IN THE CASE OF:
BOARD DATE: 13 AUGUST 2008
DOCKET NUMBER: AR20080007577
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his debt as a result of recoupment of his Army National Guard (ARNG) enlistment bonus be cancelled.
2. The applicant states that he is still fulfilling his contract obligation.
3. The applicant provides no additional documentation in support of his application.
CONSIDERATION OF EVIDENCE:
1. On 5 March 2001, the applicant enlisted in the Alabama Army National Guard (ALARNG) in Montgomery, Alabama, for 6 years in the pay grade of E-2. He successfully completed his training as a motor transport operator. He was promoted to the pay grade of E-3 on 4 April 2001.
2. Annex B of his enlistment contract shows that he was to be paid a total bonus of $8,000.00 for the enlistment bonus option; that he was to receive one half of the total authorized amount after he became a secondary school graduate, completed initial active duty training, and was awarded the military occupational specialty for which he enlisted; that he was to receive the remaining one half of the total authorized amount (less taxes) upon satisfactory completion of the fourth anniversary of his enlistment; and that he would not receive a payment until all requirements were met and entitlements were verified and certified by the proper authority.
3. Annex B of the applicant's enlistment contract also shows that he understood that he would be terminated from bonus eligibility, with recoupment, if he became an unsatisfactory participant by accumulating nine unexcused absences within a 12-month period effective on the date of the ninth unexcused absence, or by failing to attend or complete annual training without commander approval.
4. On 19 July 2002, the applicant was notified by the Commander, 231st Military Police Battalion, that he had been absent from the scheduled unit training assembly (UTA) or multiple unit training assemblies (MUTA) 11 times in total. He was told that under the provisions of Army Regulation 135-91, he was required to attend all scheduled UTA and annual training (AT) periods. The applicant was also told that unless his eleventh accrued absence was excused, he would have accrued 11 unexcused absences within a 1-year period. He was informed that the unit's attendance standing operating procedures state that six unexcused absences mandates a reduction and that the next scheduled MUTA would be on 9, 10, and 11 August 2002 at 0750 hours.
5. On 27 August 2002, Orders 239-026 were published reducing the applicant to the pay grade of E-2 with an effective date of 13 July 2002.
6. The applicant was honorably discharged from the ALARNG on 11 August 2002 under the provisions of National Guard Regulation 600-200,
paragraph 8-26k (unsatisfactory participant), and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He had completed 1 year, 5 months and 7 days of net service this period.
7. On 19 December 2005, Orders M-12-505512 were published releasing the applicant from his USAR Control Group (AT) status and ordering him to active duty effective 29 January 2006 in support of Operation Iraqi Freedom.
8. On 6 February 2008, Orders 037-0113 were published releasing the applicant from active duty effective 27 February 2008 and assigning him to the USAR Control Group (AT) to complete his Reserve obligation.
9. On 10 June 2008, during the processing of this case, an advisory opinion was obtained from the Chief, Incentive and Budget Branch, Enlisted Accession Division, who recommended that the applicant's request be denied based on the fact that Soldiers who are separated for non-participation are subject to bonus recoupment.
10. A copy of the advisory opinion was forwarded to the applicant on 10 June 2008. To date, there has been no response from the applicant regarding the advisory opinion.
11. Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) states that the Secretary of the Army may remit or cancel a Soldier's unpaid debts to the United States before or at the time of his or her honorable discharge if such action is in the best interest of the United States.
DISCUSSION AND CONCLUSIONS:
1. The applicant's ARNG enlistment contract clearly stated that he could be terminated from bonus eligibility with recoupment if he separated from the ARNG for any reason unless due to death, injury, illness, or other impairment not the result of own misconduct.
2. The applicant's contentions have been noted. However, he was separated from the ALARNG on 11 August 2002 after he was determined to be an unsatisfactory participant. His ARNG enlistment contract clearly informed him that separation under this condition would require recoupment of his enlistment bonus. Therefore, the debt is valid based on the terms of his contract.
3. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___ XXX ___
CHAIRPERSON
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.
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