BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130001754 


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 removal of his second period of service in the Inactive National Guard (ING) from his records.

2.  The applicant states:

	a.  He wants his ING status removed from his records so his extension bonus will not be affected.  He did not request to be placed in the ING a second time.  His unit made this move and informed him after that it would not impact his extension bonus.  The period in question is 1 October 2009 to 4 February 2012.  Afterward, he was returned to an active National Guard status and he drilled until February 2012.

	b.  In November 2009 while working as a contractor with the State Department in Afghanistan, he called his unit to discuss split training with Sergeant First Class (SFC) D____ in order to make up missed drill dates upon his return to Utah from Afghanistan per his prior arrangement with the unit commander.  He was told by SFC D____ that split training was not possible anymore and that he would have to transfer to the ING.  He tried to explain that transferring to the ING was not an option for him because he had been in the ING once before and a Soldier cannot be assigned to the ING twice.

	c.  SFC D____ insisted he was incorrect about his facts.  Then SFC D____ informed him that he had already transferred him to the ING and he would not discuss it any further.

	d.  In May 2012, the unit administrator (UA) told him he needed to request to transfer from the ING a second time.  He contends he never requested to be placed in the ING a second time.   SFC D____ also told him to backdate his request so it would not affect his bonus.  All the necessary documents were submitted and all documents were signed and returned to the UA.

3.  The applicant provides:

* self-authored memorandum for record, dated 18 January 2010
* email from SFC D____, dated 17 December 2012, subject:  ING Limitations

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Army National Guard (ARNG) on 20 September 2001.

2.  In 2006, he reenlisted in the ARNG for a period of 6 years and a reenlistment bonus in the amount of $15,000.00 under the Selected Reserve Incentive Program (SRIP).  Section V (Termination) of his National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) or DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) – Reenlistment/Extension Bonus Addendum – ARNG of the United States) states, "I understand I will be terminated from bonus eligibility with recoupment if I…Fail to extend my enlistment for time served in the ING within 30 days after return to my unit.  Recoupment is required from the effective date of transfer to the ING."

3.  Utah ARNG Orders 291-037, dated 18 October 2007, show he was released from Support Company, 19th Special Forces Group, and transferred to the ING effective 17 October 2007 for a period of 1 year due to an employment conflict.  Utah ARNG Orders 104-011, dated 14 April 2009, show he was released from the ING and transferred to Support Company, 19th Special Forces Group, effective 16 October 2008.

4.  He was promoted to staff sergeant on 15 September 2009.

5.  He provides a self-authored memorandum for record, dated 18 January 2010, wherein he requests to be placed in the ING for the period 15 November 2009 to 15 February 2010 due to his "employment/soldier situation."

6.  His records contain a self-authored memorandum for record, dated 4 February 2010, wherein he requested to be taken out of the ING effective 4 February 2010.

7.  Utah ARNG Orders 070-015, dated 11 March 2010, show he was released from the 197th Special Troops Company and transferred to the ING effective 1 October 2009 for a period of 6 months based on his request.  His records show he was released from the ING effective 4 February 2010.

8.  On 28 June 2012, he requested a transfer to the USAR Control Group (Individual Ready Reserve (IRR)).  He stated his civilian employment in Afghanistan and authorized leave rotations were incompatible with his obligation to attend unit drill assemblies and annual training.

9.  Utah ARNG Orders 284-004, dated 10 October 2012, show he was honorably discharged from the ARNG and assigned to the USAR IRR effective 31 July 2012.  These orders also show:

* his SRIP was terminated
* recoupment of a reenlistment bonus in the amount of $9,791.67

10.  He also provides an email from himself to an unidentified recipient, dated 17 December 2012, subject:  ING Limitations, which appears to contain an email message addressed to him from SFC D____ stating:

* a National Guard Soldier can only be placed in the ING one time
* this is not information that is in any Army regulation or SRIP policy guidance and was not known by the Utah ARNG
* since the applicant has been in the ING twice, he cannot be placed in the ING again
* unlike his previous guidance, he stands corrected
* being in the ING does not protect the applicant's bonus
* the Utah ARNG is only able to let him split training on a limited basis with a maximum of 12 unit training assemblies split per year – less than one calendar quarter
* he needs to know how often the applicant plans to return to drill with the unit
* if the applicant goes beyond 90 days without being paid by the Army then he risks being placed on the "no validation pay report" that will automatically recoup his bonus and initiate separation action
* if the applicant transfers to the USAR IRR, his bonus will be recouped as well

11.  A staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, in the processing of this case who recommends disapproval of the applicant's request for the following reasons:

	a.  The applicant was a full-time contractor working in Afghanistan and was not available to attend monthly training assemblies due to his employment and its location.  His unit notified him that they could not carry him with multiple excused absences and recommended his transfer to the ING.

	b.  For the unit to continue carrying him on the unit rolls in the hope that his civilian employment situation would return him to a continental United States (CONUS) location allowing him to return to an active drilling status, he was transferred into the ING twice.  His employment situation did not change and the unit had no recourse but to separate him and transfer him to the USAR IRR.

	c.  Army Regulation 135-91 (ARNG and USAR – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 4-10b, states, "Employment conflicts, overtime, schooling, and loss of income are not normally considered valid reasons for absence from training.  If any of these conditions create a continuing hardship, the unit commander will refer the case through channels to the approval authority.  The general officer commander (for USAR) or the State Adjutant General (for ARNG) will decide whether to retain or remove the Soldier from the unit.  While awaiting this decision, the Soldier is required to participate."

	d.  He was not able to participate in training or drill assemblies with his unit and was not able to provide a timeline for when he could return to an active drilling status.

