IN THE CASE OF:	   

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:   AR20080011797 


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, in effect, that the Army honor the contract that authorized him to receive a $10,000 affiliation bonus in conjunction with his transfer from the Regular Army to the Kentucky Army National Guard (KYARNG).

2.  The applicant states, in effect, that he possesses a training certificate he received while serving on active duty (AD) that shows he is a qualified Motor Transportation Operator.  However, after his enlistment in the KYARNG, the "schoolhouse" would not award him military occupational specialty (MOS) 88M (Motor Transportation Operator).  He states that he has since finished the formal course and has been awarded MOS 88M.  He states that at the time of his enlistment in the KYARNG, both he and the Reserve Component (RC) Career Counselor believed he was 88M qualified and eligible for the affiliation bonus in MOS 88M.  However, this was denied by the KYARNG based on him not being MOS qualified.  He further states that he has exhausted all other avenues to receive payment of the affiliation bonus that was authorized in his RC enlistment contract.

3.  The applicant provides the following documents in support of his application:  Certificate of Release or Discharge from Active Duty (DD Form 214), Enlistment/ Reenlistment Document Armed Forces of the United States (DD Form 4), Written Agreement – Enlisted Affiliation Bonus Addendum, and Certificate and Acknowledgement of Service Requirements and Methods of Fulfillment for Individuals Enlisting or Transferring into Units of the Army National Guard upon Release from Active Duty (REFRAD)/Discharge from Active Army Service (DA Form 7249-R).
CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 22 February 2000.  He served continuously for 6 years, 5 months, and 26 days until being honorably REFRAD on 17 August 2006.  The separation document he was issued at the time shows in item 11 (Primary Specialty) that he held MOS 14S (Avenger Crewmember) and that this is the only MOS he held and served in during his active duty tenure.  It also shows in item 6 (Reserve Obligation Termination Date) that he had a statutory military service obligation (MSO) until 11 January 2008.

2.  Effective 18 August 2006, in conjunction with his REFRAD processing, the applicant enlisted in the KYARNG.  The enlistment contract shows he was authorized an enlisted affiliation bonus of $10,000.00 based on a 3-year enlistment for MOS 88M.  The applicant and a service representative authenticated this document with their signatures at the time.

3.  The applicant's Official Personnel Military File contains a Task Force 108th certificate of completion which shows he successfully completed the Drivers Training Course (88M) at Fort McClellan, Alabama, on 12 February 2005.

4.  Department of Military Affairs, Boone National Guard Center, Frankfort, Kentucky, Orders 134-814, dated 13 May 2008, awarded the applicant primary MOS (PMOS) 88M2O and secondary MOS (SMOS) 14S2O effective 20 April 2008.

5.  During the processing of this case, an advisory opinion was obtained from the Chief Personnel Division, ARNG.  This official stated that in accordance with National Guard Regulation 600-7, chapter 4, paragraph 4-3b, an affiliation bonus may be offered to an enlisted Soldier who has previously served on AD if the Soldier has satisfactorily completed a term of enlistment or a contractual AD obligation of not less than 2 years and/or has a remaining military service obligation.  Soldiers must accept assignment to a valid position vacancy, and if assigned to a table of distribution and allowances unit, the position must not be MOS immaterial.  The Soldier must also be qualified in the duty position to which assigned or MOS qualified in a substitutable MOS.  The Soldier must have been awarded the required MOS as either a PMOS, SMOS, or additional MOS.

6.  This official further stated that the applicant had completed a training course in February of 2005; however, this course was not recognized as an MOS producing course and the MOS was not awarded.  However, as noted by State reassignment orders, the Soldier performed in the capacity of that MOS since February 2005.  He recommended approval of the applicant's request that he receive payment of the affiliation bonus agreement that he signed at the time of his enlistment.  He stated his recommendation was based on an administrative error on the part of the Reserve Component Career Counselor through no fault of the applicant.  On 6 October 2008, the applicant concurred with this advisory opinion.

7.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) sets responsibilities; lists benefits; describes eligibility criteria and entitlements; sets suspension, termination, and recoupment requirements; and prescribes processing and payment procedures.  Paragraph 4-3b states in pertinent part that an affiliation bonus may be offered to an enlisted Soldier who has previously served on AD if the Soldier has satisfactorily completed a term of enlistment or a contractual active duty obligation of not less than 2 years and/or has a remaining statutory obligation.

8.  Title 37, United States Code, section 308c, states, in pertinent part, that the Secretary concerned may pay an affiliation bonus to an enlisted member of an armed force who has completed fewer than 20 years of military service and executes a written agreement to serve in the Selected Reserve of the Ready Reserve of an armed force for a period of not less than three years in a skill, unit, or pay grade after being discharged or REFRAD under honorable conditions.  The Secretary concerned shall designate the skills, units, and pay grades for which an affiliation bonus may be paid under subsection (a).  Any skill, unit, or pay grade so designated shall be a skill, unit, or pay grade for which there is a critical need for personnel in the Selected Reserve of the Ready Reserve of an armed force, as determined by the Secretary concerned.  The Secretary concerned shall establish other requirements to ensure that members accepted for affiliation meet required performance and discipline standards.

9.  Army Regulation 135-178 (Enlisted Administrative Separation) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  Paragraph 7-2 states, in pertinent part, that when it is discovered that a Soldier's enlistment is erroneous because he or she failed to meet the qualifications for enlistment, the unit commander will initiate action to retain, discharge, or release the Soldier, as appropriate.

10.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNGUS and the USAR incentive programs.  Paragraph 5-2 states, in pertinent part, that a Soldier with 18 months or less remaining of statutory MSO is entitled to payment of the entire bonus amount in a lump sum.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the Army honor its written agreement authorizing him to receive a $10,000.00 affiliation bonus in conjunction with his entry into the KYARNG was carefully considered and found to have merit.  By law, the Secretary concerned may authorize an affiliation bonus up to the amount of $10,000.00 to members who enter into an agreement to serve in the Selected Reserve.  The law allows the Secretary concerned the latitude in establishing the criteria and eligibility for the bonus.

2.  The evidence of record confirms the applicant entered into an enlisted affiliation bonus written agreement that authorized him to receive a $10,000.00 affiliation bonus for MOS 88M in conjunction with his entry into the ARNG Selected Reserve in good faith.  It further confirms the applicant has performed duties in an authorized 88M position since February 2005 and that he was ultimately awarded MOS 88M2O as his PMOS on 20 April 2008.

3.  Although there are regulatory provisions for separating a Soldier who entered into an erroneous enlistment contract or unfulfilled enlistment commitment, in view of the facts of this case and based on the recommendation of the Chief, Personnel Division, ARNG, it would be appropriate and serve the interest of justice and equity to correct his record by showing he held MOS 88M at the time he was REFRAD as an exception to policy and that the Army authorized him to receive the bonus in question, and by providing him a lump sum payment (based on having less than 18 months of MSO) of the $10,000.00 affiliation bonus agreed to and authorized in the enlisted affiliation bonus written agreement effective 18 August 2006.

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 showing the applicant held MOS 88M on the day he was REFRAD as an exception to policy, that the Army authorized him to receive the $10,000.00 affiliation bonus agreed to and authorized in the enlisted affiliation bonus written agreement effective 18 August 2006, and by providing a lump sum payment of this 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)                                         AR20080011797



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ABCMR Record of Proceedings (cont)                                         AR20080011797



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