IN THE CASE OF:	   

		BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20140001023 


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 payment of the Foreign Language Proficiency Bonus (FLPB) for the periods 4 June 2008 to 3 June 2009, 4 June 2009 to 3 June 2010, and 4 June 2010 to 3 June 2011. 

2.  The applicant states the absence of FLPB orders for the requested periods prevented payment of the incentive. 

3.  The applicant provides:

* FLPB Award Checklist
* Memorandum from his commander
* DA Form 4187 (Personnel Action)
* DA Form 330 (Language Proficiency Questionnaire)
* Personnel Qualification Record
* Unit Manning Report
* Orders 255-80, (2007 FLPB), Orders 129-111 (2007 mobilization), Orders A-05-808381 (2008 active duty), Orders 149-001 (2008 attachment), Orders A-04-912152 (2009 active duty), and Orders A-04-010723 (2010 active duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) under the Army Civilian Acquired Skills Program for military occupational specialty (MOS) 09L (Translator Aide) on 27 June 2006.  
2.  He was administered a foreign language Oral Proficiency Interview (OPI) in Arabic-Iraqi (DG) language by a Test Control Officer of the Defense Language Institute (DLI) Foreign Language Center on 5 June 2006 and he received a speaking proficiency level of 3+.

3.  He entered active duty on 18 July 2006.  He appears to have completed training at Fort Sill, OK.   

4.  On 2 May 2007, the U.S. Army Human Resources Command (HRC) published Orders M-05-700893 ordering him to active duty as a member of Task Force Marshall, Fort Jackson, SC, from 24 May 2007 to 22 May 2008 with a tentative assignment to the Multi-National Force-Iraq (MNF-I). 

5.  On 9 May 2007, Headquarters, U.S. Army Training Center, Fort Jackson, SC, published Orders 129-111 deploying him to Iraq with a proceed date of 9 June 2007, a report date of 24 June 2007, and assignment to the MNF-I. 

6.  On 12 September 2007, Headquarters, U.S. Army Training Center, Fort Jackson, SC, published Orders 255-80 awarding the applicant FLPB/Payment List A ($400/DG) from 24 June 2007 to 4 June 2008. 

7.  On 5 May 2008, HRC published Orders A-05-808381 ordering him to active duty from 24 May 2008 to 28 May 2009 with assignment to the MNF-I. 

8.  On 27 April 2009, HRC published Orders A-04-912152 ordering him to active duty from 29 May 2009 to 28 May 2010 with assignment to the MNF-I. 

9.  On 2 April 2010, HRC published Orders A-04-010723 ordering him to active duty from 29 May 2010 to 28 May 2011 with assignment to the U.S. Forces-Iraq (USF-I). 

10.  He was honorably released from active duty on 28 May 2011.  He completed 4 years, 10 months, and 11 days of active service.  His DD Form 214 also shows he served in Iraq from 7 July 2007 to 21 November 2010 (3 years, 4 months, and 15 days of service in Iraq). 

11.  On 28 June 2011, Headquarters, 99th Regional Support Command, Fort Dix, NJ, published Orders 11-179-00042 authorizing/awarding the applicant FLPB/Payment List A ($300/DG) from 25 May 2011 to 24 May 2012.

12.  On 21 November 2012, Headquarters, 99th Regional Support Command, Fort Dix, NJ, published Orders 12-326-00031 authorizing/awarding the applicant FLPB/Payment List A ($400/DG) from 1 November 2012 to 31 October 2013. 
13.  On 18 September 2013, his immediate commander (751st/752nd Combat Support (Interpreter/Translator)) Platoons, Fort Belvoir, VA, submitted a DA Form 4187 with an endorsement requesting recertification of OPI and indicated the applicant was entitled to FLPB from 4 June 2009 to 3 June 2010; but he did not receive the pay due to deficiencies and fluctuations in full-time staffing of the office and mobilization tempo.  

14.  An advisory opinion was received from HRC on 5 March 2014 in the processing of this case.  The Chief, Incentive Pay Branch stated the applicant's request for retroactive FLPB from 4 June 2008 to 3 June 2009, 4 June 2009 to 
3 June 1010, and 4 June 2010 to 3 June 2011 was disapproved. 

	a.  The applicant has a language dependent MOS, 09L, with a Control Language (CLANG) of Arabic-Iraqi (Gulf) (DG).  He originally tested on 5 June 2006 using the OPI and his proficiency level was 3+.  His test expired on 4 June 2007. 

	b.  His DD Form 214 indicates he served in Iraq from 7 July 2007 to 21 November 2010.  At the time he tested in the foreign language, Army Regulation 611-6 (Army Language Program), dated 16 February 1996, and Military Personnel Message (MILPER) Number 04-185 (Foreign Language Proficiency Pay (FLPP)), dated 24 June 2004, were the regulatory guidance which specifically required annual recertification for foreign language proficiency pay.  The applicant took his test on 5 June 2006 which expired/terminated a year later, some 32 days prior to his deployment date.

	c.  Orders Number 255-80, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, on 12 September 2007, are invalid due to his most OPI having been already terminated on the effective date of the orders.

