IN THE CASE OF: BOARD DATE: 27 August 2020 DOCKET NUMBER: AR20190013867 APPLICANT REQUESTS: Correction of his record to show: * he was not absent without leave (AWOL) * reimbursement of his Prior-Service Enlistment Bonus (PSEB) in the amount of $5,833.33 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Unsatisfactory participant checklist * DA Form 5138 (Separation Action Control Sheet) * Applicant's letter to his commander * Postal Service Form 3811 (Domestic Return Receipt), dated October 2012 * Memorandum, subject: Request for Unsatisfactory Participant Discharge for [Applicant], and allied documents, dated 22 August 2012 * Memorandum, subject: Letter of Instructions * Memorandum, subject: Notification of Proposed Reduction * Memorandum, subject: Receipt Letter * Memorandum, subject: Notification of Separation Proceedings Under Army Regulation (AR) 135-178 (Enlisted Administrative Separations), Chapter 13 * Memorandum, subject: Request for Conditional Waiver – Separation Under Army Regulation (AR) 135-178, Chapter 13 * Memorandum, subject: Order to Turn in Organizational Clothing and Individual Equipment (OCIE) * DA Form 137-1 (Unit Clearance Record) * Postal Service Form 3811 (Domestic Return Receipt) * National Guard Bureau (NGB) Form 600-7-6-R-E (Annex X to DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) PSEB Addendum Army National Guard (ARNG) of the United States) * Orders Number 008-011 * Defense Finance and Accounting Service (DFAS) debt letter, dated 1 February 2019 * Inspector General (IG) letter, dated 15 October 2019 * Self-authored letter, dated 25 February 2020 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: a. After approaching his immediate commander at the 1218th Transportation Company, West Palm Beach, FL, and requesting separation on or about March 2012, he would later learn there had been a problem and a discrepancy with the unit processing his separation in accordance with Army regulations. b. On or about March 2012, he met with his immediate commander and requested separation from the unit due to family and personal reasons and his interest in pursuing a commission in the U.S. Navy. His immediate commander asked him to provide him with his request in writing, which he quickly did (included). It was his understanding that his separation was complete after he verbally authorized his departure from the unit. c. Long after he left the unit and country, it appeared the 1218th Transportation Company attempted to send him correspondence in the mail (included) via registered mail during October 2012 (8 months after he left the unit), which he did not receive or sign for. At no point in time did anyone from the unit attempt to reach him via phone or any other method when they made the claim he was AWOL. In one of the letters sent to him, dated August 2012 (after he already left the country), subject; Request for Unsatisfactory Participation Discharge, he was asked to respond, which clearly he did not since he did not receive this letter until years after he left the unit. The information in section "Situation'' the commander provided in this letter was also not accurate. He claims he submitted a memorandum without justification, when in fact he authorized his letter and separation. The commander did tell him that he would need to remain "in good standing" and be placed in IRR, which did happen and would earn him an honorable discharge. The letter also mentions they attempted to retain him and bring him back to drilling status; this is also not true and there is no evidence of this and at no point in time was he ever contacted by anyone from the unit in this regard. d. Section 4 of the letter also mentions reasons for absences beyond his control, which was his situation and that was explained and approved by the commander. Also included in the correspondence sent to him was a separation action control sheet (included), which was not performed as mandated as you can see this form was not completed. An unsatisfactory participation discharge checklist was also included but was also not performed, specifically section 3, since the unit did not perform these tasks and if they did he would have addressed them and avoided any misunderstandings. e. It is his contention that the unit did not follow policy and procedure during his separation and those requirements listed in AR 135-178 or any of the other requirements noted in the above documents. If there was a problem in any way, he would have addressed the matter with his unit and certainly not be categorized as AWOL. f. He also learned that the Army has already garnished his 2018 tax refund in the amount of $5.833.33 for recoupment. By the Board updating his records to reflect the correct situation this will be resolved. 