IN THE CASE OF:	 

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090018758 


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 payment of his Prior Service Enlistment Bonus (PSEB) for which he enlisted as an exception to policy.  

2.  The applicant states the following:

* At the time of enlistment his recruiter told him military occupational specialty (MOS) 31B (Military Police) was a critical MOS
* After he completed all requirements set forth in his contract he was 
advised the career field was not critical until two months after the date of his contract
* He could have enlisted in MOS 88M (Motor Transport) and received a bonus
* He wished to further his military career and use his civilian training as a 
   police officer
* He currently holds primary MOS 31B and secondary MOS 88M
* He possesses two skills considered critical within 2 months of his 
   enlistment date
* He believes he is entitled to the appropriate bonus offered at the time for 
   either MOS 88M or MOS 31B for a 6-year enlistment

3.  The applicant provides the following documents in support of his application:

* Memorandum from Chief Education Incentives and Employment Division, 
   National Guard Bureau (NGB) dated 14 September 2009
* Memorandum from a State Incentive Manager, Office of the Adjutant 
   General North Little AR, dated 3 September 2009
* DD Form 1966 (Record of Military Processing – Armed Forces of the 
   United States)
* Memorandum from Unit Readiness Noncommissioned Officer-in-Charge 
(NCOIC), 216th Military Police Company North Little Rock AR dated
24 August 2009 
* DD Form 4 (Enlistment/Reenlistment Document)
*  NGB Form 600-7-6-R-E (Annex X to DD Form 4)
* Orders awarding him MOS 31B2O and MOS 88M2O
* Two DA Forms 1059 (Service School Academic Evaluation Report)
* Two Critical Skill MOS Lists, effective 16 June 2007 through 31 March 
   2008 and 8 October through 31 December 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Army National Guard (ARNG) in the rank of sergeant (SGT).  

2.  The applicant completed prior service in the Air National Guard and the U.S. Army Reserve from 11 March 1994 through 27 July 2005.  This prior service equals 11 years, 4 months, and 16 days.  He completed training in MOS 88M during prior Army period of service.   

3.  The Arkansas Critical Skill MOS List effective 16 June 2007 through 31 March 2008 does not show MOS 31B as a critical skill MOS.  The list does indicate MOS 88M was a critical skill MOS.  

4.  On 28 July 2008, the applicant enlisted in the ARNG for a period of 6 years.  His DD Form 1966 shows he enlisted for MOS 31B.  

5.  During enlistment processing, the applicant completed an NGB Form 
600-7-6-R-E.  Section I (General) of this document confirms the enlisting official would explain the Selected Reserve Incentive Program (SRIP) requirements.  The applicant initialed the following items under Section II (Eligibility) and Section III (Bonus Amount and Payments):  

   a.  "Not qualified in the primary MOS for which I am enlisting, but have enlisted into an MTOE [Modified Table of Organization and Equipment] unit in critical skill 31B and agree to attend formal training and become qualified in my contracted MOS within 24 months of my date of enlistment.  I understand that my initial bonus payment will not be processed until I become duty MOS qualified."
   
	b.  "I will receive a total bonus payment in the amount of $15,000 less taxes for a 6-year enlistment in a non-critical MTOE unit.  I certify that I am enlisting in a valid, vacant position (up to 125% strength) and I am…"

	c.  "Not MOS qualified for the position as of the date of this enlistment and must enlist into a State top thirty critical skill and become MOS qualified within 24 months."

	d.  "My bonus will be paid in two 50% installments.  The initial installment of 50% will be processed for payment upon enlistment (If not MOS qualified, my initial payment will not be processed until I become MOS qualified).  The second and final installment of 50% will be processed for payment on the third-year anniversary of enlistment."

6.  The applicant and enlisting official authenticated the PSEB Annex X in Section VIII (Authentication) and Section IX (Certification by Service Representative) on 28 July 2008.  The addendum shows a bonus control number of P089080009AR.  

7.  The applicant completed the Military Police Basic Course which he attended from 30 May through 27 June 2009.

8.  The Arkansas Critical Skill MOS List effective 8 October through 31 December 2008 shows MOS 31B as a critical skill MOS.  The list does not indicate MOS 88M as a critical skill MOS.  

9.  Orders published on 9 July 2009 show the applicant was awarded primary MOS 31B2O and secondary MOS 88M2O effective 9 July 2009.  

10.  In a memorandum, dated 24 August 2009, a Unit Readiness NCOIC requested that the applicant receive a PSEB as an exception to policy.  

