IN THE CASE OF: BOARD DATE: 18 March 2014 DOCKET NUMBER: AR20130013240 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 correction of his records to show he is eligibile for the Reenlistment/Extension Bonus (REB) and the Student Loan Repayment Program (SLRP). In addition, the applicant requests relief from recoupment of funds received. 2. The applicant states he enlisted in the California Army National Guard (CAARNG) on 13 July 2006, under the "Try One" program. On 13 December 2006, he extended his enlistment for 6 years after being told he was eligible for both the REB and the SLRP, and he would begin to see payments at the effective date of his extension. 3. Through an audit he was informed that he was not duty military occupational specialty qualified (DMOSQ) at the time of his extension and he was therefore ineligible for the incentives. Further, the incentives were meant to terminate at the time he accepted an Active Guard Reserve (AGR) position. 4. The applicant states: * it is true he was not DMOSQ at the time of his extension * he was DMOSQ by 2 May 2007, well before his 12 July 2007 contract effective date * regarding acceptance of the AGR position, policy has since changed to allow a Soldier to retain incentives * he entered into a contract trusting he was eligible for the REB and SLRP * per the terms he had fully performed his end of the contract * he would not have agreed to the extension if not for the REB and SLRP 5. The applicant provides National Guard Bureau (NGB)-EDU-09-001, Education and Incentive Operation Message (EIOM), dated 29 October 2008 and NGB-EDU-09-058, EIOM, dated 14 September 2009 CONSIDERATION OF EVIDENCE: 1. The applicant had prior service in the U.S. Naval Reserve. His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), shows he enlisted in the CAARNG on 13 July 2006 for a one-year term of service under the "Try One" program. His expiration of term of service (ETS) was 12 July 2007. 2. Item 18 (Accession Data) of the applicant's DD Form 1966/1 (Record of Military Processing Armed Forces of the United States), dated 13 July 2006, shows he was accessed in the CAARNG in MOS 31B1O (Military Police). Item 32 (Specific Option Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees) does not show the specific option/program he enlisted for. There is no evidence in the available records that shows he was awarded MOS 31B1O. 3. Orders 303-1163, dated 30 October 2006, issued by the Joint Force Headquarters (JFH), CAARNG, show the applicant was released from the 270th Military Police Company, and he was transferred to the JFH, CAARNG, effective 30 October 2006. He was placed in DMOS 42A1O and his duty position qualifications shows the entry "N" meaning no. 4. A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 14 December 2006, shows the applicant extended his current enlistment with the CAARNG by 6 years, thereby changing his ETS date to 12 July 2013. 5. In conjunction with his enlistment, he executed a National Guard Bureau (NGB) Form 600-7-6-R (Annex R to DD Form 4 or DA Form 4836 REB Addendum Army National Guard of the United States (ARNGUS)). By signing the form, he verified he was eligible for an REB in the amount of $15,000.00, less taxes, payable in one lump sum, for payment on the date that his extension took effect. a. He acknowledged: * he was qualified in and held the MOS to which he was assigned * he extended his enlistment for a $15,000.00 bonus * he would be terminated from bonus eligibility with recoupment if he accepted a Military Technician position and on the effective date of his orders he not served at least 6 months of the incentive contract term * he had read the addendum in its entirety and he understood all of the above statements concerning his reenlistment or extension bonus * he acknowledged that the addendum would be void if he did not meet all of the requirements b. He signed and dated the document on 14 December 2006. 6. In conjunction with his extension, he also executed an NGB Form 600-7-5-R-E (Annex L to DD Form 4 - SLRP Addendum, ARNGUS). By signing the form, he verified he was eligible for the SLRP in the amount of $20,000.00, less taxes, payable in one lump sum, for payment on the date that his extension took effect. a. He acknowledged: * he qualified for the SLRP in the amount of $20,000. * he had 2 loans existing in the amount of $42,541.09, and the total amount of the repayment for qualifying loan(s) would not exceed $20,000 * he acknowledged that his SLRP eligibility would be terminated if he accepted a Title 10 or Title 32 tour b. He signed and dated the document on 14 December 2006. 7. Orders 123-1194, dated 3 May 2007, issued by the JFH, CAARNG, show the applicant's MOS 09B1O (Trainee Unassigned) was withdrawn and he was awarded MOS 42A1O (Human Resources Specialist), effective 2 May 2007. 8. Orders 229-1071, dated 17 August 2007, issued by the JFH, CAARNG, show the applicant was ordered to full-time National Guard duty (FTNGD), effective 16 August 2007. 9. The applicant provides an NGB-EDU-09-001 EIOM, dated 29 October 2008, which provides guidance for State Incentive Managers and Soldiers with procedures, and information to participate in and execute the change to AGR and Military Technician termination and recoupment rules. The message states, effective 9 October 2008, any enlisted Soldier or officer currently under contract for an incentive governed by NGB SRIP Guidance for Fiscal Year (FY) 2007, 10 August 2007-31 March 2009 (Policy Number 07-06), dated 10 August 2007 and NGB Implementation Guidance for Critical Skill Retention Bonus (CSRB), dated 1 February 2008, who accepts either an AGR or Military Technician position within the ARNG will have their incentive terminated without recoupment. 