BOARD DATE:	    1 October 2015

		DOCKET NUMBER:  AR20150002074 


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 that the portion of a Non-Prior Service Enlistment Bonus (NPSEB) for which she has already been paid not be recouped.

2.  The applicant states, in effect:

* she hurt her knee and this caused her to fail two record Army Physical Fitness Tests (APFT)
* she consulted her physician and, after being referred to a specialist, she learned what caused her to fail the APFT
* she participated in physical therapy and was given a permanent profile for her knee
* since receiving the permanent profile, she has taken and passed three record APFTs
* she requested an ETP but the U.S. Army National Guard Bureau (NGB) denied her request

3.  The applicant provides:

* three DA Forms 705 (APFT Scorecard)
* DA Form 5501 (Body Fat Content Worksheet - (Female))
* DA Form 3349 (Physical Profile)
* memorandum, dated 13 September 2013, sent by the NGB, subject:  Request for ETP for NPSEB [applicant]


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.  Records show the applicant enlisted in the Wisconsin Army National Guard (WIARNG) on 8 April 2010.  After completing initial training, she was awarded military occupational specialty 88M (Motor Transport Operator).  She is currently serving in the Active Guard/Reserve in the rank/grade of specialist/E-4.  

3.  On 8 April 2010, she signed an NGB Form 600-7-1-R-E to receive an NPSEB in the amount of $10,000.  

	a.  By signing the form the applicant acknowledged her bonus eligibility could be terminated with recoupment if she failed two consecutive record APFT.  

	b.  Payment of the bonus is shown as being made in three installments.  The first 50 percent installment was to be processed upon completion of active duty for training.  The second installment of 20 percent was to be paid on the third-year anniversary of the date of her enlistment.  The third and final installment of 30 percent was to be processed on the fifth-year anniversary of the date of her enlistment.

4.  Her records contain the following documents:

	a.  An NGB Form 602 (Army National Guard - Bar to Reenlistment, Immediate Reenlistment, or Extension (Certificate)).  On 19 June 2012, a bar to reenlistment was approved on the applicant based upon her failing two consecutive record APFTs (on 2 October 2011 and 16 May 2012, respectively).

	b.  Wisconsin National Guard (WING) Form 207 (Recommendation for Award), signed 2 January 2015, shows the applicant was awarded the WIARNG Write Medal (3rd Award) for the period 1 October 2012 to 30 September 2012.  (The Write Medal is named for Captain Walter H. Write, first member of the WIARNG to be killed in action during World War II, and is awarded to enlisted personnel for perfect attendance at inactive duty training assemblies).

	c.  WING Form 207, signed 2 January 2015, shows she was awarded the WIARNG Write Medal (4th Award) for the period 1 October 2012 to 30 September 2014.

	d.  WING Form 2166-8 (Specialist/Corporal Promotion Evaluation Report), covering the period 6 December 2013 to 5 December 2014, shows the applicant passed her APFT on 27 September 2014 and her senior rater (Staff Sergeant JTR, Squad Leader) stated she should be promoted.

5.  In a memorandum, dated 13 September 2013, subject:  Request for ETP for NPSEB [applicant], the NGB denied the applicant's request for an ETP to retain the $10,000 NPSEB and directed recoupment.  The basis for the NGB's decision was that she failed to pass two record APFTs within 12 months.

6.  The applicant provides:

	a.  A DA Form 3349 which shows she has a permanent profile (a level - 2 (P2) for "L" lower extremities ).  It was signed on 15 March 2013 by Colonel (Doctor) KL.  This profile restricts the applicant from performing the 2-mile run, but permits APFT events of walking, swimming, or bicycling.

	b.  A DA Form 705 which shows four APFTs performed between 16 May 2012 and 8 September 2013.  On 16 May 2012, the applicant failed a record APFT.  On 1 June 2013, and again on 8 September 2013, the applicant passed record APFTs.

	c.  A DA Form 705 shows the applicant passed a record APFT on 27 September 2014.

7. Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and outlines guidance for the physical profile serial system.

	a.  Chapter 7 provides guidance for the physical profile serial system  The profile is based on the function of body systems and their relation to military duties.  There are six factors, designated as:

* "P" for physical capacity or stamina
* "U" for upper extremities
* "L" for lower extremities
* "H" for hearing
* "E" for eyes
* "S" for psychiatric

	b.  Each factor is assigned a numerical designation from 1 to 4.

* "1" represents a high level of medical fitness
* "2" means there are some activity limitations
* "3" equates to significant limitation
* "4" indicates defects of such severity military duty performance is -drastically limited

	c.  The DA Form 3349 is used to record both permanent and temporary profiles.  

8.  Memorandum, dated 10 August 2007 (updated 17 February 2009), issued by the NGB, subject:  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 – 30 September 2009 (Policy Number 07-06) with Updates, (cited by the NGB as the authority for disapproving the applicant's ETP) established policy for the administration of ARNG incentives.  It states one of the reasons for termination with recoupment of a bonus is two consecutive failures of the APFT.

9.  Memorandum, dated 10 August 2007 (updated 15 March 2010), issued by the NGB, subject:  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 – 30 September 2009 (Policy Number 07-06) with Updates (EIOM's 09-020, 023, 024, 030, 34, 38, 39, 40, 41, 43, 45, 47, 51, 55, 56, 58, 59, 60, and 10-011), in effect when the applicant enlisted in the WIARNG, established policy for the administration of ARNG incentives.  It also stated one of the reasons for termination with recoupment of a bonus is two consecutive failures of the APFT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the portion of an NPSEB for which she has already been paid not be recouped.  Her contention is she hurt her knee and this caused her to fail two consecutive APFT.  Once she linked the cause of her APFT failures to her knee injury, obtained treatment, and was given a P2 physical profile, she has consistently passed her APFT. 

2.  The applicant signed an NGB Form 600-7-1-R-E to receive the NPSEB, and in so doing, acknowledged the requirement not to have two consecutive APFT failures.  She also affirms she did not pass two consecutive APFT (on 2 October 2011 and 16 May 2012, respectively), which violated the terms of her contract and, thus, requires the recoupment of all portions of the bonus that have been paid.  Other than a DA Form 3349, signed on 15 March 2013 (about 10 months after her second APFT failure), she offers no evidence to support her contentions.  

3.  Even accepting her contentions, however, they appear insufficient to overcome the fact she did not fulfill the requirements of her contract.  As such, the preponderance of the evidence does not support the granting of 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)                                         AR20150002074





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ABCMR Record of Proceedings (cont)                                         AR20150002074



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