IN THE CASE OF:	  

		BOARD DATE:	 28 June 2011 

		DOCKET NUMBER:  AR20100021949 


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, in effect, restoration of his rank to sergeant (SGT)/
E-5, restoration of his time in grade for SGT/E-5, back pay from 12 December 2007 to the present, cancellation of the recoupment of his bonus, and a refund of the money already collected.

2.  He states the Utah Army National Guard (UTARNG) found that his reduction in rank and discharge were unjust and revoked the orders reducing him and the discharge.  He states, in effect, the reduction and the discharge resulted in him having to pay back his enlistment bonus, loss of his full-time job as a military technician, and loss of time in grade as a SGT.  He is now in the U.S. Army Reserve (USAR) trying to move on with his military career.  He entered the USAR as a specialist (SPC)/E-4 and believes that he deserves back pay and time in grade (as a SGT/E-5) back to the date he was discharged from the UTARNG.  He also believes that the portion of the bonus that has been recouped should be refunded to him. 

3.  He provides five orders pertaining to his discharge, a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), two NGB Forms 22A (Correction to NGB Form 22), a Reenlistment/Extension Bonus Addendum, and orders releasing him from the USAR Control Group (Reinforcement).  



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 19 July 1993.  On 6 June 1999, and again on 22 April 2002, he extended his enlistment for 3 years.
2.  Orders 029-01, issued by the 97th Troop Command, UTARNG, dated 
29 January 2004, promoted him to SGT/E-5 effective the date of the orders.

3.  On 20 April 2005, he extended his enlistment for 6 years and acknowledged he understood he would receive a bonus in the amount of $15,000 under the Selected Reserve Incentive Program (SRIP) that would be paid in a lump sum
1 day after his expiration term of service (ETS) date.  By signing the form he acknowledged he understood recoupment of his bonus was required if he were to separate from the ARNG for any reason other than death, injury, illness, or other impairment not the result of his own misconduct.

4.  On 6 May 2007, his commander completed a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) due to his failure of the Army physical fitness test (APFT).  

5.  Joint Forces Headquarters, UTARNG, issued the following orders:

   a.  Orders 340-013, dated 6 December 2007, reduced him from SGT/E-5 to SPC/E-4 by reason of inefficiency.  Orders 193-019, dated 12 July 2010, revoked Orders 340-013.
   
   b.  Orders 035-050, dated 4 February 2008, show the applicant was separated from the ARNG with a general discharge and assigned to the USAR Control Group, Individual Ready Reserve (IRR), effective 15 December 2007.  These orders show he entered the SRIP on 19 July 2005 and recoupment of his 6-year extension bonus in the amount of $9,166.67 was authorized.  These orders also show the authority for his discharge was National Guard Regulation 600-200, paragraph 8-35f.  
   
   c.  Orders 047-002, dated 16 February 2010 revoked Orders 035-050.

   d.  Orders 047-007, dated 16 February 2010, discharged him from the ARNG with an honorable discharge and assigned him to the USAR Control Group (IRR) effective 4 February 2008 in the rank of SPC/E-4.  These orders show he entered the SRIP on 19 July 2005 and authorized recoupment of his 6-year extension bonus in the amount of $8,958.33.  Orders 193-020, dated 12 July 2010, amended Orders 047-007 to show his rank as SGT.

6.  His record includes an NGB Form 22, dated 15 December 2007, which shows he was discharged by reason of Unsatisfactory Performance and transferred to the USAR Control Group (Reinforcement) in the rank of SPC/E-4.  Item 18 (Remarks) of this form shows recoupment was required in the amount of $9,166.67.

	a.  On 16 February 2010, an NGB Form 22A was issued to correct his NGB Form 22 to show he was discharged on 4 February 2008 and the amount of the recoupment action was $8,958.33.  The reason for discharge was not changed.

	b.  On 19 July 2010, a second NGB Form 22A was issued correcting his NGB Form 22 to show his rank/grade as SGT/E-5 and his date of rank as 29 January 2004.  

7.  On 9 July 2008, the U.S. Army Human Resources Command issued Orders C-07-813048 releasing the applicant from the USAR Control Group (Reinforcement) and assigning him to a USAR troop program unit (TPU) where he continues to serve.  These orders show the gaining commander agreed to accept a Soldier who was flagged for APFT.

8.  On 29 October 2010, Headquarters, 88th Regional Support Command, issued Orders 10-302-00005 promoting him to SGT effective 1 November 2010.  

9.  During the processing of this case, the Defense Finance and Accounting Service (DFAS) provided an advisory opinion based on information provided by the UTARNG and NGB.  The advisory official stated, in effect, that the applicant's reduction to E-4 had been revoked, but this change had not been posted to his account so he could receive any retroactive pay he is entitled to.  This official also stated the applicant had completed 30 months of his 72-month extension contract requiring recoupment of $8,750, not $8,958.33 as stated in the orders discharging him from the ARNG.  The advisory official included a Reserve/Guard Bonus Recoupment Worksheet confirming recoupment is required in the amount of $8,750.  

10.  On 13 April 2011, the applicant was provided a copy of the advisory opinion and supporting documents for his review and comment.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was paid an SRIP bonus of $15,000 contingent on him fulfilling the terms of his ARNG extension contract.  However, he was discharged before he served the 6 years required by his contract.  Contrary to the applicant's contention, his discharge was not revoked.  The only thing that changed was the characterization of his discharge, from general to honorable.  The reason for his discharge remained the same.  As a result, recoupment of the unearned portion of his SRIP bonus is required and he is not entitled to a refund of the amount already collected.  

2.  Calculations made by DFAS show an error in the amount to be recouped.  His records, as amended, show $8,958.33 should be recouped; however, DFAS has correctly calculated the amount to be recouped as $8,750.  Therefore, he is entitled to correction of his record to show $8,750 of his SRIP bonus will be recouped.  

3.  He was promoted to SGT/E-5 on 19 January 2004 and reduced in 2007.  In 2010, the order reducing him was revoked.  Therefore, he is entitled to correction of his record to show his date of rank for SGT/E-5 is 19 January 2004 and he is entitled to any pay and allowances he is due as a result of this correction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing $8,750 of his SRIP bonus will be recouped; 

	b.  showing his date of rank for SGT/E-5 is 19 January 2004; and

	c.  providing him all pay and allowances, and refunding to him any overpaid SRIP bonus recoupment, he is due as a result of the above corrections.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to cancellation of the recoupment of his bonus and refunding him the money already collected.



      _______ _   _X______   ___
               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.
ABCMR Record of Proceedings (cont)                                         AR20100021949



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ABCMR Record of Proceedings (cont)                                         AR20100021949



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