a valid, vacant position, and in one of the 30 National Guard Bureau (NGB) approved state critical skill Military Occupational Specialty's (MOS). 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. a. Unless granted relief the member must refund a prorated amount to the Government, if such termination is for any of the following reasons: 1) 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) 2) separates from the ARNG for any reason (including enlistment or voluntary order to active duty in the active forces) 3) moves to a non-bonus skill or unit, unless the move is required by the ARNG 4) fails to extend the contracted term of service for a period of authorized non- availability b. Recoupment is not required in the following circumstances when an incentive is terminated: 1) in the event of death, injury, illness, or other impairment not the result of the member's own misconduct 2) if involuntarily separated from the ARNG as a result of unit inactivation, relocation, reorganization, a DOD-directed reduction in Selected Reserve force or an involuntary call-up or mobilization //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005247 7 1