IN THE CASE OF: BOARD DATE: 19 October 2023 DOCKET NUMBER: AR20230002405 APPLICANT REQUESTS: entitlement to payment of the Foreign Language Proficiency Bonus (FLPB) for the period of 8 April 2015 – 7 April 2016 and 10 August 2016 – 30 September 2016. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), 3 November 2011 * Email communication * Orders Number 174-0004, 23 June 2022 * Orders Number 174-0005, 23 June 2022 * DD Form 827 (Application for Arrears in Pay), 7 July 2022 * Defense Finance and Accounting Service (DFAS) letter, 26 August 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 in pertinent part that he did not receive FLPB pay for the period of 8 April 2015 – 7 April 2016 and 10 August 2016 – 30 September 2016. He was advised by the finance office that back payment was unable to be made for this period because of the Barring Act and in order to receive payment for this period, he would need to request relief through this Board. Further, since he was out of the U.S. Army Reserve for a period in excess of a year, he would need to file a claim with the claims department in order to receive payment in arrears. He argues that the errors made were outside of his control because his unit took over a year to issue the appropriate orders. He is currently serving in the Active Guard/Reserve (AGR) program. 3. A review of the applicant's available service records reflects the following: a. On 4 February 2011, the applicant enlisted in the USAR for 8 years to serve in military occupational specialty 37F (Psychological Operations Specialist). b. On 4 November 2011, the U.S. Army Installation Management Command issued Orders Number 308-816 awarding the applicant's 37F military occupational specialty, effective 3 November 2011. c. On 8 April 2015, the applicant completed the Defense Language Proficiency Test (DLPT) scoring a 3/2+ in Spanish (QB). Spanish is the applicant's control language (CLANG). d. On 29 July 2015, Headquarters, 99th Regional Support Command issued Orders Number 15-210-00389 announcing the applicant's promotion to the rank/grade of sergeant (SGT)/E-5, effective 1 August 2015. e. On 11 August 2016, the applicant completed the DLPT scoring a 3/2+ in Spanish. f. On 2 February 2017, the applicant reenlisted for 6 years. g. On 27 April 2020, Headquarters, 99th Regional Support Command issued Orders Number 20-118-00132 announcing the applicant's promotion to the rank/grade of staff sergeant (SSG)/E-6, effective 2 May 2020. h. On 3 May 2021, the U.S. Army Human Resources Command (AHRC) issued Orders Number R-05-101619 ordering the applicant to active duty within the AGR program, effective 7 July 2021 for a period of 3 years. i. On 23 June 2022, AHRC issued Orders Number 174-0004 awarding the applicant's FLPB, effective 8 April 2015 with a termination date of 7 April 2016. The applicant is authorized FLPB for Spanish at a rate of $300.00 per month for a proficiency rating of 2+/2+. This order would be issued in conjunction with orders for Annual Training (AT), Active Duty for Training (ADT), Active Duty for Special Work (ADSW), Temporary Tours of Active Duty (TTAD), Inactive Duty Training (IDT) or AGR. FLPB would be terminated when the applicant completes the specified period of active duty. j. On 23 June 2022, AHRC issued Orders Number 174-0005 awarding the applicant's FLPB, effective 10 August 2016, with a termination date of 9 August 2017. The applicant is authorized FLPB for Spanish at a rate of $350.00 per month for a proficiency rating of 3/2+. This order would be issued in conjunction with orders for AT, ADT, ADSW, TTAD, IDT or AGR. FLPB would be terminated when the applicant completes the specified period of active duty. k. On 26 September 2022, the applicant was authorized FLPB at a rate of $350.00, effective 11 August 2022 through 31 August 2023 for the language of Spanish based upon his 11 August 2022, DLPT score of 3/2+. 4. The applicant provides: a. DD Form 214 dated 3 November 2011, reflective of the applicant's service on active duty from 7 June 2011 - 3 November 2011. b. Email reflective of the applicant being advised that he would need to seek relief through this Board in order to receive payment of FLPB for the period of 8 April 2015 – 7 April 2016 and 10 August 2016 – 30 September 2016 as provided on Orders Number 174-0004 and Orders Number 174-0005. c. DD Form 827 dated 7 July 2022, reflective of the applicant's submitted request for payment of FLPB for the periods of 8 April 2015 –7 April 2016 and 10 August 2016 – 30 September 2016. d. DFAS letter, dated 26 August 2022, reflective of the applicant being advised that DFAS Debts and Claims management was unable to process his request for FLPB citing that normally they would be able to make all necessary monetary adjustments to his pay record affected by the changes. However, since his pay office intervened and some pay adjustments were made, they would not continue to process any corrections. As such, no additional monetary benefits were due to him from their office as a result of the corrections made to his records. 