10. The EIOM further states any unpaid portion of the incentive will be paid to the Soldier. Any Soldier who has had his or her incentive terminated, as a result of accepting an AGR or Military Technician position, between 9 October 2008 and the date of this memorandum may seek relief from that termination action. 11. The applicant provides NGB-EDU-09-058 EIOM, dated 14 September 2009, Subject: Clarification of Continuing SLRP Benefits Upon Acceptance of an AGR and/or Military Technician Position. The message provided clarification of continuing SLRP benefits upon acceptance of an AGR or Military Technician position for SLRP entitlements. The message further stated Soldiers ordered to active duty in the State AGR program and the Military Technician program would be entitled to SLRP payments as long as they remained under their initial contract and/or agreement for which SLRP was awarded. 12. In the processing of this case an advisory opinion was obtained on 20 September 2013 from the Chief, Personnel, Programs, Resources, and Manpower Division, NGB. The advisory opinion noted research revealed the applicant extended his enlistment with the CAARNG on 14 December 2006 with a contract start date of 13 July 2007. The REB and SLRP addenda were not on file and the Bonus Control Number (BCN) was not requested until 7 March 2007. The SLRP addendum was not signed and dated by a witnessing official. Further, the applicant became AGR on 16 August 2007, shortly after his contract effective date. The applicant did not respond to the advisory opinion. 13. The advisory opinion stated continued eligibility for an incentive is terminated if a service member accepts a Military Technician or AGR position where membership in a Reserve Component is a condition of employment. Soldiers in a temporary technician status of less than 6 months are excluded from the rule. The applicant was not DMOSQ at the time of his extension to receive an REB. The advisory opinion recommended recoupment action against the applicant for his $15,000.00 REB and termination of the SLRP. The official stated the applicant served less than the minimum time required before entering an AGR status and he was also not DMOSQ at the time of the REB payments. The applicant did not respond to the advisory opinion. 14. On 5 November 2013, the Commander, CAARNG, Soldiers Incentive Assistance Center (SIAC), provided a memorandum on behalf of the applicant. a. The officer stated SIAC audited the applicant and discovered he was not eligible to receive payment for the SLRP and REB incentives. He was never eligible for either incentive. The SIAC certified two debts, $9,000.00 for SLRP and $15,000.00 for REB, were sent to the United States Property and Fiscal Office (USPFO) to initiate recoupment. To date, the applicant has a debt balance of $10,713.00 REB and $4,713.06 SLRP. b. The applicant signed a SLRP addendum on 14 December 2006 and was paid $9,000.00. He did not become MOS qualified (42A) until 2 May 2007; therefore, he was never eligible to contract or receive this incentive due to being non-DMOSQ in a critical skill. c. The official stated the applicant signed an addendum for a $15,000.00 bonus on 14 December 2006. A BCN was requested for the incentive on 7 March 2007 and he was paid a $15,000.00 lump sum on 20 July 2007. He was non-DMOSQ and not awarded MOS 42A until months after signing his extension contract. Because he received the REB on 20 July 2007 and he was put on AGR orders 16 August 2007, he served less than one month after receipt of his bonus payment, and his eligibility was subject to termination with recoupment. d. The official concluded that since the applicant was never eligible to contract for the SLRP and REB due to his MOS status at the time of enlistment, and because these incentives would have nonetheless been terminated due to his AGR status, the only favorable action with regard to the $24,000.00 in incentives received is relief from recoupment. 15. In the processing of this case an advisory opinion was obtained on 27 November 2013, from the Chief, Personnel Policy Division, NGB. The Chief recommended recoupment of the REB due to the following: * the applicant received a bonus payment of $15,000.00 on 20 July 2007 * the applicant was ineligible at the time of the contract because he was not DMOSQ * Department of Defense Instruction (DODI) 1205.21 states as a condition of accepting a bonus, the Soldier must hold the military grade and skill commensurate with the vacancy * to be eligible for prorated recoupment, the Soldier needs to serve at least six months prior to entering an AGR position * National Guard Regulation 600-7 states the bonus is terminated if the Soldier enters into AGR status 16. The advisory opinion stated the applicant received a total of $9,000.00 in SLRP benefits in 2008 and 2009. 