15.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

16.  MILPER Message 04-185 made changes to and clarified payment of FLPB for 09L Soldiers.  It states: 

	a.  All 09Ls will be MOS dependent Soldiers in the assignment category.  They are eligible for the FLPP at their appropriate OPI speaking score for their primary/target language.  The speaking score alone will be used to determine pay entitlement.  

	b.  The FLPP List, effective 23 April 2004, included Arabic-Iraqi-Gulf (DG).  Annual certification is a requirement for FLPP.  If no Defense Language Proficiency Test (DLPT) is available, a telephonic OPI is used to determine FLPP.  FLPP eligibility is determined on the basis of speaking proficiency only.  Test Control Officers can arrange for telephonic OPI testing by coordinating with the DLI.  

	c.  Soldiers who are due annual recertification but are assigned in a foreign country where testing facilities are not available can have their commander/supervisor recertify their current proficiency in lieu of the DLPT and document the certification on a DA Form 4187 which is then forwarded to the appropriate record custodian for publication of the orders authorizing the pay. Soldiers must be recertified using DLPT/OPI as soon as practicable within 
60 days after return to permanent duty station or 180 days if Soldier was assigned to duty in connection with contingency operations.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was administered a foreign language OPI in Arabic-Iraqi (DG) language by a Test Control Officer at the DLI Foreign Language Center on
5 June 2006 and he received a speaking proficiency level of 3+.  For the purpose of entitlement for the FLPB, his test results expired a year later and he would have needed to recertify on 5 June 2007.  He did not. 

2.  He deployed to Iraq on 7 July 2007, over a month after his test results had expired.  At that time, MILPER Message 04-185 required annual recertification for OPI in order for a Soldier in MOS 09L to receive the special pay.  Since he did not recertify, from a regulatory standpoint, he was not entitled to the pay.  Thus, the advisory opinion rendered by HRC denying him the pay is reasonable based on the regulatory guidance. 

3.  However, from an equity standpoint, he should receive full relief.  

	a.  Since 09Ls were a controlled group of Soldiers, a Test Control Officer should have been the point of contact to alert Soldiers in need of recertification.  It is reasonable to presume that had the applicant been counseled properly about the need to recertify or risk losing his special pay he would have done so.  It is also reasonable to presume that if he had interviewed again in June 2007, he would have scored a similar score as he did the year before. 

	b.  The applicant deployed to Iraq on 7 July 2007 and while it is true he did so over a month after his OPI results had expired, he served in Iraq as a Translator 

Aide for 3 years, 4 months, and 15 days.  Had he not been proficient in the very foreign language he was used for, there would not have been a reason to deploy him - as a linguist - in the first place.  As such, it is very reasonable to presume that had his commander/supervisor been aware of the requirement to submit a DA Form 4187 certifying his proficiency in the foreign language, the supervisor/commander would have done so.  

	c.  The orders published by Headquarters, U.S. Army Training Center, Fort Jackson, SC on 12 September 2007 would not have been published if the applicant was not proficient in the foreign language he enlisted for, deployed for and served in.  Suggesting these orders are invalid some 7 years after their publication is inequitable and against good conscience.  It would also be contrary to the best interests of the Army and the Soldier.  

	d.  Therefore, notwithstanding the HRC advisory opinion, as a matter of equity and in line with the intent of creating the 09L program, the applicant should be entitled to full relief.  His servicing Regional Readiness Command should publish orders authorizing him FLPB from 4 June 2008 to 3 June 2011 and he should receive the appropriate FLPB rate for each year based on his proficiency in the foreign language DG with a score of 3+. 

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 records of the individual concerned be corrected by 
showing the applicant was authorized Foreign Language Proficiency Bonus at 

the appropriate annual rate for the periods 4 June 2008 to 3 June 2009, 4 June 2009 to 3 June 2010, and 4 June 2010 to 3 June 2011.



      _______ _   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)                                         AR20140001023



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140001023



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1