IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110010455 


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 he be paid the second installment of his prior service enlistment bonus (PSEB) ($7,500.00) in accordance with his enlistment contract.  
 
2.  The applicant states:

	a.  The Army National Guard (ARNG) failed to honor his contract by denying him the second installment of the enlistment bonus he was promised in his enlistment contract.

	b.  He signed his contract in good faith with the ARNG and with the understanding this was a legal binding contract.  He enlisted in the ARNG in October 2007 and he agreed to dedicate 6 years of faithful service with $15,000.00 as an incentive.  At the time of his enlistment he was told military occupational specialty (MOS) 15V (observation scout repairer) was eligible for the bonus.  

   c.  He completed all the training requirements, he continues to serve in good standing, and is currently deployed in Iraq in MOS 15T (UH-60 helicopter repairer) which was a critical MOS at the time of his enlistment.  In August 2008, he successfully completed the 14-week MOS 15T course, which he had to complete before he could attend his MOS 15V course.  In April 2009, he successfully completed the MOS 15V course and was awarded the first installment of his bonus.  He was scheduled to receive the second installment of his bonus at his 3-year anniversary of enlistment in October 2010.  In November 2010, he checked the status of his bonus and was informed his bonus was under review.  In December 2010, he was told the previous State Incentive Manager had made a mistake by awarding his MOS a bonus and he was going to have to pay back the first installment of his bonus and he would not receive the second installment of his bonus.    

	d.  His appeal to be granted relief of recoupment to allow him to retain the first installment of his bonus was approved but he was still denied payment of the second installment.  The National Guard Bureau (NGB) memorandum cites being "consistent with controlling law and regulation" as a determining factor as disapproval of his bonus.  He argues that breaching a legal binding contract is not "consistent with controlling law and regulation."  He feels he is being punished for another person's mistake.  He has fulfilled all his requirements set forth in his contract to receive the bonus.  He has not personally done anything to be undeserving of his bonus.  

3.  The applicant provides:

* ARNG critical MOS list
* National Guard Bureau (NGB) memoranda, dated 5 April 2011 and        22 March 2011
* Bonus addendum
* DA Form 1059 (Service School Academic Evaluation Report)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 16 July 2004 and 13 August 2008
* DD Form 4 (Enlistment/Reenlistment Document)
* Endorsement from his commander officer
* MOS orders, dated 6 August 2008 and 5 April 2009  

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the U.S. Marine Corps, the applicant enlisted in the Nebraska ARNG (NEARNG) on 29 October 2007 for a period of 6 years.  

2.  His Prior Service Enlistment Addendum, dated 29 October 2007, shows he enlisted with the understanding he was eligible for a PSEB ($15,000.00).  Section II (Eligibility) shows that he was enlisting into an MTOE [Modified Table of Organization and Equipment] unit in critical skill 15V and he agreed to attend formal training and become qualified in his contracted MOS within 24 months of his date of enlistment.  Section III (Bonus Amount and Payments) stated he would receive a total bonus in the amount of $15,000.00 for a 6-year enlistment in a non-critical MTOE unit paid in two 50% installments.  The initial installment of 50% would be processed for payment upon enlistment (if not MOS qualified, his initial payment would not be processed until he became MOS qualified).  The second and final installment of 50% would be processed for payment on the third-year anniversary of his enlistment.

3.  He was ordered to active duty for training on 24 April 2008 and he was released from active duty on 13 August 2008.   

4.  He was awarded primary MOS (PMOS) 15T effective 13 August 2008.

5.  He was awarded PMOS 15V and secondary MOS 15T effective 27 March 2009.  PMOS 15T was withdrawn.

6.  On 22 March 2011, the Chief, Education, Incentives and Employment Division, NGB, disapproved the NEARNG's request for an exception to policy to grant relief from recoupment of payment received as part of the applicant's prior service enlistment bonus.  The memorandum cited:

	a.  in accordance with the ARNG Selected Reserve Incentive Program (SRIP) Guidance for 10 August 2007 – 31 March 2008, Policy 07-06, dated 10 August 2007, and Army Regulation 135-7 (Incentive Programs), paragraph 2-1.3.k.(1), a prior service applicant must enlist into a skill that is identified as eligible for the PSEB, and must be qualified in that skill upon enlistment.  Upon enlistment, the applicant was not qualified in the skill for which he enlisted, and was contracted for the PSEB.  After enlistment, the NEARNG Incentive Manager processed an unauthorized payment in the total amount of $7,500.00.  The NEARNG did not have authority from the Department of Defense, Department of the Army, or NGB to process this payment.  As a result, and consistent with controlling law and regulation, the determination has been made that recoupment of the unauthorized payment of his PSEB is appropriate.

	b.  the personnel policy and management objective of the ARNG SRIP is to enable the ARNG leadership and personnel managers in meeting and sustaining its manpower and readiness requirements by:  stabilizing the ARNG through longer service commitments, supporting high priority and early deploying units, and filling critical skill shortages.  Moreover, it is in the best interest of the U.S. that the ARNG be fiscally responsible in using the limited resources available within the ARNG SRIP only in specific situations where other less costly methods have proven inadequate or ineffective and only as necessary to support unit and skill staffing requirements.  As a result, and consistent with controlling law and regulation, the determination has been made that repayment of the unearned portion of the subject Selective Reserve Incentive bonus is appropriate.     