3. A review of the applicant's official records shows the following: a. On 17 December 2008, the applicant enlisted in the Florida Army National Guard (FLARNG) for a period of 6 years. In conjunction with this enlistment NGB Form 600-7- R-E was completed showing the following: (1) Section 3 (Bonus Amounts and Payments) – he would receive a 6 year PSEB in the amount of $15,000.00 less taxes in military occupational specialty (MOS) 88M (Motor Transport Operator). The bonus would be paid in two 50 percent installments. The first would be paid upon enlistment and the second would be paid on his third-year anniversary. (2) Section 6 (Termination with Recoupment) – the PSEB would be terminated with recoupment if he became an unsatisfactory participant by accumulating nine unexcused absences within a 12-month period or separating from the ARNG for any reason unless due to death, injury, illness, or other impairment not the result of his own misconduct. (3) He endorsed this document with his signature. b. On 14 September 2012, the applicant's immediate commander initiated the following memorandums indicating the applicant had nine unexcused absences and he was initiating action to separate him under the provisions of AR 135-178, chapter 13: (1) Memorandum, subject: Notification of Separation Proceedings Under AR 135-178, Chapter 13. His commander was recommending a general, under honorable conditions discharge. (2) Memorandum, subject: Notification of Separation Proceedings Under AR 135-178, Chapter 13. Acknowledgement receipt. (3) Memorandum, subject: Request for Conditional Waiver. (4) Memorandum, subject: Letter of Instructions – Unexcused Absence. (5) Memorandum, subject: Notification of Proposed Reduction. (6) Memorandum, subject: Notification of Proposed Reduction. Letter of receipt. (7) Memorandum, subject: Order to Turn in OCIE. (8) The applicant's endorsement is not on any of the above memorandums. c. In October 2012, Postal Service Form 3811 shows the packet was sent by certified mail to the applicant's address and it was delivered. The received by box is void of a signature. d. On 9 October 2012, a unit official cleared the applicant from the unit using DA Form 137-1. This form is void of the applicant's signature. e. On 31 October 2012, Orders Number 305-003, issued by the FLARNG, reduced the applicant to the rank/grade of private (PV2)/E-2. f. On 29 November 2012, the applicant's intermediate commander recommended approval of his general, under honorable conditions discharge for unsatisfactory participation. g. On 1 December 2012, the applicant's senior commander recommended approval of his general, under honorable conditions discharge for unsatisfactory participation. h. On 14 December 2012, the separation authority approved the applicant's discharge under the provisions of AR 135-178, chapter 13, and approved a general, under honorable conditions characterization of service. i. On 8 January 2013, Orders Number 008-011, discharged the applicant from the ARNG due to being AWOL and assigned him to the U.S. Army Reserve (USAR) Control Group (Annual Training). j. On 22 October 2015, by memorandum, the State Incentive Manager notified the applicant his PSEB had been terminated due to being an unsatisfactory participant, and the recoupment amount for his PSEB was $6,250.00. k. On 20 December 2016, Orders Number D-12-630253, issued by the U.S. Army Human Resources Command, Fort Knox, KY, honorably discharged the applicant from the USAR Control Group (Annual Training) 4. The applicant provides: a. DA Form 5138 showing actions to be completed with a notification of separation that is blank. b. Applicant's letter to his immediate commander with a handwritten entry of March 2012, that states: (1) It is with a heavy heart that he needs to inform him that his time at the 1218th Transportation Company has come to an end. Over the years he has honored the time he has had both in the U.S. Navy and the FLARNG, however his personal and professional life has now forced him to leave his military career. (2) Over the past two years his personal and professional life has drastically changed and required more of his time and attention, and the conflicts with the 1218th Transportation Company have caused serious personal, professional and financial hardships. It is clear now even after reasonable efforts to mitigate the conflict, that his dedication to this unit can no longer be achieved to the level which is necessary and expected of him. His commitment to his family, his corporation, his contractors, sponsors and participants have required a greater amount of his time which has increasingly effected his commitments at the 1218th Transportation Company. It is clear that without his full attention and time to his corporation, he would continue to lose a considerable amount of money and partnerships which will continue to adversely affect his business and its ability to pay for expenses and provide for his family. (3) Although he is well aware of the obligation which he took when he agreed to come to 1218th Transportation Company, he was now required to ask for his assistance with his immediate departure from the unit and the FLARNG. c. DFAS debt letter showing the applicant had a debt at the time the letter was drafted of $5,858.76 due to recoupment of an unearned portion of his PSEB. d. IG letter wherein the