IN THE CASE OF:	  

		BOARD DATE:	    27 October 2015

		DOCKET NUMBER:  AR20150009072 


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 $291.67 portion of his prior service enlistment bonus (PSEB) he has already been paid not be recouped, and that the remaining amount be paid pursuant to his enlistment contract.

2.  The applicant states, in effect:

a. After returning from his last deployment to Afghanistan, he was placed on
a profile for an injury to his shoulder.  He was placed in the medical hold program and had his shoulder repaired.  After extensive physical therapy, he was released from the program.

b.  His temporary profile was lifted as of 1 August 2013.  Therefore, he was
given an Army Physical Fitness Test (APFT) and failed the run portion due to pain in his knees.

c. He made attempts to be seen by the Department of Veterans Affairs (VA)
but was unable to get an appointment until March 2014.

d. He was given another APFT and failed the run a second time.  However, 
shortly after that he was seen at the VA and was diagnosed with derangement of the knees caused by multiple deployments.

e. He was issued a profile that allowed the 2 ½ mile walk APFT
alternative event.  He has since passed two APFT’s.

f. He was not in control of the circumstances that led to the two failed 
APFT’s; therefore, he should be allowed to retain the enlistment bonus he received as well as receive the remaining amount yet to be paid.

g. He is an exceptional member of his unit and has upheld his end of his
contract and believes the Army should honor theirs. 

3.  The applicant provides:

* three DA Forms 705 (APFT Scorecard)
* APFT History
* DA Forms 3349 (Physical Profile)
* Orders A-03-304385, dated 21 March 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum, dated 16 January 2015, from the Headquarters, Iowa Army
     National Guard (IAARNG), subject: Notification of Incentive Eligibility 
     Termination
* Memorandum, dated 3 February 2015, from the National Guard Bureau (NGB), subject: Request for Exception to Policy (ETP) for PSEB
* Memorandum, dated 17 April 2015, from Headquarters, IAARNG, subject: Notification of ETP result
* memorandum, dated 27 April 2015, sent by the commanding officer of the IAARNG, subject:  Request for ETP [for applicant]

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the IAARNG on 30 July 2001.  After completing initial training, he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  

3.  On 7 January 2010, he signed an NGB Form 600-7-1-R-E to receive a PSEB in the amount of $15,000.  Payment of the bonus is shown as being made in two installments.  The first 50 percent installment was to be processed upon enlistment if he was already MOS qualified for the position for which he was enlisting.  The second installment and final 50 percent installment would be processed for payment on the 36-month anniversary of the date of enlistment.

4.  His APFT history shows:

* on 11 November 2010, he failed the run portion of the APFT
* on 17 November 2010, he passed his APFT
* on 13 May 2011, he passed his APFT
* on 8 December 2013, he failed the run portion of the APFT

5.  In a memorandum, dated 14 March 2014, subject:  Request for ETP for PSEB [applicant], the NGB approved the applicant’s request for an ETP to retain the $15,000.00 bonus.  The basis for the NGB’s decision was the applicant’s contract/bonus addendum was obsolete in that it did not address a suspension or termination of his bonus based on an APFT failure.

6.  His APFT history shows:

* on 1 March 2014, he failed the run portion of the APFT
* on 13 April 2014, he passed his APFT (alternative event: 2 ½ walk)
* on 18 October 2014, he passed his APFT (alternative event 2 ½ walk)

7.  In a memorandum, dated 3 February 2015, subject:  Request for ETP for PSEB [applicant], the NGB denied the applicant's request for an ETP to retain the $15,000 bonus and directed recoupment effective the date of the second APFT failure.  It appears that the basis for the NGB's decision was that he failed to pass two APFTs within 12 months.

8.  The applicant provides three DA Forms 3349 which show:

* on 1 March 2013, he had a temporary profile (a level 3 (U3) for "U" (upper extremities)) due to a right shoulder surgery.  He was medically waived from the APFT
* on 18 June 2013, he had a temporary profile of U3 since he was still recovering from his surgery; he was able to do the run portion of the APFT, but exempt from the sit-up and push-up portion of the test
* on 10 April 2014, he had a permanent profile (a level 2 (L2) for “L” (lower extremities)) due to his right and left knee pain.  He was allowed to participate in the alternative APFT for the 2 ½ mile walk

9.  The applicant provides a letter from the IAARNG commanding officer dated 27 April 2015, which states:

a.  “After the [applicant] failed the test [December 2013] he had noticed 
…pain in his knees.  After this APFT, [he] made multiple attempts to get seen at his local VA, however no appointment could be made until after March 201[4].  On 1 March 201[4], [he] went to the doctor where he was diagnosed with derangement of the knees.”

b.  “had the unit realized that [applicant’s] bonus would be effected by his two 
consecutive APFT’s failures, we would not have administered them.  The unit would have made the second APFT a diagnostic test.  This way the Soldier could truly see where he was at on the run portion of the APFT and that he needed to get a permanent profile for the run event.”

10.  The applicant states, in effect, that although he had medical issues, he was not in control of the circumstances that led to the two consecutive APFT failures. The only time he was able to schedule a medical appointment with the VA to get a profile was after a record APFT was scheduled. 

11.  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.  

12.  A 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.

13.  A 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 in effect when the applicant enlisted in the IAARNG, 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 the bonus he has already been paid ($291.67) not be recouped and that he receive the remaining second installment of his bonus.  His contention is that he was unable to schedule a VA medical appointment before the second scheduled APFT in order to get a profile so that he would be able to do the walk vice the run portion of the test.  Once he was seen by the VA, he was able to obtain treatment, was given a P2 physical profile and allowed to walk the APFT.  He has since consistently passed his alternative APFT. 

2.  In 2010, the applicant signed an NGB Form 600-7-1-R-E to receive the PSEB. After his 8 December 2013 APFT first failure, NGB acknowledged and granted an ETP for the applicant due to the fact that the contract he signed was obsolete, and it did not mention anything regarding suspension or termination of his PSEB if he failed an APFT.  Additionally, NGB stated that the applicant accepted the incentive offer in good faith and had otherwise fulfilled the obligations under the contract.  

3.  After the applicant’s second APFT failure on 1 March 2014, NGB denied the applicant’s request for a second ETP on 3 February 2015.  NGB stated that the applicant had two consecutive record APFT failures which violated the SRIP 
07-06 (updated on 1 March 2009).  It appears that NGB felt that the applicant received fair warning when he received his first ETP.

4.  Notwithstanding NGB’s denial for the applicant’s second ETP, there appears to be sufficient evidence to show that it was through no fault of the applicant that he was unable to schedule a medical appointment any sooner than March 2014. Had he been seen sooner, he would have been waived from the run portion of the APFT and been allowed to walk the APFT.  Additionally, since his diagnosis, the applicant has passed every APFT to date.  

5.  Notwithstanding the issues he had, he has continually served in the ARNG and continues to serve. Therefore, in the interest of equity, it would be appropriate to correct the applicant's record to show he was approved for an ETP authorizing him to retain his PSEB.  In addition, the recoupment action should be terminated, the applicant should be reimbursed all monies that were recouped and he should be paid the remaining portion of his bonus.

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 and State ARNG records of the individual concerned be corrected by:

     a.  showing an ETP was approved authorizing the applicant to retain his PSEB; and 

   b.  showing the action to recoup his PSEB was cancelled, allowing him to retain the initial payment, reimbursing all monies previously collected as a result of the recoupment action, and paying the final 50 percent installment of the bonus.



      _______ _   __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)                                         AR20150009072



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