BOARD DATE:	  30 June 2015

		DOCKET NUMBER:  AR20140017064 


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:

	a.  correction of her records to show she is authorized to retain her Non-Prior Service Enlistment Bonus (NPSEB) offered at the time of her enlistment in the U.S. Army Reserve (USAR) on 28 December 2006; and

	b.  correction of her records to allow her to retain the Student Loan Repayment Program (SLRP) incentive in the amount of $20,000.00; and

	c.  voidance of her reassignment orders to the Individual Ready Reserve (IRR), dated 31 October 2011.

2.  The applicant states:

	a.  She was transferred to the IRR which resulted in termination of her NPSEB and SLRP.

	b.  She was erroneously transferred to the IRR on 30 November 2011.

	c.  She was pending a physical evaluation board (PEB) when she was transferred.  The unit she was assigned to was inactivated and no surrounding units would accept her due to her medical situation.



3.  The applicant provides:

* request for exception to policy (ETP)
* letters from her current company commander, battalion commander, and group commander
* ETP denial memorandum
* enlistment contract
* Selected Reserve Incentive Program – Enlistment Bonus Addendum
* SLRP Addendum
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 28 September 2007 and 30 November 2009
* Leave and Earnings Statement (LES) for the period 1-31 October 2013
* SLRP printout
* 877th Quartermaster Company (Petroleum) Unit Manning Report, dated 4 March 2014
* reassignment orders, dated 31 October 2011
* Headquarters and Headquarters Detachment, 381st Adjutant General Replacement Battalion, Monthly News Letter:  July Issue, dated 31 July 2011
* DA Form 2A (Personnel Qualification Record), dated 28 June 2011
* DA Forms 3349 (Physical Profile), dated 19 July 2010, 28 September 2011, and 30 July 2012
* two email messages, dated 29 September 2011 and 1 August 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 28 December 2006 for a period of 8 years and assignment to the 800th Replacement Company, Tulsa, OK, in military occupational specialty 42A (human resources specialist).

2.  Her Selected Reserve Incentive Program – Enlistment Bonus Addendum, dated 28 December 2006, shows she enlisted for the NPSEB in the amount of $13,000.00.  Section VII (Termination) states, "My entitlement to the enlistment bonus will be terminated should any of the following conditions occur before the fulfillment of my enlistment agreement and obligation.  Should I be separated from my status as an enlisted soldier assigned to a unit of the Selected Reserve, for any reason, except when separated for an authorized period of nonavailability or entry on AD [active duty] or FTNGD [Full-Time National Guard Duty] in an AGR [Active Guard Reserve] status.  This could result in recoupment action as explained in Section VII below unless the separation is due to unit inactivation, reorganization, conversion, relocation, reduction of overstrength, or reduction in force."

3.  Her SLRP Addendum, dated 28 December 2006, shows she enlisted for the SLRP in the amount of $20,000.00.  Section VII (Termination) of this addendum states, "I further understand that the terms of this agreement and my entitlement to loan repayment under the SLRP will be terminated if I am separated from my enlisted status in the Selected Reserve, for any reason, except for an authorized period of nonavailability."

4.  She provided a DA Form 3349, dated 19 July 2010, which shows she was issued a permanent physical profile rating of 3 in the lower extremities (L) factor for low back pain.

5.  She provided a DA Form 2A, dated 28 June 2011, which shows she was undergoing a medical evaluation board (MEB)/PEB.

6.  She provided a monthly news letter, dated 31 July 2011, that states her unit was scheduled for inactivation.

7.  She provided a DA Form 3349, dated 28 September 2011, which shows she was subsequently issued a permanent physical profile rating of 2 in the L factor for low back pain.

8.  She provided email correspondence from a member of the 4th Expeditionary Sustainment Command, dated 29 September 2011, transmitting her downgraded permanent physical profile wherein he advised her that she would have to transfer to the IRR if she had not found a unit to which to transfer.

9.  Headquarters, 63d Regional Support Command (RSC), Orders 
11-304-00022, dated 31 October 2011, show she was reassigned from the 800th Replacement Company, Tulsa, OK, to the USAR Control Group (Reinforcement) (also known as the IRR) effective 30 November 2011 by reason of "MOVED BEYOND RSNBLE [REASONABLE] COMMUTING DISTANCE (CHANGE OF RESIDENCE).  These orders show her home address as Tulsa, OK.

10.  On 23 August 2012, she extended her enlistment for a period of 3 years and 10 months.  On 8 November 2012, she extended her enlistment for a period of 6 months.

11.  U.S. Army Human Resources Command (HRC) Orders R-11-289662, dated 13 November 2012, ordered her to active duty in an Active Guard Reserve (AGR) status for a period of 3 years effective 10 December 2012 with duty in the 877th Quartermaster Company, Albuquerque, NM.  These orders show her home address as Tulsa, OK.

12.  She provided a memorandum from the Commander, 877th Quartermaster Company, dated 23 December 2013, which states:

	a.  He requests reinstatement of all educational benefits and termination of bonus recoupment for the applicant.

	b.  On 30 November 2011, she was transferred to the IRR as her unit was preparing for inactivation.  All Soldiers were advised to find new units or transfer to the IRR.  The applicant was still "red" in medical (meaning flagged pending medical retention classification) and unable to attach to a new unit.  She was undergoing a PEB during the time of this transfer with a PULHES profile status of 113111.

	c.  Her physical profile was downgraded on 22 June 2011, but required two signatures from profiling officers.  Her former commander signed a downgraded physical profile on 28 September 2011 and sent her an email on 29 September 2011 asking if she located a new unit.  He also stated she would have to transfer to the IRR if a new unit was not located.  IRR transfer orders were issued on 31 October 2011.

	d.  The applicant, still "red" in medical after being transferred to the IRR, personally contacted the 63d RSC to get her physical profile downgraded correctly.  On 1 August 2012, an official from the 63d RSC sent her email stating that her physical profile was finally downgraded with two profiling officers' signatures.  At this time, she became "green" in medical and she received an offer to enter the AGR Program.

	e.  Once the applicant received her first LES under AGR orders, she received a bonus recoupment notice.  She also noticed payments for her student loans were terminated and she no longer had her $100.00 Montgomery GI Bill kicker.

	f.  The applicant should not have been transferred to the IRR while still pending medical resolution and as such should not have lost any benefits afforded to her.

