BOARD DATE: 20 February 2014
DOCKET NUMBER: AR20130009888
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 termination of recoupment of his reenlistment bonus.
2. The applicant states, in effect, that he extended his enlistment for 6 years on 8 February 2007 for a $15,000 reenlistment bonus and on 2 June 2010 he transferred to the inactive guard (ING). He goes on to state that the military tried to transfer him out of the ING but could not do so because he was in the Medical Evaluation Board (MEB) process. As a result he has been denied his payment of his bonus and recoupment action has been initiated in the amount of $8,750.00.
3. The applicant provides copies of letters from the applicant, line of duty determination and documents from the Social Security Administration.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was serving in the Kentucky Army National Guard (KYARNG) in the pay grade of E-6 when he extended his enlistment on 8 February 2007 for a period of 6 years and a $15,000 reenlistment bonus. He acknowledged that he understood that his bonus would be recouped if he separated from the Army National Guard for any reason unless due to health, injury, illness or other impairments not the result of his own misconduct.
3. He was transferred to the ING on 2 June 2010 for personal reasons and remained in the ING until 29 June 2012, which exceeded the 1 year limit for personal reasons and caused action to be initiated to terminate and recoup his bonus.
4. On 13 August 2011 he was found medically disqualified for duty and was recommended for discharge from the KYARNG. In 2012 he was found unfit for duty.
5. In December 2012, a request for an exception to policy was submitted and was subsequently denied by the National Guard Bureau (NGB).
6. The applicant was honorably discharged from the KYARNG on 9 October 2013 due to medical, Physical and Mental Conditions.
7. In the processing of this case a staff advisory opinion was obtained from the NGB which opines that based on the documentation provided, the applicants request for an exception to policy has been reevaluated and approved and recoupment will not be sought and any unpaid portion of the bonus will be paid. Officials at the NGB go on to state that in accordance with Department of Defense Instruction 1205.21 recoupment is not required when discharge is due to an injury, illness or other impairment not the result of the members own misconduct. Additionally, Department of Defense Financial Management Regulation, Volume 7, chapter 2, Table 1, Rule 2 provides that if a member under a written agreement incurs an injury or illness through no misconduct of the member, that precludes the member from fulfilling the service conditions specified in his written agreement, and the member is separated or retired for disability, repayment of the unearned portion of the pay will not be sought and is such separation or retirement for a disability was incurred in the line of duty in a designated combat zone, any unpaid portion of the bonus will be paid to the member upon separation. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted and appear to have merit. His bonus was terminated and recoupment action was improperly initiated against the applicant because his condition was through no fault of his own.
2. Additionally, officials at the NGB opine that recoupment action should be stopped and that he should be paid the remainder of his bonus given the circumstances of his case.
3. The Board concurs with the opinion of NGB officials and supports the opinion that recoupment action be stopped and that the applicant be paid the remainder of his bonus.
BOARD VOTE:
__x______ __x______ __x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and National Guard records of the individual concerned be corrected by terminating recoupment action related to his reenlistment bonus and that any unpaid portion of the bonus be paid to the applicant.
_______ _ 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.
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