5. The Barring Act, 31 USC, 3702 states that the Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, travel, transportation, payments for unused accrued leave, retired pay, and survivor benefits. A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. A claim that is not received in the time required under this subsection shall be returned with a copy of this subsection, and no further communication is required. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board found the evidence confirms the applicant was authorized the FLPB for the periods 8 April 2015 – 7 April 2016 and 10 August 2016 – 30 September 2016 but did not receive it because of processing delays. The Board determined the applicant’s record should be corrected to show timely requests for payment of the FLBP were submitted and as a result of this correction he should be paid the incentive for the periods in question. 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 by showing he submitted timely requests for payment of the FLPB for the periods 8 April 2015 – 7 April 2016 and 10 August 2016 – 30 September 2016. As a result of this correction, he should be paid the FLPB for these periods at the applicable rate. 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. The Barring Act, 31 USC, section 3702 states that the Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, travel, transportation, payments for unused accrued leave, retired pay, and survivor benefits. A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. A claim that is not received in the time required under this subsection shall be returned with a copy of this subsection, and no further communication is required. 3. Army Regulation 11-6 (Army Foreign Language Program) Chapter 4 (Foreign Language Proficiency Bonus) provides that a Soldiers language proficiency is determined by the level of proficiency they possess in a foreign language skill as certified by an approved testing method. a. A USAR Soldier is eligible to receive FLPB if they meet all of the following conditions: * be assigned to a drilling TPU or IMA paid status, "AGR", or on active-duty orders (ADOS) * not adjudicated as an unsatisfactory participant in the previous 12 months * meet minimum annual service requirements for retirement eligibility during the 12-month certification period for which FLPB was paid * enlisted Soldiers must hold an MOS (military occupational specialty qualification (MOSQ)) to be eligible * not be required to have performed duty or received base pay in the month for which they are entitled to FLPB and are not subject to the 1/30th rule * be certified proficient within the past 12 months (24 months if the linguist scores 3/3 or higher on their DLPT/OPI) in their Control Language (CLANG) b. Career Management Field 37 and 38 Soldiers are eligible to draw FLPB at the sub 2/2 rate for their CLANG. c. Paragraph 5-13 (Foreign Language Proficiency Pay Bonus Payment Criteria) provides that the effective date of FLPB payments is the date of the DLPT or the date eligibility begins. For DLPT scores under 3/3, FLPB entitlement ends on the last day of the month the DLPT was taken one year (12 months) later. Soldiers must recertify before the one-year anniversary of their DLPT or OPI to remain eligible to receive FLPB. For DLPT scores of 3/3 or higher, FLPB entitlement ends on the last day of the month the DLPT was taken 2 years later (24 months). Soldiers must recertify before the 2-year anniversary of their DLPT to remain eligible to receive FLPB. 4. Department of the Army Pamphlet 11-8 (Army Foreign Language Program Handbook) table 6-1 (FLPB payment levels) provides: Table 6 – 1 Foreign Language Proficiency Bonus payment levels — Continued DLPT Score Payment 1+/1+1 150 2/2 200 2/2+ 250 2+/2+ or 2/3 300 2+/3 350 3/3 400 3/3/32 or 4/4 500 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002405 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1