12.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He responded (in some places he erroneously referred to the "Board's finding" rather than the "advisory opinion's finding") and stated:

	a.  In January 2009, he spoke personally with the unit commander who gave him authorization to drill quarterly to fulfill his military obligation for unit drill attendance.  After that meeting, he complied with his instruction and attended unit drills on a quarterly basis as agreed.

	b.  During November 2009, he learned that the full-time unit NCO had involuntarily moved him to an ING status for a second time as of 15 October 2009.  This was brought to his attention while he was working in Afghanistan from another unit member during a casual telephone conversation and not through the unit chain of command.

	c.  He then contacted his unit commander regarding his change in status and informed him that according to National Guard Regulation 614-1 (Inactive National Guard), it was against policy to be in an ING status for a second time.  During this time, the unit NCO did not return any of his email or telephone calls regarding the matter.

	d.  He later sent the unit commander a letter requesting an interstate transfer (IST) to an Idaho ARNG unit that would allow him to drill quarterly.  They later discussed the situation on the telephone and the unit commander assured him that the situation would be taken care of and there was no need for an IST.  At this point he withdrew his request for an IST.

	e.  He returned to the United States on leave in November 2009 and did not hear anything else on the matter from his unit.  Therefore, he thought the situation had been rectified.  It wasn't until he returned to the United States on leave in February 2010 that he found out that he was still in an ING status.  At this time, he was advised that it was his responsibility to remove himself from ING status by submitting a letter requesting removal.  He thought it was strange that he was required to fix a problem that the unit NCO created.

	f.  He immediately submitted the letter for removal from the ING.  Almost 2 years later in November 2012 he found out he is expected to make payments to return a portion of the bonus money due to his failure to meet contractual obligations.  It was also during November 2012 that he found out that had he submitted the letter within 30 days of being placed in an ING status – which he could have done while home on leave in November 2009 – he could have avoided the issue of bonus recoupment.  Since the unit NCO failed to notify him in a timely manner, he exceeded the 30-day window which led to the current situation.

	g.  The Board's finding that "the unit notified him that they could not carry him with multiple excused absences" is false since the unit did not notify him during the time in question.  He was only notified by the unit in April 2012 that he could no longer drill quarterly.

	h.  The Board's finding that the unit hoped "his civilian employment situation would return him to CONUS location" was false.  The unit never had this hope and he never gave the unit this idea.  The understanding was that he was working in Afghanistan and would drill on a quarterly basis with the unit as requested and approved by the former unit commander and the current unit commander with which he complied until April 2012 when he was notified by the current unit commander that he could choose IST or USAR IRR.

	i.  The finding that he was "not able to participate in training or drill assemblies" is false.  He participated in unit drills on a quarterly basis and attended annual training (AT) as approved by his unit commanders.

	j.  The finding that he was "not able to provide a time-line for when [he] could return to an active drilling status" is false.  He was in an active drilling status with command approval to drill quarterly.  He attended his required AT and there was no mention from the unit that they needed a timeline for when his employment in Afghanistan would end.  He was employed in Afghanistan because of his inability to find gainful employment locally to provide for his family, not because he wanted to be there.

	k.  His intention is for the Board to see that he never told his unit to place him in an ING status at any time.  This was done without his acknowledgement or consent.  He was reassured multiple times that the issue of his ING status would be taken care of; however, it was not and has led to jeopardizing his enlistment bonus.  He complied with the agreement to attend quarterly drills as directed by the unit commander and he fulfilled his unit obligations regarding drills and AT.  He attempted to obtain an IST in order to alleviate any hardship caused to the unit and himself with his employment situation and was told it was not necessary.  By no fault of his own, he was improperly placed in an ING status.

13.  National Guard Regulation 614-1, paragraph 2-1b(5) (Soldiers Authorized to Transfer from Active Status to the ING), states that Soldiers in active status may be transferred to the ING by The Adjutants General (TAG) without a request from the Soldier for unsatisfactory participation (unexcused absences) as defined in Army Regulation 135-91, section III, chapter 4.

14.  National Guard Regulation 614-1, paragraph 2-21 (Suspension and Reinstatement of the SRIP), states that Soldiers who remain in the ING for more than 1 year will have their participation in the SRIP terminated and may be subject to recoupment of incentives previously received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the evidence shows he was placed in the ING from 17 October 2007 to 16 October 2008.  Although he contends he did not request to be placed in the ING a second time, the evidence shows he was transferred to the ING effective 1 October 2009 per his request.

2.  He was a full-time contractor working in Afghanistan and was not able to participate in training or drill assemblies with his unit due to his employment and location.  The governing regulation states employment conflicts are not normally considered a valid reason for absence from training.

3.  His employment situation did not change and he was ultimately transferred to the USAR IRR per his request.

4.  It appears that his reenlistment bonus was properly terminated because he failed to extend his enlistment for time served in the ING within 30 days after returning to his unit in October 2008.

5.  Based on the foregoing, there is insufficient evidence on which to grant the relief requested.

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 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)                                         AR20130001754



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ABCMR Record of Proceedings (cont)                                         AR20130001754



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