IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080007561 


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 remission or cancellation of his indebtedness in the amount of $14,791.67.

2.  The applicant states he reenlisted in the Puerto Rico Army National Guard for 6 years and a $15,000 reenlistment bonus on 6 March 2007.  On 18 April 2007, he entered the Active Guard Reserve (AGR) program.  On 30 October 2007, he was notified by the Defense Finance and Accounting Service (DFAS) that he was indebted to the Government for the unearned portion of his reenlistment bonus.

3.  The applicant provides a letter dated 1 March 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a member of the Puerto Rico Army National Guard (PRARNG).  On 6 March 2007, he reenlisted for a period of 6 years (72 months) and a Selected Reserve Incentive Program (SRIP) bonus of $15,000.00.  Within 2 weeks of his reenlistment, he received his bonus.  On 18 April 2007, he entered the AGR program.

2.  The applicant's Interactive Personnel Electronic Records Management (iPERMS) records show that, on 15 June 2007, he was honorably discharged from the Army National Guard and transferred to the US Army Reserve (USAR) Control Group (Reinforcement), or IRR.

3.  On 30 October 2007, the DFAS notified the applicant that, for SRIP bonus purposes, he had only satisfied 1 month of his 72-month enlistment.  The DFAS stated he had only earned $208.33 of his $15,000.00 bonus and would have to repay the remaining $14,791.67.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB) which recommends the applicant be permitted to keep his bonus with no recoupment.  The opinion quotes National Guard Regulation (NGR) 600-7 (Selected Reserve Incentive Programs) which provides, in chapter 7, section 7-9e, for termination of entitlement and eligibility for the Prior Service Enlistment Bonus without recoupment [emphasis added] under certain listed conditions.  When termination is effected, compute the Soldier’s entitlements and pay to the Soldier any amount due; however, do not recoup any amounts paid "...when the Soldier accepts an AGR position on Title 10 or Title 32 effective to the date of entry on AGR status. Soldier must have served at least 6 months of the incentive contract following the date of bonus payment eligibility.  If the Soldier has served at least six months of the incentive contract following the date of bonus payment eligibility, termination will be without recoupment."  The applicant was provided an opportunity to respond to the advisory opinion, but did not do so.

5.  NGR 600-7 prescribes policies and procedures for the administration of the Army National Guard of the United States (ARNGUS) incentive programs, including the Prior Service Enlistment Bonus.  Section 7-9e states as indicated above.  However, section 7-8 (Termination with recoupment), which curiously follows section 7-9, specifically provides for recoupment of the unearned portion of a reenlistment bonus, effective to the date of entry on AGR status, when a Soldier accepts an AGR position on Title 10 or Title 32 and has served less than six months of the incentive contract following the date of bonus payment eligibility.

6.  Under Secretary of Defense (USD) policy memorandum, dated 21 May 2008, establishes modified Department of Defense (DOD) policy guidance on repayment of unearned portions of bonuses, special pay, educational benefits and stipends (hereafter called pay or benefit).  It states that service members who enter written agreements for pay or benefit are subject to statutory repayment authorities and that repayment of any unearned portion of the pay or benefit would be aggressively pursued.  The memorandum recognizes certain circumstances that support the need to refrain from such action.  Specifically:

	a.  Upon the death of the service member, not due to misconduct, repayment shall not be sought and any remaining unpaid portion of pay and benefit is payable in a lump sum in the decedent's final military pay account.
	b.  Upon separation or retirement for disability that was incurred in the line of duty in a combat zone or in a combat-related operation (Chapter 61 of title 10, USC), repayment shall not be sought and any remaining unpaid portion of pay and benefit shall be paid to the member upon separation from the service.  In all other instances involving a member's separation for medical reasons not under Chapter 61, not the result of misconduct, the Secretary concerned has the discretion to determine whether to require repayment of the unearned portion of the pay or benefit, or to pay an unpaid balance.

	c.  Subject to enlistment authorities under titles 10 and 37, USC, a member paid a bonus for a period of enlistment, who is discharged for immediate reenlistment or appointment in a Military Department for which no bonus is paid, may be considered to have completed the full term of service specified in the contract for which the bonus was paid, provided the term of the latter period includes the remaining portion from the former enlistment.

	d.  Repayment will not be sought and the unpaid portion of the bonus will not be paid when:

		(1)  employment in another military occupational specialty (MOS) or assignment rotation is directed;

		(2)  the member's MOS or assignment is phased out or eliminated;

		(3)  the member's MOS or assignment is otherwise affected by a force structure or other mission essential requirement; or

		(4)  the member's separation is for hardship.

	e.  Notwithstanding "d." above, under all other circumstances, the Secretary concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment, or the full payment of an unpaid portion, of a pay or benefit is appropriate based on the following:

		(1)  contrary to a personnel policy or management objective;

		(2)  against equity and good conscience; or

		(3)  contrary to the best interest of the United States.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was a member of the PRARNG and extended his enlistment for 6 years on 6 March 2007 in return for a $15,000.00 bonus.  He then accepted an AGR position on Title 32 and entered the AGR on 18 April 2007.  He served only 1/72nd, or 1 month, of his enlistment for bonus purposes.

2.  The applicant only served in the AGR program until 15 June 2007 – some 2 months – before he was honorably discharged and transferred to the USAR IRR.  In effect, he extends in the ARNG for 6 years for $15,000.00; switches from the ARNG to the AGR; then from the AGR to the IRR, all in the span of 3 months.

3.  NGR 600-7 clearly provides that, in order to terminate a Prior Service Enlistment Bonus without recoupment of an already paid – but unearned – portion of the bonus, the Soldier must have served 6 months of the incentive contract.  If the Soldier has not served the minimum 6 months of the incentive contract, the bonus is terminated and recoupment of the already paid, unearned portion is effected.

4.  The NGB advisory opinion recommended that the unearned portion of the applicant's bonus not be collected citing NGR 600-7.  This opinion is flawed; the cited regulation clearly shows the applicant is not entitled to keep the unearned portion of his Prior Service Enlistment Bonus because he did not serve 6 months of his extension contract – he is only entitled to keep the earned portion.

5.  The DFAS has determined that the applicant's earned portion of his bonus is $208.33, or 1/72nd of the extension period.  The DFAS requires he must repay the unearned portion of $14,791.67.

6.  Notwithstanding the NGB advisory opinion, the evidence of record does not support granting the relief requested.  Recoupment action is not determined to be contrary to a personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States.  Therefore, the applicant should remain subject to recoupment of the unearned portion of the bonus.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



															XXX
      ______________________
       	   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)                                         AR20080007561



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ABCMR Record of Proceedings (cont)                                         AR20080007561



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