IN THE CASE OF:	   

		BOARD DATE:	    24 January 2012

		DOCKET NUMBER:  AR20110002900 


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:

* the recoupment of his prior service enlistment bonus (PSEB) be found improper and that no debt be owed to the U.S. Government
* promotion to the rank/grade of master sergeant (MSG)/E-8
* back pay of the difference in pay between GS-09 and GS-11 from 1 May 2006 to 17 January 2007
* correction of the records related to all complaints filed with the Inspector General (IG) and the Equal Employment Opportunity (EEO) Office from 2006 to 2009
* punitive damages, formal reprimand of officials, and disciplinary action of his chain of command involved in the complaints from 2006 to 2009

2.  The applicant states:

* He was issued a bonus in 2008 but it was later recouped improperly as a form of reprisal for protected activity related to EEO/IG and congressional investigation(s)
* Both the EEO Office and the Office of the IG failed to properly process his claims of retaliation from 2006 to the present
* Both offices failed to maintain the complaints he lodged with each office
* He received unfair discriminatory actions
* An erroneous debt of $15,000.00 was entered against him
* He faced unilateral action and he was passed over for promotion to MSG/E-8 and positions in the civil service
* He has learned that the complaints he filed with the District of Columbia Army National Guard (DCARNG) EEO/IG offices were never properly documented in their tracking system and both offices failed to keep copies of his complaints in their files
* The National Guard Bureau (NGB) improperly rescinded a job offer as a GS-11 after the position had been offered to him and after he had accepted it
* The NGB scrutinized his application and later attempted to downgrade this position from GS-11 to GS-09 to make the position less appealing since he was already a GS-09
* He was discriminated against after he had filed a congressional inquiry

3.  The applicant provides:

* Self-authored legal interpretation of each of his issues
* DA Form 1559 (IG Action Request)
* Email exchange with his supervisor
* DA Form 4856 (Developmental Counseling Form)
* DA Form 5500-R (Body Fat Content Worksheet (Male))
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* Training printout
* Orders 238-015 (temporary duty orders) and Orders 250-017 (amendment)
* Self-authored request for unconditional release from his unit
* Multiple email exchange with various individuals, including his commander and supervisor 
* Military Leave and Earnings Statement
* Self-authored appeal for promotion consideration
* Self-authored letter titled "Obstruction of Justice"
* Self-authored Formal Official EEO Complaint with a Table of Contents and other documents, including computer printouts
* Various letter to and from his Member of Congress
* Multiple fax cover sheets
* Multiple letters from the Defense Finance and Accounting Service (DFAS)
* Letters to and from the DCARNG IG
* Multiple email exchange with various officials within the DCARNG
* Orders 169-100 (transfer to the Retired Reserve)

CONSIDERATION OF EVIDENCE:

1.  With respect to the issue of his civilian employment and backpay of the difference in pay between GS-09 and GS-11 from 1 May 2006 to 17 January 2007, Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  Issues related to civilian employment and civilian pay are not within the purview of this Board.  As such, this issue will not be discussed further in the Record of Proceedings (ROP).

2.  With respect to the correction of records related to all complaints filed with the IG and EEO Offices, there is no indication that any correspondence or documents related to these issues are filed in his official military personnel file (OMPF).  Furthermore:

	a.  Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her.

	b.  It appears the applicant refers to IG and/or EEO reports that contain privileged information that must be protected from disclosure.  As such, these reports are filed in accordance with each agency's regulatory guidance or rules.  Since these records are not filed on the applicant's OMPF and since the applicant neither specified what the error is or what record correction he seeks nor exhausted his administrative remedy with respect to contacting each agency, this issue will also not be discussed further in the ROP.

3.  With respect to the issue of punitive damages, formal reprimand of officials, and disciplinary action of his chain of command involved in the complaints from 2006 to 2009, Army Regulation 15-185 states that when an applicant has suffered reprisal under Title 10, U.S. Code, section 1034 and Department of Defense (DOD) Directive 7050.6, the ABCMR may recommend to the Secretary of the Army that disciplinary or administrative action be taken against any Army official who committed an act of reprisal against the applicant.  However, there is no evidence the applicant suffered a reprisal or has addressed such issue with the DOD.  Since the ABCMR is not an investigative body and since the applicant has not addressed the reprisal issue with DOD, this issue will also not be discussed further in the ROP.

4.  Having had prior service in the Regular Army (14 January 1986 to 13 January 1989) and the ARNG (14 January 1989 to 4 December 2002), the applicant enlisted in the Maryland ARNG (MDARNG) on 15 December 2002 and he held various military occupational specialties, primarily 88M (Motor Transport Operator).  
5.  He was transferred to the DCARNG at some point and he was assigned to the 140th Transportation Company.  He was promoted to sergeant first class (SFC)/E-7 on 15 May 2005.

6.  On 3 November 2007, he executed a 6-year extension of his enlistment in the ARNG.  In connection with this extension, he completed Annex R (Reenlistment/Extension Bonus Addendum – ARNG) wherein he stated:

* I will not have more than 20 years of total military service upon my current expiration of term of service (ETS) and I am reenlisting for 6 years
* I will receive a total bonus payment in the amount of $15,000 less taxes for a 6-year reenlistment/extension in the NGB approved critical UIC (Unit Identification Code)/skill of 88M
* My bonus will be paid in one lump sum payment which would be processed on the date my reenlistment or extension contract takes effect
* I understand I will be terminated from bonus eligibility with recoupment if any of the conditions listed in Section VI (Termination with Recoupment) of this Addendum existed including if he separated from the ARNG for any reason unless due to death, illness, or other impairment not the result of his own misconduct

7.  There is no indication he was recommended for or promoted to MSG/E-8.

8.  He was honorably discharged from the ARNG on 6 October 2009 and he was transferred to the Retired Reserve.  His NGB Form 22 (Report of Transfer and Record of Service) shows he completed a total of 21 years, 9 months, and 22 days of total service for retired pay. 