13.  She provided memoranda from the Commander, 372d Quartermaster Battalion, dated 9 January 2014, and Commander, 647th Regional Support Group, dated 4 March 2014, which state:

	a.  They concur with the recommendation for reinstatement of the applicant's educational benefits and termination of her bonus recoupment.

	b.  The applicant was transferred to the IRR by her previous command that was preparing for inactivation.

	c.  At the time the applicant was in the process of undergoing a PEB.  She should not have been transferred to the IRR without medical resolution and therefore should not have lost her benefits.

	d.  They reviewed the documents provided to the unit commander and battalion commander in order to support this recommendation.

14.  She was promoted to sergeant/E-5 effective 1 May 2014.

15.  On 28 July 2014, Headquarters, U.S. Army Reserve Command (USARC), disapproved the applicant's request for an ETP to retain her NPSEB.  The USARC stated:

* the applicant enlisted on 28 December 2006 for a $13,000.00 NPSEB
* on 30 November 2011, she was transferred to the USAR Control Group (IRR)
* her bonus was terminated due to violating the conditions of her contract
* the recoupment of NPSEB is justified

16.  Her MEB/PEB proceedings are not available for review.

17.  The U.S. Army Physical Disability Agency has no record of the applicant's entry in the Army Physical Disability Evaluation System (PDES) by reason of an MEB or PEB.

18.  Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), section 0201 (General Provisions), provides that a member of the Uniformed Services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202.

19.  Paragraph 7-4 of Army Regulation 40-501 (Standards of Medical Fitness) states:

	a.  All permanent "3" and "4" profiles for Soldiers on active duty will be reviewed by an MEB physician or physician approval authority.

	b.  If the profile is permanent, the profiling officer must assess if the Soldier meets the medical retention standards of chapter 3.

	c.  Soldiers who have one or more condition(s) that do not meet medical retention standards are referred to an MEB/PEB after attaining the Medical Retention Determination Point.

	d.  Those Soldiers (active duty and USAR/Army National Guard) who meet retention standards but have at least a 3 or 4 PULHES serial will be referred to a Medical Military Occupational Specialty Retention Board (MMRB) unless waived by the MMRB convening authority.

	e.  Permanent profiles may be amended (following the correct procedure) at any time if clinically indicated and will automatically be reviewed and verified by the privileged provider at the time of a Soldier's periodic health assessment or other medical examination.

20.  Paragraph 9-10 of Army Regulation 40-501 states:

	a.  Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged from the USAR.  They will be transferred to the Retired Reserve only if eligible and if they apply for it.

	b.  Reservists who do not meet medical retention standards may request continuance in active USAR status.  In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty.  Reservists with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness.

21.  Paragraph 9-12 of Army Regulation 40-501 states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of Reserve Component Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB liaison officers at the medical treatment facilities.  Once a Soldier requests review of his or her case by a PEB for a fitness determination in writing, the case will be forwarded to the PEB by the USARC RSC or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms:

	a.  The applicant enlisted in the USAR on 28 December 2006 for an NPSEB in the amount of $13,000.00.

	b.  She signed an SLRP Addendum in the amount of $20,000.00 on 28 December 2006.

	c.  Her unit of assignment was pending inactivation.

	d.  She was undergoing an MEB/PEB when she was transferred to the IRR on 30 November 2011.

2.  Headquarters, 63d RSC, Orders 11-304-00022, dated 31 October 2011, reassigned her to the IRR effective 30 November 2011 due to her change of residence by reason of movement beyond a reasonable commuting distance.  However, there is no evidence of record to support this.  Her unit was located in Tulsa, OK, prior to her transfer to the IRR and she resided in Tulsa, OK.  She continued to reside in Tulsa, OK, 1 year after her transfer to the IRR and prior to her AGR assignment in New Mexico.  It appears she was, in fact, transferred to the IRR due to unit inactivation with no follow-on unit assignment due to her unresolved MEB/PEB determination.

3.  In spite of her Reserve unit's pending inactivation, she should not have been reassigned to the IRR while undergoing an MEB/PEB.  Until her medical fitness for retention was determined, it is highly unlikely that she was a viable candidate for acceptance into another Reserve unit.  Further, it is unreasonable to expect a junior enlisted Reserve Soldier with less than 5 years of service to find a unit without professional assistance from her current unit leadership.

4.  Based on the evidence of record, it would be appropriate to correct her records by revoking Headquarters, 63d RSC, Orders 11-304-00022, dated 31 October 2011, which reassigned her to the IRR.

5.  It would also be appropriate to pay her the NPSEB in the amount of $13,000.00 and the SLRP in the amount of $20,000.00 based on her uninterrupted service as a member of the Selected Reserve.

BOARD VOTE:

___X_____  ____X____  _X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  revoking Headquarters, 63d RSC, Orders 11-304-00022, dated 31 October 2011;

	b.  paying her any portion of the NPSEB not already paid up to the amount of $13,000.00; and

	c.  paying her the full SLRP incentive in the amount of $20,000.00.



      ___________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)                                         AR20140017064



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ABCMR Record of Proceedings (cont)                                         AR20140017064



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