IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130005426 


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 to receive a Non-Prior Service Enlistment Bonus (NPSEB) and participation in the Student Loan Repayment Program (SLRP).

2.  The applicant states:

   a.  He made every effort to work with Army personnel to find a solution to his situation; however, he was given unexcused absences while under medical orders not to be present and he received no medical care.

   b.  While training he injured his right shoulder.  He received a permanent profile and was recommended for a Medical Evaluation Board (MEB).  He was sent to Fort Knox, KY for the Medical Retention Program (MRP).  He was released from the MRP via an MRP declination to his unit in San Antonio, TX; however, he was sent to his home of record in Fort Worth, TX. 
   
   c.  He received unexcused absences while waiting for the MEB (learning later that a request for an MEB was never filed), and he was sent for multiple physicals which were never followed up by the military.
   
   d.  He attended drill only to be told he could not be present due to his condition and the pending MEB.  When he did not attend drill he was told he had to be present and he was advised he was receiving unexcused absences for not attending.
   
   e.  After contacting a Member of Congress the MEB packet was set in motion and he was advised to attend drill while the packet was being put together, but during Soldier Readiness Processing he was told he could not be at drill until the MEB had been completed.  He filled out a packet for an MEB on three occasions.  Each time it was not followed through.  Throughout the process he did not receive medical care from the military and the Department of Veterans Affairs was unable to help him due to the pending MEB/Physical Evaluation Board (PEB).  

3.  The applicant provides:

* a self-authored statement with a timeline of events
* DA Form 3349 (Physical Profile)
* two memoranda
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* U.S. Army Human Resources Command (AHRC) Form 4123-4 (Medical Information Checklist)
* FCC507 (Functional Capacity Certificate Form 507)
* a letter
* a Notice of Intent to Initiate Administrative Wage Garnishment Proceedings

CONSIDERATION OF EVIDENCE:

1.  On 12 April 2005, the applicant enlisted in the U.S. Army Reserve (USAR) in the rank/grade of private first class/E-3 for a period of 8 years.

2.  In connection with this enlistment, he completed a Selected Reserve Incentive Program (SRIP) – Enlistment Bonus Addendum that shows he was authorized a $10,000.00 NPSEB and an SLRP Addendum which shows his entitlement under the SLRP.  

3.  Section VII – (Termination) of his Selected Reserve Incentive Program – Enlistment Bonus Addendum states, "entitlement to the enlistment bonus will be terminated should I become an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  This could result in a recoupment action as explained in section VIII."

4.  Section VII – (Termination) of his SLRP Addendum states, "I understand that the terms of this addendum will remain in force as long as I continue to participate satisfactorily under a contractual agreement as a member of the Selective Reserve.  I further understand that the terms of this agreement and my entitlement to loan repayment under the SLRP will be terminated should I become an unsatisfactory participant per Army Regulation 135-91."

5.  On 12 August 2005, the applicant was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

6.  The applicant provides and his record contains:

   a.  DA Form 3349 and supporting documents, dated 1 August 2006, which show he received a permanent profile and was deemed not fit for duty after being diagnosed with multidirectional shoulder instability by an orthopedic surgeon.  The surgeon noted that the applicant needed an MEB and that one had been initiated.

   b.  DA Form 2173, dated 24 August 2006, which shows the applicant dislocated his right shoulder in June 2006 while performing low crawl maneuvers on the buddy live fire range.  The injury was considered to have been incurred in the line of duty (LOD) while the applicant was on active duty.

   c.  AHRC Form 4123-4, dated 27 August 2008, which shows the applicant was required to have an evaluation completed by an orthopedic surgeon and that the applicant was to complete an FCC507 for the physician.

   d.  FCC507, dated 2 September 2008, which shows an orthopedic surgeon diagnosed him with recurrent dislocation of the right shoulder – pending surgery.  The applicant's limitations were believed to be temporary with an expected duration of 6 months.

7.  The available evidence shows the applicant was honorably discharged from the USAR on 20 December 2011.

8.  During the processing of this case, an advisory opinion was obtained from the Deputy Director, Deputy Chief of Staff, G-1 (Operations), Headquarters, U.S. Army Reserve Command (USARC), who states:

   a.  The applicant is currently not eligible to receive an NPSEB.  He further notes the applicant enlisted in the USAR on 12 April 2005 for a $10,000.00 NPSEB, $350.00 MGIB Kicker, and $20,000.00 SLRP in MOS 88M.  The applicant accumulated over nine unexcused absences and was classified as an unsatisfactory participant.  Army policy requires termination and recoupment of the NPSEB if during the period of the contract the Soldier becomes an unsatisfactory participant.  If the applicant believes he received unexcused absences in error, he must initiate an inquiry through his former unit.
   b.  USARC recommends the Board disapprove the applicant's request and direct the applicant's unit to reinstate him in the USAR.  Their research revealed the applicant's former unit did not adhere to the directives given by the Deputy Chief of Staff, G-1 and did not request an MEB once the applicant was rendered unfit for duty prior to his separation action.  If it is found the applicant erroneously received the unexcused absences during this period, the Deputy Chief of Staff, G-1, recommends reinstatement of the NPSEB.

9.  On 7 November 2013, the applicant requested to be reinstated in the USAR for the purpose of processing through an MEB.

10.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard and the USAR incentive programs.  Chapter 2 contains guidance on the SRIP, USAR NPSEB.  Paragraph 2-6 contains guidance on termination conditions and states enlistment bonus entitlement will stop if a Soldier becomes an unsatisfactory participant under Army Regulation 135-91.  Chapter 5 contains guidance on the SLRP.  Paragraph 5-1.6c contains guidance on termination conditions and states entitlement to the SLRP will stop if a Soldier becomes an unsatisfactory participant under Army Regulation 135-91.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation        40-501 (Medical Fitness Standards for Retention and Separation Including Retirement), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive his NPSEB and participation in the SLRP as identified in his original contract has been carefully examined.

2.  The applicant accumulated over nine unexcused absences and was classified as an unsatisfactory participant.  Army policy requires termination and recoupment of an NPSEB and participation in the SLRP if during the period of the contract the Soldier becomes an unsatisfactory participant.  If the applicant believes he received unexcused absences in error, he must initiate an inquiry through his former unit.  If it is found the applicant erroneously received the unexcused absences during this period, it is possible the applicant's NPSEB and SLRP may be reinstated.

3.  The evidence of record shows the applicant suffered an injury LOD in 2006.  After an evaluation by competent medical authority he received a permanent profile and was proclaimed unfit for duty.  While it is apparent an MEB should have been initiated, there is insufficient evidence to show the applicant was processed as required.

4.  Research revealed the applicant’s former unit did not adhere to the directives given by the Deputy Chief of Staff, G-1 and did not request an MEB once the applicant was rendered unfit for duty prior to separation.  On 7 November 2013, the applicant informed the Board staff he was not averse to being reinstated in the USAR for the purpose of processing through an MEB.

5.  In view of the foregoing, there is currently insufficient evidence to support the applicant's request.  However, as recommended by the Deputy Director, Deputy Chief of Staff, G-1 (Operations), Headquarters, USARC, and with the concurrence of the applicant, he should be reinstated in the USAR for the purpose of processing through an MEB.  

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 voiding his 20 December 2011 discharge and reinstating the applicant in the USAR for the purpose of processing through an MEB.  




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 receiving an NPSEB and participation in the SLRP as identified in his original contract at this time.




      _______ _  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)                                         AR20120011537



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ABCMR Record of Proceedings (cont)                                         AR20130005426



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