9.  On 28 September 2009, by letter, DFAS notified him that he was indebted to the U.S. Government in the amount of $15,034.00, a recoupment of the unearned portion of his enlistment or reenlistment bonus.

10.  On 17 December 2010, by letter, DFAS officials notified the applicant that as a result of an audit, his debt was previously reduced by $2,500.00, from $15,034.00 to $12,534.00 after a recalculation.  The reduced debt was further reduced by another $6,250.00 bringing the balance due to $6,284.00.  He was also informed of his rights to appeal.

11.  On 30 December 2010, by letter, DFAS notified him that he was indebted to the U.S. Government in the amount of $6,324.00, a recoupment of the unearned portion of his enlistment or reenlistment bonus.

12.  An advisory opinion was obtained from the NGB on 21 December 2011 in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  The official stated:

	a.  In 2008, the applicant was paid a reenlistment extension bonus in two payments totaling $12,500.00.  He signed the Selected Reserve Incentive Program (SRIP) eligibility form and stated he will not have more than 20 years of total military service upon his ETS.  According to the Education and Incentives Branch, the applicant had 21 years and 9 months of service which made him ineligible for the bonus.  DOD Instruction (DODI) 1205.21 and NGB SRIP policy prohibit a Soldier with over 20 years of service from receiving the reenlistment extension bonus. 

	b.  He retired on 6 October 2009.  According to the DOD Financial Management Regulation 7A, chapter 61-4, entitlement to this bonus would be terminated if a member failed to satisfactorily complete the designated term of enlistment or extension of enlistment for which the bonus was paid unless the bonus was due to reasons beyond his control (death, injury, or other impairment not due to own misconduct).  Additionally, DFAS reduced his debt from $15,034 to $6,284.

	c.  There is no evidence in the applicant's records and he provided none to validate his eligibility for promotion to MSG/E-8.  

13.  The applicant responded by email on 8 January 2011.  He stated:

* He had reported all his issues to the NGB but he has not received any response
* None of his issues have been investigated appropriately
* The NGB has either negligently or willfully processed an investigation of his claims
* He is dissatisfied with the NGB's response

14.  Title 37, U.S. Code, section 308i(a)(2)(A), in effect at the time, stated a person who is a former enlisted member of an armed force who enlists in the Selected Reserve for a period of 3 or 6 years in a critical military skill designated for a PSEB maybe paid such a bonus only if the person has not more than        20 years of total military service and received an honorable discharge at the conclusion of all prior periods of service.

15.  Army Regulation 135-7 (Incentive Programs) states the PSEB incentive offers a cash bonus to eligible persons with prior military service who enlist in the Selected Reserve in a designated MOS announced by Headquarters, Department of the Army.  A cash bonus is offered to any person who meets certain requirements:

* received an honorable discharge at the conclusion of his or her last period of military service if last discharged from the ARNG or USAR
* has completed his or her statutory military service obligation
* has less than 20 years of total military service
* is not being released from active duty or full-time National Guard duty for the purpose of enlistment in the U.S. Army Reserve
* is not enlisting to qualify for a permanent civilian position where membership in the Selected Reserve is a condition of civilian employment
* has not previously been paid a bonus for enlistment, reenlistment, or extension of an enlistment in any Reserve Component of the Armed Forces

DISCUSSION AND CONCLUSIONS:

1.  With respect to his bonus issue:

	a.  The applicant previously completed 17 years of service for pay (January 1986 to January 1989 in the Regular Army and January 1989 to December 2002 in the ARNG) and an additional 5 years of service for pay (December 2002 to November 2007) for a total of 22 years of total service for pay on the date he reenlisted for 6 years – 3 November 2007.  

	b.  The law in effect at the time of the applicant's reenlistment in the ARNG stated that in order to be eligible for a PSEB, a member must have had less than 20 years of total military service.  The applicant clearly had more than 20 years of service. 

	c.  His contract stipulated he would be paid PSEB in the amount of $15,000.00 as an incentive.  In connection with his enlistment, he authenticated an addendum to his enlistment contract indicating he will not have more than 20 years of total military service upon his current ETS.  

	d.  Although not authorized the PSEB, he received the bonus nonetheless.  But, he failed to fulfill the requirements of his contract.  He reenlisted for 6 years on 3 November 2007 and he was transferred to the Retired reserve on 6 October 2009.  Accordingly, the unearned portion of his bonus was recouped.  There is neither an error nor an injustice.  

2.  With respect to the promotion issue, there is no evidence in his records nor did he provide any evidence that he was recommended for promotion to MSG/  E-8 by his chain of command for a vacancy promotion.  Additionally, there is no evidence he was selected for promotion by a Department of the Army promotion board and was denied such promotion.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  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.



      __________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)                                         AR20110002900





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ABCMR Record of Proceedings (cont)                                         AR20110002900



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