IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120018532 


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:

* advancement to specialist (SPC)/E-4
* back pay for advancement from private (PVT)/E-1 to private (PV2)/E-2 and from private first class (PFC)/E-3 to SPC/E-4
* payment of a bonus in the amount of $7,500.00
* in effect, payment for accrued leave
* in effect, payment for lost income tax checks

2.  He states he completed out-processing "before corrections were resolved."  He did not have time to file for social security benefits or Traumatic Serviceman's Group Life Insurance (TSGLI).  He states that "disability patients told me of another check."

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 March 2011
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 3286 (Statement of Understanding – Regular Army Enlistment Delay for Applicants with Prior Service or an Existing Military Service Obligation)
* National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 – Non-Prior Service Enlistment Bonus Addendum – Army National Guard (ARNG) of the United States)
* two DD Forms 1966 (Record of Military Processing – Armed Forces of the United States)

CONSIDERATION OF EVIDENCE:

1.  Social security benefits and income tax checks are not administered by the Army.  The applicant must address these matters with the Social Security Administration and the Internal Revenue Service.  These matters will not be discussed further in this Record of Proceedings.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-5, states the Board will not consider any application if it determines that an applicant has not exhausted all available administrative remedies.

	a.  With regard to TSGLI, there is no evidence the applicant has submitted a claim for TSGLI or that such a claim was denied.  If he wishes to submit a claim, he must follow the procedures provided on the U.S. Army Human Resources Command website at https://www.hrc.army.mil/TAGD/TSGLI%20Instructions.  This issue will not be discussed further in this Record of Proceedings.

	b.  With regard to back pay for advancement from E-1 to E-2 and payment for accrued leave, there is no evidence showing the applicant has submitted a claim with the Defense Finance and Accounting Service (DFAS) for arrears of pay.  He may review the instructions for filing a claim on the DFAS website at http://www.dfas.mil/debtandclaims/submitclaim.html.  This issue will not be discussed further in this Record of Proceedings.

3.  On 29 June 2007, the applicant enlisted in the Alabama ARNG for a period of 6 years.  He signed an Enlistment/Reenlistment Agreement showing he enlisted for training in military occupational specialty (MOS) 25U (Signal Support Systems Specialist) and assignment to Headquarters and Headquarters Company, 1st Battalion, 167th Infantry (Mechanized).

4.  An NGB Form 600-7-1-R-E shows he affixed his initials indicating he was enlisting for a $20,000.00 enlistment bonus with half payable upon completion of advanced individual training and half payable on the third-year anniversary.  He indicated he understood that his bonus would be terminated with recoupment if he separated from the ARNG for any reason other than death, injury, illness, or other impairment not the result of his own misconduct.

5.  His records include a DD Form 214 showing he was honorably released from active duty for training on 14 February 2008 after completing basic combat and advanced individual training for MOS 25U.

6.  An NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the Alabama ARNG effective 6 October 2008 for enlistment in another component of the U.S. Armed Forces.  This NGB Form 22 shows his rank/pay grade as PV2 and his date of rank (DOR) as 18 May 2008.

7.  The available records are void of documentation pertaining to payment and/or recoupment of his ARNG enlistment bonus.

8.  A DA Form 3286, dated 26 September 2008, shows, in part, he enlisted for a cash bonus in the amount of $30,000.00.  He indicated he understood he was to receive an initial payment upon completion of MOS training and arrival at his first duty station with the remaining amount to be paid in equal annual anniversary payments across the remainder of the term of his enlistment.

9.  On 7 October 2008, he enlisted in the Regular Army for a period of 6 years in MOS 25U.

10.  His Enlisted Record Brief (ERB) shows he arrived at his first permanent duty station on 5 November 2008.  His ERB shows his date of rank for PFC/E-3 as 10 March 2009.

11.  On 10 December 2010, a PEB convened to consider his fitness for continued service.  The PEB determined he was unfit based on a diagnosis of psychotic disorder, not otherwise specified, and that the diagnosis was not combat related.  The PEB recommended his permanent retirement for disability with a rating of 50 percent.  The DA Form 199 documenting the PEB Proceedings shows his rank as PFC at that time.

12.  He concurred with the PEB findings and waived a formal hearing of his case.  On 27 December 2010, the PEB findings and recommendations were approved.

13.  On 27 March 2011, he was honorably retired by reason of permanent disability (enhanced).  His DD Form 214 for this period of service shows his rank/grade as PFC/E-3 and the effective date of his pay grade as 10 March 2009.

14.  His records are void of documentation showing he was advanced to 
SPC/E-4.

15.  Two advisory opinions were provided during the processing of this case.

	a.  On 31 December 2012, the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Department of the Army Office of the Deputy Chief of Staff, G-1, provided an advisory opinion regarding the applicant's enlistment bonus.