applicant was informed after a thorough inquiry into his request, it was determined his issue was not appropriate for IG involvement. He would need to petition the Board. e. Self-authored letter that states in pertinent part: (1) It is a material fact that the 1218th Transportation Company did not perform the required steps for processing as noted in AR 3941 (unknown regulation) and AR 135-178, paragraph 1-7 (which states in pertinent part processing time will not exceed 45 days and when the administrative board procedure is used will not exceed 90 days), which has caused his bonus recoupment. He draws the Board's attention to those items, which outline the negligence of due process. The unit did not complete these requirements in the time required. Furthermore, the only notice that he received was in August 2018, 6 years after he was given permission to leave the unit. The signed certified letter receipt has been submitted in this case. (2) Counseling and rehabilitation – (discharge processing may not be initiated under this chapter until the Soldier has been formally counseled under the procedures prescribed by paragraph 2-4). The unit did not provide any counseling after his personal meeting with the commander who gave him authorization to leave the unit. It notes herein the requirements for the unit to counsel a Soldier prior to separation. There are no documents which show any counseling was performed and he attests here no such counseling had ever been conducted in person, by telephone or via documents. There were no “reasonable efforts” made to contact him in any way after leaving the unit. There were no telephone calls, no one approached him even when he was returning his gear and there was no attempt to reach him via phone, mail or email for any such counselling. (3) DA Form 5138 (to ensure separation processing goals are met, commanders initiating separation actions under the notification procedure (chap 3, section 2) or the administrative board procedure (chap 3, sec 3) will initiate, maintain, and file DA Form 5138. This document was included with his case file and clearly shows that DA Form 5138 was not completed. There are several separation documents included in his case, which were never completed or ever presented to him for review or approval. (4) Mobilization Asset Transfer Program (MATP) (the purpose of the MATP is to ensure sufficient trained manpower is available in the IRR of the USAR to meet the Army’s personnel requirements under conditions of full mobilization). After being authorized by the commander to leave the unit, he was in fact placed into an IRR status to complete his remaining statutory contractual obligation. In fact, he renewed his IRR status on more than one occasion and at no time did anyone ever tell him that he was not fulfilling his contract or that he was reported AWOL. He was later told that his IRR status was complete. (5) Unsatisfactory Performance (a Soldier may be discharged when it is determined under the guidance set forth in chapter 2, section 1, the Soldier is unqualified for further military service by reason of unsatisfactory performance. * Soldier will not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier * the seriousness of the circumstances forming the basis for initiation of discharge proceedings is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale * there is likelihood that the Soldier will be a disruptive influence in present or future duty assignments * there is a likelihood that the circumstances forming the basis for initiation of separation proceedings will continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leader It is clear that he did not meet any of these criteria for unsatisfactory performance. If he did not meet these criteria the unit would have been required to contact him and attempt to retain him, none of which had been attempted in any way. (6) He is confident if he continued noting the deficiencies and the lack of separation procedure as required by AR 135-178 by the 1218th Transportation Company, he would only continue to prove his case that the unit did not separate him as prescribed. He would ask that the Board also review AR 135-178 in its entirety and show clear cause for AWOL status. (7) It is clear with the evidence presented that the unit did not follow proper procedure for separation as required and that no reasonable effort took place to afford him the opportunity to address and or remedy any possible conflict(s) for possible remedy. It is a fact that no one from the unit ever contacted him by any means to notify him of his "unauthorized absence" and he had no reason to contact the unit due to AWOL status after he left since he was given verbal permission by the commander to leave. After he did receive the first notification in 2018, he did attempt to reach the unit numerous times via phone and by mail to discuss this situation however no one ever responded to him. (8) The unit’s possible claim that they may have been unable to reach him is without merit. Even if the unit did attempt to send him