17. The advisory opinion concluded that consideration should be given to administrative relief because the government should not have paid the SLRP benefits. When the erroneous payment is the fault of the government, the recoupment may be waived in accordance with Title 10, U.S. Code, section 2774, paragraph (a), which states, "A claim of the United States against a person arising out of an erroneous payment of any pay or allowance the collection of which would be against equity and good conscience and not in the best interest of the United States, may be waived in whole or in part." The CAARNG states the applicant was ineligible for both incentives and recommends relief from recoupment. The applicant did not respond to the advisory opinion. 18. Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNG and the USAR incentive programs. Chapter 4 provides the qualifications for the reenlistment or extension bonus under the SRIP. Paragraph 4-3 states an immediate reenlistment or extension bonus may be awarded to a Selected Reserve Soldier who is reenlisting or extending for a valid position vacancy in a designated unit or MOS authorized for award of an immediate reenlistment or extension bonus. Additionally, he or she must meet the MOS qualification of that position at the time of reenlistment or extension. 19. NGB SRIP Guidance for Fiscal Year (FY) 2007 (Policy Number 07-01), dated 1 October 2006, paragraph 5 (Termination with Recoupment), provides if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Paragraph 6c (Termination) without Recoupment), states Soldiers eligibility for incentives will terminate without recoupment when a member accepts an AGR or Military Technician position where the membership in the ARNG is a condition of employment, and the member has completed at least six months of the incentive contract term. 20. NGB SRIP Guidance for Fiscal Year (FY) 2007 (Policy Number 07-01), dated 1 October 2006, paragraph 8h (REB) states the ARNG offers an REB to Soldiers who meet following eligibility requirements: (1) Extend for three to six years. (2) Be MOSQ for the position for which extending. (3) Extend in a valid vacant position (4) Have no more than 20 years of time in service at current ETS. DISCUSSION AND CONCLUSIONS: 1. The applicant's requests for correction of his military records to show he is eligibility for the REB and SLRP and relief from recoupment of funds received were carefully considered. 2. The applicant contends that the policy has since changed to allow a Soldier to retain the REB and SLRP incentives. NGB-EDU-09-001 EIOM, dated 29 October 2008, changed the AGR and Military Technician termination and recoupment rules. However, the change pertains to AGR and Military Technicians who entered the program after 9 October 2008. Evidence of record shows he accepted a Military Technician position and he was ordered to FTNGD on 16 August 2007, making him ineligible for the current program. 3. The applicant admitted that he was not DMOSQ at the time of his extension. Evidence of record shows that on 14 December 2006, he extended his current enlistment to 6 years. He was not awarded MOS 42A1O until 2 May 2007. NGB SRIP Guidance for Fiscal FY 2007 (Policy Number 07-01), in effect at the time, stated the ARNG offers a REB to Soldiers who were DMOSQ for the position for which extending. 4. In addition, his bonus addendum already outlined the eligibility criteria. 5. The applicant has not provided a compelling explanation or evidence to show that it would be in the interest of justice to allow him to retain the $15,000.00 REB. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. There is no basis for cancelling the REB recoupment, which resulted from his failure to be DMOSQ at the time of his extension 6. The government erroneously paid a total of $9,000.00 in SLRP benefits in 2008 and 2009. 7. NGB SRIP Guidance for FY 2007 (Policy Number 07-01) states if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. 8. The applicant's contract began on 13 July 2007. On 16 August 2007, he was ordered to FTNGD. NGR 600-7 states SLRP will be terminated when a Soldier accepts a Title 10 AGR position or Title 32 Military Technician effective on the date of entry on AGR status. His SLRP terminated on 16 August 2007 without recoupment, but he had not completed six months of the incentive contract term. He served one month prior to accepting a Military Technician position. Consequently, he forfeited the SLRP to accept the Military Technician position. 9. The Chief, Personnel Policy Division, NGB, recommended favorable consideration should be given to administrative relief because the government made an error and should not have paid the SLRP. Based on the appearance that repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States, the applicant's record should be corrected to show relief from recoupment of SLRP funds received. As a result, recoupment of his SLRP should be cancelled and any recouped portion of his SLRP should be returned to him. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X____ ___X____ ___X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected to show an exception to policy was granted to relieve him from recoupment of SLRP funds received. As a result, recoupment of his SLRP should be cancelled and any recouped portion of his SLRP should be returned to him out of Army National Guard funds. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to showing he was eligible for the REB and SLRP. _______ _ 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) AR20130013240 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130013240 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1