11.  On 3 September 2009, in a memorandum addressed to the National Guard Bureau, the State Incentive Manager requested that the applicant be granted a PSEB as an exception to policy.  The memorandum indicated:

* SGT Yxxxx enlisted under Policy Number 07-06 dated 10 August 2007
* No critical Unit Identification Codes (UICs) at the time of SGT Yxxxx's 
   enlistment
* SGT Yxxxx enlisted as non-MOSQ [MOS qualified] into a MTOE unit for 31B
* At the time of SGT Yxxxx's enlistment MOS 31B was not recognized as a 
critical skill for the State of Arkansas
* SGT Yxxxx's DD Form 1966 and bonus contract show he enlisted as 
a 31B
* The 31B MOS did not become a critical skill until 8 October 2008, which 
was after SGT Yxxxx enlisted

12.  In a 14 September 2009 memorandum, the Chief, Education, Incentives and Employment Division, NGB, denied the request for an exception to policy.  That office stated the applicant contracted for the Prior Service Critical Skills Bonus to serve in a designated critical skill for a period of 6 years.  That office cited SRIP Policy 07-06, dated 10 August 2007, which indicated that a $15,000 Critical Skill Bonus was not authorized for the State Military MOS 31B.  SRIP Policy 07-06 paragraph h(3) eligibility requirements state:  Agree to retrain in a critical MOS vacancy within an MTOE unit and become MOSQ within 24 months.  Due to the fact that MOS 31B was not a State critical skill at the time SGT Yxxxx contracted, he remains ineligible to receive the incentive for which contracted.  That office also stated the Military Personnel Office (MILPO) should ensure all elements responsible for counseling Soldiers on this issue are properly trained so that the guidance service members receive is accurate and effective.  

13.  In the processing of this case, an advisory opinion was obtained from the NGB, Personnel Division, which recommended approval of the applicant's request to receive a PSEB.  It was recommended the applicant receive a signing bonus in the amount of $15,000.  The opinion stated the following:

	a.  The recommendation was based on the NGB Form 600-7-R-E, dated 28 July 2008 signed by the applicant;

	b.  NGB Form 600-7-R-E shows the applicant met the requirements of his contract and was issued a bonus control number of P089080009AR;

	c.  ARNG SRIP Guidance for Fiscal Year 2007, 10 August 2007 – 
31 March 2007 Policy Number 07-06 and continuation memorandum, dated 
20 May 2008 provides PSEB eligibility;

	d.  The ARNG offers two PSEB options to prior service applicants who enlist in the ARNG for 3 or 6 years and

		(1) Enlist MOSQ [MOS qualification] into a critical unit identification code (UIC); and

		(2) Enlist MOS or non MOSQ in an MTOE (6-year enlistment, re-enlistment, or Affiliation Bonus may now receive the PSEB).

	e.  Criteria for PSEB options are:

		(1) Not have more than 16 years total prior military service upon enlistment in the ARNG; 

		(2) Be MOSQ for the position for which enlisted; 

		(3) Agree to retrain in a critical MOS vacancy within an MTOE unit and become MOSQ within 24 months of enlistment;

		(4) Have received an honorable discharge upon completion of all prior periods of service;

		(5) Not enlisting for the purpose of qualifying for employment in the Military Technician or Active Guard Reserve program;

		(6) Not enlisted into a TDA [Table of Distribution and Allowances] unit;

		(7) Not enlisting under the provisions of DA Form 368 (Conditional Release) from another component of the Armed Forces of the United States to include another selected reserve component; and

		(8) Not enlisting under the OCS [Officer Candidate School] enlistment option.

14.  A copy of the advisory opinion was provided to the applicant for comments; however, he did not respond within the allotted timeframe.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be paid a PSEB as an exception to policy has been acknowledged and appears to have merit.  

2.  The available evidence confirms the applicant enlisted for a $15,000 PSEB that he was not authorized.  He completed the required formal training and became qualified in his contracted MOS, but his MOS was not on the authorized list of MOSs at the time he enlisted.  However, it was placed on the authorized list of MOSs shortly thereafter.

3.  While the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties, given the enlisting official failed to notify the applicant he was not eligible for the bonus at the time of his enlistment, it would be appropriate, and serve the interest of justice, to provide him the PSEB he was promised in his enlistment contract as an exception to policy.

BOARD VOTE:

____X___  ____X_  __X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by, as an exception to policy, showing MOS 31B was included on the Arkansas Critical Skill MOS list in effect at the time of his July 2008 enlistment.  

2.  That as a result of the foregoing correction the Defense Finance and Accounting Service shall pay to the applicant the $15,000 PSEB in accordance with the terms of his enlistment contract, at the appropriate time and rate.



      ___________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)                                         AR20090018758



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ABCMR Record of Proceedings (cont)                                         AR20090018758



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