notices via mail, which he did not receive, does not excuse them from not attempting to reach him when he did not show up for the next drilling date. The next drilling date would have been in the same month, which he was authorized to leave. Attempting to try to reach him via mail several months or years later is not a reasonable expectation. The unit had his telephone number and they had his physical address and his email address. Many of the Soldiers personally knew him and knew where he lived. If a Soldier does not show up for a drill, it is the squad leader and platoon sergeant's responsibility to immediately contact a missing Soldier by telephone; this was not done. It is not reasonable to expect a Soldier not be contacted in an event of non-drill compliance and furthermore it is not permitted. If he were told by anyone that he was not authorized to leave he would have immediately addressed the situation. He also attended the U.S. Navy and left early there also to go to the ARNG for his commission, and there were no issues with that case. (9) It is abundantly clear that he was in fact given permission to leave. He was never counseled. He did return his gear as he was instructed and no one approached him at that time. He was never called or notified in any way when they claim he was AWOL. He was placed in the IRR and renewed his IRR status several times to complete his service obligation. These are all facts and cannot be disputed. He did everything that was reasonably expected of him to the satisfaction of his contract. 5. See applicable references below. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board noted that the available evidence indicates the applicant believed that simply expressing his need to leave his FLARNG unit and having his company commander verbally agree to his departure was all that was required to relieve him of his obligation to the unit. The Board noted that until orders are published directing a discharge or transfer to another status, a Soldier continues to be obligated to his or her unit of assignment. In this case, the Board agreed that the applicant had an obligation to remain in contact with his unit until his situation was resolved, and it appears he did not. As a result, he accumulated unexcused absences that resulted in his discharge. The Board found insufficient evidence of errors on the part of his unit to support a recommendation to remove any unexcused absences from his record. 3. The Board agreed that the applicant's eligibility to retain his PSEB was contingent upon him remaining in good standing in the FLARNG. As specified in his PSEB contract, his voluntary departure from his unit would terminate the incentive with recoupment. Based on a preponderance of evidence, the Board determined that recoupment of the portion of the PSEB he received is not in error or unjust. ? 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Department of Defense Instructions 1205.21 (Reserve Component Incentive Programs Procedures), 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. 3. AR 135-178, chapter 13, as in effect at the time, states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because a notice was sent by certified mail was refused, unclaimed, or otherwise undeliverable, or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed. 4. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) in effect at the time: a. Paragraph 4-12 (Conditions of unexcused absence) states Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any one-year period a total of nine or more unexcused absences from scheduled training. When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered. Mail refused, unclaimed, or otherwise not delivered may not be used as defense against unexcused absences when notices were correctly addressed. b. Notice of intended relocation should be sent to the unit commander in writing as far in advance of departure as possible. The notice should include the new address (if known) and evidence that a relocation of residence is in fact to be made. ARNG and USAR Soldiers who give notice of relocation will be transferred/reassigned to the area of their new address. Soldiers who fail to give notice of relocation and Soldiers who cannot be transferred/reassigned per paragraph 4–20 will be given a 90–day leave of absence letter. Soldiers who relocate outside the United States may be transferred/reassigned to the USAR Control Group (active duty). c. When efforts fail, the letter of instructions (fig 4–2) will be sent by certified mail, restricted delivery, with return receipt requested. A copy of the letter and the post office receipt will be filed in the military personnel records jacket as an action-pending document. Include notice from the post office if the letter was undeliverable or unclaimed. Absence of proof of delivery does not change the fact that the Soldier was notified of the proper procedures to be taken on change of residence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013867 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1