IN THE CASE OF:  	  

		BOARD DATE:  30 June 2015	  

		DOCKET NUMBER:  AR20140017645 


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 an exception to policy (ETP) to retain his $15,000 Reenlistment/Extension Bonus (REB).

2.  The applicant states 6 weeks after his return from Iraq in 2007, he was granted custody of his two children.  He finalized his divorce in 2008 and he was granted full custody.  He became non-deployable and signed papers to enter the Inactive National Guard (ING) for 2 years.  During this period he contacted the Judge Advocate General's Corps (JAG) for Iowa.  He had one face to face discussion with a JAG officer and never heard from him again.  The JAG officer stated he should submit a written request to his battalion for a hardship discharge due to being a single parent.

3.  He submitted a letter for a hardship discharge in late 2008 with photos and articles supporting his reasons.  His case received much publicity throughout Iowa and the rest of the country, including the Associated Press.  Due to the nature of how his children had been treated while he was deployed to Iraq, he could not in good conscience leave them to others’ care for an extended period of time.  Over the course of the following couple of years he heard very little from the Iowa Army National Guard (IAARNG).  He would contact his battalion and ask how things were going and he was always told that the paperwork was being processed.

4.  In 2011, after the unit had returned from Afghanistan, he was able to contact the Charles City Armory administrative noncommissioned officer (NCO).  The NCO called battalion and discovered that the paperwork had been lost at either State or at the Pentagon.  He was told to come in and sign new papers.  After a month of waiting he was instructed to come in and sign papers to reenter the IAARNG for 24 hours, then he would be discharged the next day.  He did so and assumed that would be the extent of his connection with the IAARNG.

5.  In April of 2012, he received in the mail his IAARNG discharge document and his Honorable Discharge Certificate.  In August of 2012 he received a statement from the Defense Finance and Accounting Service (DFAS) that he owed $11,000 in bonus repayment.  He contacted DFAS and they said they had nothing to discuss unless he wanted to make a full payment.  He asked if payments were an option and they said no.  After a month, he had the bonus show up on his credit report with an additional $3,000 plus in fees.

6.  In November 2012 the Internal Revenue Service (IRS) sent him a statement of owing the Federal government over $14,000 in repayment and that he needed to contact them to set up a repayment plan or they would garnish his wages.  Ultimately the IRS told him he could pay $250 per month and his first payment was due on 16 January 2013.  He agreed to these terms.

7.  He states that Department of Defense (DOD) Financial Management Regulation (FMR) 7000.14, section 0905 states that a hardship and dependency separation are considered involuntary and do not require recoupment of unearned portions of a bonus.

8.  The applicant provides:

* his National Guard Bureau (NGB) 22, with an effective date of 
20 December 2011
* a letter, dated 22 November 2012, from the Department of the Treasury, Financial Management Service (Treasury)
* a letter, dated 8 February 2013, from Headquarters, Iowa National Guard to his Congressional representative
* a letter, dated 14 March 2014, from DFAS to his Congressional representative
* a memorandum, dated 19 August 2014, from NGB to the IAARNG
* three inquiries from his Congressional representative 
* a letter, dated 9 January 2014, from the Army Board for Correction of Military Records (ABCMR) 
* a letter, dated 22 July 2014, from the Army Review Boards Agency (ARBA)
* excerpts from the DOD, FMR 7000.14, Volume 7A, chapters 2 and 9


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.  He previously completed 1 year, 1 month, and 21 days of active service in the U.S. Navy Reserve.  On 29 September 1997, he enlisted in the IAARNG and served continuously until the date of his discharge.

3.  On 5 October 2005, he was ordered to active duty in support of Operation Iraqi Freedom.  He was deployed to Iraq from 30 March 2006 to 15 July 2007.  

4.  On 3 August 2006, he extended his enlistment for 6 years.  His DA Form 4836 shows his current expiration of term of service (ETS) as 2 August 2007 and his new ETS as 2 August 2013.

5.  On 3 August 2006, he signed an Annex R to DD Form 4 (Enlistment/Reenlistment Document) or DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) Reenlistment/Extension Bonus Addendum, Army National Guard of the United States.

	a.  Paragraph 1c of Section III - Bonus Amount and Payments states for a 
6-year reenlistment/extension he would receive a total bonus of $15,000.  His lump sum payment of $15,000 would be processed on the date that his reenlistment or extension contract takes effect (1 day after current ETS).

	b.  Paragraph 1 of Section IV - Suspension states he understood he would be suspended from bonus eligibility if he entered a period of non-availability (placement in the ING).  Maximum periods of non-availability were:

* 1 year for personal reasons
* 3 years for missionary obligations

	c.  Paragraph 4 of Section V - Termination states he understood he would be terminated from bonus eligibility with recoupment if he exceeded the maximum time in the ING.  Recoupment was required from the date of transfer into the ING.

6.  On 26 August 2007, he was released from active duty and returned to the IAARNG by reason of him completing his required active service.

7.  On 1 April 2009, he was transferred to the ING by reason of "other good and sufficient reason."  The period reads "28 February 2010 unless sooner released."

8.  On 24 February 2010, his orders to the ING were modified to read: 
"2 August 2013 unless sooner released."

9.  On 20 December 2011, he was discharged from the IAARNG by reason of "Dependency or hardship (includes parenthood and sole parents) affecting the Soldier's immediate family."

10.  In a letter, dated 22 November 2012, Treasury stated that despite their previous request he had failed to pay his debt in full or otherwise make arrangements to resolve his debt.  If he did not pay his debt or take other action the Treasury was authorized to issue a wage garnishment order to collect the debt.

