IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100015121 


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 his enlistment contract be changed to show that he enlisted for unit identification code (UIC) “WUAUTO” in military occupational specialty (MOS) “42A” and that he was eligible for a $20,000 Non-Prior Service (NPS) Non-Critical Skill (NCS) Bonus.

2.  The applicant states that when he enlisted in the Minnesota Army National Guard (MNARNG) he signed his contract with the understanding that he would receive a $20,000 bonus for becoming qualified as a 15P (Aviation Operations Specialist).  He goes on to state that 2 months prior to leaving for initial active duty training he was informed  that he had no security clearance and was not eligible for training as a 15P and that he would be sent to 42A (Human Resources Specialist) school.  He also states that he was told that it would not affect his bonus; therefore he had no problem with being trained as a 42A.  However, when he returned from basic training he was informed that he did have a security clearance.  He continues by stating that he was subsequently informed that he would not receive his bonus; however, he is still willing to attend 15P training in order to receive his bonus.

3.  The applicant provides:

* A copy of his enlistment agreement in the MNARNG
* Documents indicating that he has a secret security clearance
* A memorandum from the National Guard Bureau (NGB) denying his request for an exception to policy for a $20,000 NPS Critical UIC Bonus
* A memorandum from his unit readiness noncommissioned officer requesting an exception to policy
* An email from the MNARNG Education Services officer advising him to apply to the Board requesting a change in his contract.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, though very limited, show that he enlisted in the MNARNG on 19 June 2008 for a period of 8 years under the NPS Critical UIC Bonus enlistment option for training as a 15P and assignment to UIC WP7TD2.

2.  The applicant acknowledged in his contract that his acceptance of his enlistment option was contingent upon the results of a thorough screening and if found unacceptable, he would be allowed to choose another option for which he was qualified or request separation.

3.  For reasons not explained in the available records he did not become qualified in MOS 15P and instead attended and completed training in MOS 42A.  

4.  The applicant submitted a request to the NGB for an exception to policy to allow him to receive a $20,000 NPS Critical UIC Bonus.  His request was disapproved on 9 November 2009.  The memorandum from the NGB indicates that the applicant voluntarily transferred into a non-critical skill and unit other than what he enlisted for and was not contractually eligible to receive a bonus.

5.  The email provided by the applicant with his application advised the applicant to apply to the Board to have his contract amended to reflect that he enlisted for his current unit in MOS 42A for a NPS Non-Critical Skill Enlistment Bonus.

6.  A review of the available records fails to show why the applicant did not attend 15P training and it also does not show that he voluntarily consented to training in another MOS with a guarantee of a bonus of any kind or that he requested to be separated from the service.   

7.  The available records also fail to show that any support or explanation has been made by the applicant’s chain of command nor has the chain of command provided any documentation to support the actions taken by the command that were contrary to the applicant’s enlistment contract.

8.  Documents provided by the applicant with his application show that the applicant has a secret security clearance based on the Central Clearance Facility (CCF) determination on 1 August 2008. 

9.  In the processing of this application a staff advisory opinion was obtained from NGB, Personnel Policy Division which recommends that the applicant be paid a $20,000 non-prior service enlistment bonus because through administrative error that was through no fault of the Soldier, steps were not taken to allow him to maintain his bonus entitlements.  The applicant was provided a copy of the advisory opinion and concurred with the opinion as written.

10.  Army Regulation 135-178 Enlisted Administrative Separations (Army National Guard and Army Reserve) provides in paragraph 7-3 the provisions for separation for defective enlistments or reenlistments.  It provides, in pertinent part, that a defective enlistment agreement exists in the following circumstances:

* As a result of material misrepresentation by recruiting or retention personnel, upon which the Soldier reasonably relied, and the Soldier was induced to enlist with a commitment for which the Soldier was not qualified

* The Soldier received a written enlistment commitment from recruiting personnel for which the Soldier was qualified, but which cannot be fulfilled by the Army.

DISCUSSION AND CONCLUSIONS:

1.  The sincerity of the applicant’s claim that he was incorrectly informed that he did not qualify for training in MOS 15P and that he was informed that he would receive a bonus for MOS 42A is not in doubt.  However, the evidence of record does not show and he has not submitted sufficient evidence to support his contentions.

2.  However, the applicant has a written contract which specifies that he must complete training in MOS 15P and that he must be assigned to a critical UIC in order to receive his bonus.  His contract also specified that if he could not qualify for training as a 15P he could select another MOS or request separation.  The evidence of record does not contain evidence of either option being selected. 

3.  Therefore, in the absence of evidence to show that he voluntarily accepted training in MOS 42A and was in fact promised in writing that he would receive a bonus for that training and subsequent assignment, it must be presumed that the applicant’s enlistment is defective.

4.  Accordingly, it appears that the only way to correct the many errors that have occurred in this case is to either send the applicant to the training for which he contracted for and to pay him his bonus if he meets the criteria for payment or to process him for a defective enlistment in accordance with the procedures outlined in the applicable regulation.

5.  However, the applicant has the option to decline training or discharge if he so desires and to remain in the MNARNG in his current status without the benefit of a bonus.  However, he must do so in writing and it must be made a matter of record. 

6.  While it is understood that the applicant was promised a bonus in his contract, the bonus was tied to specific conditions and, to date, neither the Army nor the applicant has met the conditions of the contract.  Therefore, until such conditions are met by both the Army and the applicant to fulfill the conditions of the contract, there are no provisions to pay the applicant the bonus requested.  To do so would afford him a benefit not afforded to others in similar circumstances and would be contrary to the intent of the bonus program in question.

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 all Department of the Army records of the individual concerned be corrected by:

* Affording the applicant the training required to fulfill his enlistment contract, provided he meets all qualifications for training, and assigning him to a unit that will qualify him for award of his bonus or
* Processing him for discharge due to an erroneous enlistment agreement or
* Affording the applicant the opportunity to decline either of the above options in writing and being allowed to remain in the MNARNG in his current status without the benefit of a bonus and making such an election a matter of official record.

2.  The Board further determined that the evidence presented was 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 paying the applicant a non-prior service bonus prior to meeting the conditions of his enlistment contract or amending his contract to show entitlement to a different 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)                                         AR20100015121





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ABCMR Record of Proceedings (cont)                                         AR20100015121



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