IN THE CASE OF:	  

		BOARD DATE:	 18 June 2014 

		DOCKET NUMBER:  AR20130016019 


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, in effect, cancellation of the recoupment action pertaining to his Reenlistment/Extension Bonus (REB).

2.  He states: 

* When the economy went into a recession he accepted employment in Afghanistan as a civilian contractor
* On 24 October 2009, during the first 6 months in Afghanistan, he was informed that paperwork was submitted to transfer him to the Inactive National Guard (ING)
* The transfer was done without his consent
* He contacted the unit and explained that he could not go into the ING status for a second time, but he was informed that the transfer had already been made
* While on leave from Afghanistan in December 2009, he spoke with the unit commander and was assured that he could continue quarterly drills
* In March 2009, he was informed that he needed to submit paperwork to remove himself from the ING which he believed had been taken care of
* By the time he submitted the paperwork, the bonus was in default
* He was later denied to drill quarterly by the new commander and his only option was to transfer to the Individual Ready Reserve (IRR)
* On 26 November 2012, he was notified of the requirement to repay his REB

3.  The applicant provides his self-authored statement.
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.  After having prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Army National Guard (ARNG) on 20 September 2001.

3.  The 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) REB Addendum - ARNG)) shows that in 2006, he reenlisted in the ARNG for a period of 6 years and an REB in the amount of $15,000.00 under the Selected Reserve Incentive Program (SRIP).  His NGB Form 600-7-3-R-E states in:

   a.  Section IV (Suspension), "I understand I will be suspended from bonus eligibility if I enter a period of non-availability (placement in the ING)."  The maximum periods of non-availability are 1 year for personal reason and/or
3 years for missionary obligations.

   b.  Section V (Termination) of his NGB Form 600-7-3-R-E 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
* Exceed the maximum time in the ING; recoupment is required from the date of transfer into the ING"

4.  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.  

5.  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.

6.  Orders 070-015, dated 11 March 2010, show he was released from the 19th Special Forces Group and transferred to the ING for a period of 6 months effective 1 October 2009.  The purpose was listed as "Individual Request."

7.  Orders 145-002, dated 25 May 2010, show he was released from the ING and transferred to the 197th Special Troops Company, effective 1 January 2010, which were later amended to 4 February 2010.  

8.  His record is void of any orders or evidence that show he executed an extension of his enlistment within 30 days of being released from ING status.

9.  Orders 284-004, dated 10 October 2012, show he was honorably discharged from the ARNG and assigned to the IRR effective 31 July 2012.  These orders also show his SRIP was terminated with recoupment in the amount of $9,791.67.

10.  On 28 October 2013, he was honorably discharged from the USAR.

11.  During the processing of this case, an advisory opinion was obtained from the NGB, Chief Personnel Policy Division who recommended disapproval of the applicant's request for cancellation of his REB.  The representative quoted Annex R, Section IV of his NGB Form 600-7-3-R-E and stated that if the Soldier entered into a period of non-availability for one year for personal reasons, recoupment is required from the date of transfer into the ING.  She stated that Army Regulation 135-91 (ARNG and USAR – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states the general officer commander for USAR or the State Adjutant General for the ARNG of the United States Soldiers will decide whether to retain or remove the Soldier from the unit.  While awaiting this decision, the Soldier is required to participate.  She further states:

* The applicant's initial extension for the $15,000.00 REB was executed on 30 May 2006
* His expiration term of service (ETS) was 19 September 2006
* His REB contract start date was 20 September 2006 for 6 years with an ETS date of 19 September 2012
* He entered the ING on 17 October 2007 due to work conflict and returned to an active status on 16 October 2008
* He extended his ETS until 19 September 2013

* He returned to the ING on 1 October 2009 and remained there until 
4 February 2010
* He failed to execute an extension within 30 days of returning to active duty
* He completed an extension on 4 May 2010 for 4 months and 4 days and his ETS was extended to 23 January 2014
* He was discharged on 31 July 2012 to the IRR
* Since he did not complete his term of service, his recoupment amount is $3,749.94

12.  On 6 March 2014, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal, but he failed to respond.

13.  Army Regulation 135-91, paragraph 4-10b, states that 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted for an REB in the amount of $15,000.00 for 6 years with a start date of 20 September 2006.  However, on 17 October 2007, he was transferred to the ING due to accepting a full-time contractor position in Afghanistan.  He remained in that status until 16 October 2008.  He properly extended his enlistment for 1 year within 30 days of returning to an active status.

2.  The evidence of record further shows that on 1 October 2009 he returned to an ING status per "individual request" and remained in that status until 
4 February 2010.  There is no evidence and he did not provide any to show that he executed an extension within 30 days of returning to active duty.

3.  His bonus addendum clearly identified the circumstances that would result in bonus termination with recoupment.  He signed the addendum stating he understood that if he failed to extend his enlistment for time served in the ING within 30 days after returning to his unit, recoupment was required from the effective date of transfer to the ING.

4.  There is no evidence and he did not provide any to show he executed an extension within 30 days from being released from ING status. 

5.  In view of the foregoing, there is an insufficient basis to grant the requested relief.

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)                                         AR20130016019





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ABCMR Record of Proceedings (cont)                                         AR20130016019



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