11.  A letter, dated 8 February 2013, from the Adjutant General, IAARNG, explained to the applicant's Congressional representative that the applicant received a $15,000 REB for a 6-year reenlistment/extension which he did not complete because he exceeded the maximum time in the ING.  He also referred to DOD FMR, page 9-20, paragraph 0905, dated March 2006 (in effect at the time the applicant signed his contract) that stated: "hardship and dependency separations are considered involuntary and do not require recoupment of unearned portions of bonus."  He referred the applicant to the ABCMR.

12.  In a letter, dated 14 March 2014, to the applicant's Congressional representative, DFAS stated they reviewed the applicant's account and determined his debt, in the amount of $11,041.67, remained valid.  The applicant's debt is the result of the recovery of the unearned portion of his ARNG REB.  He was aware of his REB indebtedness and the facts pertinent to its creation.

13.  A memorandum, dated 19 August 2014, from NGB denied his request for an ETP to receive the $15,000 REB for the discrepancy of exceeding the authorized period on non-availability while serving in the ING.
	a.  The applicant was placed in the ING effective 1 April 2009 for "other good and sufficient reason."  He could only be in the ING for 1 year for personal reasons.  He must return to an active drilling status and extend for the period of non-availability in order to retain the incentive.

	b.  He did not return to an active drilling status within the proper authorized period.  The IAARNG terminated the REB incentive with recoupment.  The termination and recoupment action was processed prior to the applicant being discharged from the IAARNG; therefore, the reason for his discharge was not involved in his termination nor did his ING order reflect any reason of hardship.

14.  National Guard Regulation 614-1 (Inactive Army National Guard) prescribes rules for use of the ING, enlistment into the ING as part of the Recruit Force Pool (RFP), transfer between active status and the ING, accounting for personnel in the ING, restrictions on Soldiers while assigned to the ING, reporting, annual muster requirements, entitlements, responsibilities, and describes the effect of a mobilization, call or order to active duty on Soldiers in the ING.

	a.  Paragraph 2-4 (Time limits on assignment to the ING) states:

		(1)  Soldiers who have a remaining active status obligation and who are expected to return to active status may transfer to the ING for a period of one year or less. 

		(2)  Temporary assignment to the ING for a period of up to three years is permissible for the purposes of completing religious missionary programs. 

		(3)  Soldiers who leave active status with or without a remaining military service obligation and who are eligible and desire to maintain a connection with the ARNG may transfer to the ING.  Provided the Soldier is otherwise qualified, continues to extend their enlistment in the ING, remains a mobilization asset, and complies with the requirements of ING membership, a Soldier may remain in the ING until attaining the mandatory retirement age.  There is no restriction on the number of years that a Soldier may remain in the ING. 

	b.  Paragraph 2-21 (Suspension and reinstatement of the Selected Reserve Incentive Program) states:

		(1)  Suspension/termination for Selected Reserve Incentive Program (SRIP).  Soldiers temporarily transferred to the ING will be suspended from the SRIP while in the ING.  Soldiers who remain in the ING for more than 1 year will have their participation in the SRIP terminated and may be subject to recoupment of incentives previously received.
		(2)  Soldiers transferred to the ING who transfer to active status and fill an existing vacancy in the Selected Reserve authorizing the Soldier's grade and MOS in a bonus authorized unit or a bonus authorized MOS may have their previously suspended participation in the SRIP reinstated.  Within 30 days of returning to active status, the Soldier must extend their enlistment or reenlistment agreement for the period of time equal to or greater than the time served in the ING.

15.  DOD FMR 7000.14, Volume 7A provides for repayment of unearned portions of bonuses and other benefits.

	a.  Section 020101 states a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus is entitled to the full amount of the pay or benefit if the member fulfills the condition 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.

	b.  Service regulations shall apply the rules in Table 2-1 for disposition of unearned portions of a bonus.  Table 2-1 states that if a member is under a written agreement for a pay or benefit and is separated from service under a hardship separation then repayment of the unearned portion of the pay or benefit will not be sought.

	c.  Section 090503 lists reasons for recoupment of unearned portion of enlistment, reenlistment, or retention bonuses.  At the end of the list an exception is noted that hardship and dependency separations are considered involuntary for the purposes of this section and do not require recoupment of unearned portions of a bonus.

DISCUSSION AND CONCLUSIONS:

1.  His Annex R and National Guard Regulation 614-1 provided for the termination and recoupment of his REB if he exceeded 1 year in the ING.

2.  The DOD FMR states that when a member is separated under a hardship separation unearned portions of his bonus is not recouped.

3.  The applicant contends that upon his return from Iraq he was granted custody of his children.  He finalized his divorce in 2008 and he was granted full custody. In late 2008 he submitted a letter for a hardship discharge.  He had little contact with his unit but was always told his paperwork was being processed.  In 2011, after the unit returned from Afghanistan, he was able to contact the administrative NCO who told him his request for a hardship discharge had been lost.  He resubmitted his request and in April of 2012 he received his NGB 22 and discharge certificate.  

4.  On 1 April 2009, the applicant was transferred to the ING after he had submitted his request for a hardship discharge.  He exceeded 1 year in the ING on 2 April 2010.  On 20 December 2011, he was discharged by reason of "Dependency or hardship (includes parenthood and sole parents) affecting the Soldier's immediate family."

5.  It appears his request for a hardship discharge was delayed due to administrative error by his unit.  If processed in a timely manner there was sufficient time for the processing of his request before he exceeded 1 year in the ING.  It would be unfair to penalize the applicant due to administrative error on the part of his unit.

6.  It would be equitable to grant an ETP to allow the applicant to retain his $15,000 REB.

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 granting an ETP and allowing him to retain his $15,000 REB. 


      _______ _   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)                                         AR20140017645



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ABCMR Record of Proceedings (cont)                                         AR20140017645



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