		(1)  The advisory official stated the applicant enlisted in the Regular Army on 8 October 2008 for a $30,000.00 enlistment bonus.  He was paid an initial $10,000.00 installment on 24 April 2009 and a second installment of $4,000.00 on 14 April 2010.  His installments should have been paid in October of each year, so he should have received a third installment of $4,000.00 in October 2010 for a total of $18,000.00.  The remaining $12,000.00 is not payable due to his retirement.

		(2)  The advisory official recommended paying the applicant the remaining $4,000.00 of his bonus.

	b.  On 18 January 2013, the Chief, Department of the Army Promotions, U.S. Army Human Resources Command, provided an advisory opinion regarding the applicant's advancement to SPC/E-4.

		(1)  The advisory official stated that based on records available to the Junior Enlisted Promotions Section, the applicant would have been eligible for automatic advancement to SPC/E-4 on 10 September 2009, but he received an adverse action flag on 4 September 2009.  The flag was removed on 8 October 2009.  In accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 2-3f, Soldiers flagged at the time they are eligible for automatic promotion who are later recommended for promotion require completion of a DA Form 4187 (Personnel Action) and a grade change transaction.  It is the responsibility of unit commanders to take action to promote these Soldiers on an individual basis.

		(2)  The applicant received two additional adverse action flags, one on 1 March 2010 and another on 1 April 2010.  He also received a field-grade Article 15 under the Uniform Code of Military Justice on 7 July 2010.

		(3)  The advisory official recommended denial of the applicant's request for advancement to SPC/E-4.

16.  The applicant was provided a copy of both advisory opinions for his comment or rebuttal.  He did not respond within the time allotted.

17.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Chapter 1 provides that company, troop, battery, and separate detachment commanders are authorized to advance Soldiers to the grades of PV2, PFC, and SPC.

	b.  Chapter 2 provides the procedures for advancing Soldiers to SPC.

		(1)  Advancement to SPC will be made automatically by The Total Army Personnel Data Base for posting to the automated personnel file and the master military pay file.

		(2)  Eligibility criteria for automatic advancement to SPC state:

* advancement to SPC requires 24 months of time in service and 6 months of time in grade
* Soldiers must not be flagged or barred from reenlistment
* any Soldier reduced must be fully qualified (without waiver) for promotion to the next higher grade

		(3)  Soldiers flagged or barred from reenlistment at the required time for automatic promotion but later recommended require a DA Form 4187 and a grade change transaction to be promoted.

18.  Office of the Under Secretary of Defense directive-type memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, provides Department of Defense policy on repayment of unearned portions of bonuses, special pay, educational benefits, and stipends.  This memorandum states, in part, that when a service member is separated or retired for disability that was not incurred in a combat zone or in a combat-related operation, if the disability is not the result of the member's misconduct, the Secretary concerned may determine whether to pay an unpaid balance of a pay or benefit.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support his request for correction of his records to show he was advanced to SPC/E-4.

	a.  When he initially became eligible for advancement to SPC/E-4 in 2009, he was flagged, which prevented his promotion.  In 2010, he was flagged twice, and he received field-grade nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice.  Assuming the flags were removed, it was his commander's decision whether he would be advanced.  Based on the information provided in the advisory opinion, it is reasonable to presume his commander decided not to advance him.  In the absence of documentary evidence showing he was improperly denied advancement to SPC/E-4, there is no basis for granting this portion of his request.

2.  The available evidence partially supports his request for payment of additional bonus money.

	a.  His record indicates he enlisted in the Alabama ARNG for an enlistment bonus.  In the absence of evidence indicating otherwise, it is presumed this bonus was administered in accordance with the terms of his contract.

	b.  He later enlisted in the Regular Army for a period of 6 years and a cash bonus of $30,000.00.  An advisory official indicates he has been paid two installments of this bonus, the initial $10,000.00 installment on 24 April 2009 and a second installment of $4,000.00 on 14 April 2010.  The advisory official states, in effect, that the applicant should have received annual installments in October 2009 and October 2010.  Considering that his records indicate he was assigned to his first duty station on 5 November 2008, it appears he should actually have received these payments in November 2009 and November 2010.

	c.  It appears he received his initial installment several months after he arrived at his first duty station, which had the effect of establishing an incorrect anniversary date.  Had his anniversary date been properly established, he would have received a third $4,000.00 installment in November 2010 prior to his retirement in March 2011.  It would be appropriate to pay him this installment at this time.

	d.  Upon retirement, he was no longer eligible for bonus payments.  There is no basis for paying him any amount other than that addressed above.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 to show 5 November as his anniversary date for the purpose of bonus installment payments and paying him the $4,000.00 bonus installment he would have been due on 5 November 2010 as a result of this correction.

2.  The Board further determined the evidence presented is 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 advancement to SPC/E-4 and payment of a bonus in the amount of $7,500.00.



      ___________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)                                         AR20120018532



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018532



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1