7.  On 5 April 2011, the Chief, Guard Strength Directorate, NGB, approved the NEARNG's request for an exception to policy to grant relief of recoupment to allow the applicant to retain the amount of his initial payment of $7,500.00.  The memorandum cited:

	a.  In accordance with the ARNG SRIP Guidance for Fiscal Year 2007 (Policy 07-06), dated 10 August 2007, a $15,000.00 prior service enlistment bonus for a critical skill (CS), critical unit identification code was offered at the time of the applicant's enlistment.  He was originally approved for this incentive for MOS 15V which was not on the CS MOS list at the time of his enlistment.  The applicant was paid the initial payment of $7,500.00 and upon processing and verification of eligibility for the second payment of the incentive on his third-year anniversary of enlistment it was determined he was not eligible.

	b.  Based upon substantiating documentation presented and the administrative oversight of the State Incentive Manager, the applicant may retain what he has been paid.  However, he is not authorized any further payments. 

8.  He provided a memorandum, dated 21 April 2011, from his commander in Iraq.  He states:

	a.  The applicant enlisted in good faith for what he understood to be a bonus MOS, he then promptly completed the training requirements, and he has continued to serve in good standing with his Commander. 

	b.  It would be "compounding" injustice should the applicant not be paid the balance of his enlistment bonus.  The applicant enlisted for MOS 15V, and first attended advanced individual training (AIT) for MOS 15T.  He then later attended a 4-week course to earn MOS 15V.  The Critical MOS List has MOS 15T listed as eligible for the bonus when the applicant enlisted into the NEARNG.  He has since been cross-leveled into his unit to deploy as a 15T.  Therefore, the injustice is not just the error in enlisting him into an ineligible MOS.  The compounding injustice is to now have him cross-leveled for deployment in an MOS that was an eligible MOS and he then was trained in as part of that enlistment contract and bonus addendum.  In other words, with this deployment as a 15T, he will more than earn the bonus monies due to him if he had been properly contracted.    

9.  MOS 15T is shown on the ARNG Policy #07-05/07-06 Critical MOS List for the period 16 June 2007 to 31 March 2008.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be paid the second installment of his PSEB in the amount of $7,500.00 per his enlistment contract.

2.  The evidence confirms he enlisted in the NEARNG in October 2007 for a $15,000.00 PSEB (paid in two 50% installments) after he was determined eligible for the bonus by the Army.  He received his first installment of $7,500.00 upon his enlistment.  The second and final installment of 50% would be processed for payment on the third-year anniversary of his enlistment.  It appears a government error was made when Army officials informed him he was eligible for the PSEB since his MOS was not on the Critical MOS List at the time of his enlistment.  

3.  Evidence shows he enlisted for MOS 15V but he attended AIT for MOS 15T.  MOS 15T is listed as an eligible MOS for the $15,000.00 PSEB when he enlisted into the ARNG.  Subsequently, he attended a 4-week course for MOS15V and was awarded PMOS 15V effective 27 March 2009.  

4.  The 5 April 2011 NGB memorandum points out:

* A $15,000.00 PSEB for a critical skill was offered at the time of the applicant's enlistment
* He was originally approved for this incentive for MOS 15V which was not on the Critical MOS List at the time of his enlistment
* He was paid the first installment
* Upon processing and verification of eligibility for the second installment of the incentive on his third-year anniversary of enlistment it was determined he was not eligible
* Based upon substantiating documentation and the administrative oversight of the State Incentive Manager, he may retain the first installment but he is not authorized any further payments    

5.  His commander recommends that relief be granted in the applicant's case.  He contends the injustice is not just the error in enlisting the applicant into an ineligible MOS but the compounding injustice is to now have him cross-leveled for deployment in an MOS that was an eligible MOS and he then was trained in as part of that enlistment contract and addendum. 

6.  The applicant fulfilled the requirements of his enlistment contract and did absolutely nothing wrong.  In view of the facts of this case and based on the 


recommendation of the applicant's commander, it would be appropriate and serve the interest of justice and equity to correct his records and remit payment to him in the amount of $7,500.00.

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 he was eligible for the PSEB and paying him the PSEB due in accordance with the enlistment contract and bonus addendum agreement entered into at the time of his 2007 enlistment in the ARNG, and reimbursement of any amount of the affiliation bonus that has been previously recouped.   Payment of this bonus should come from Army National Guard bonus funds.




      _______ _   _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)                                         AR20110010455



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ABCMR Record of Proceedings (cont)                                         AR20110010455



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