IN THE CASE OF:	

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120008741


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:

	a.  correction of his DA Form 597 (Army Senior Reserve Officers’ Training Corps (ROTC) NonScholarship Cadet Contract) and his National Guard Bureau (NGB) Form 594-1 (Army National Guard (ARNG) Simultaneous Membership Program (SMP) Agreement), to show he contracted as an SMP cadet effective
7 October 2009 versus 28 September 2009;

	b.  cancellation of the recoupment of his non-prior service enlistment bonus that resulted from his incorrect SMP contract date; and

	c.  reimbursement of the amount previously collected from him.

2.  The applicant states:

	a.  he completed more than 1 year of service under his original enlistment contract prior to being qualified to sign his ROTC/SMP contract;

	b.  he was not eligible to sign his ROTC/SMP contract on 28 September 2009, but was told the stamped date did not matter;

	c.  he was not fully qualified for contracting, nor sworn in as a contracted cadet, until 7 October 2009

	d.  the date that appears on his ROTC/SMP contract (28 September 2009) is the date he reviewed the contract with his ROTC Professor of Military Science (PMS);

	e.  the incorrect date on his contract would lead one to believe he had not finished a full year of enlisted service, which would result in the recoupment of the non-prior service enlistment bonus (NPSEB) he received upon enlistment in the Pennsylvania Army National Guard (PAARNG); and

	f.  if this incorrect date was corrected, he would no longer be subject to the recoupment of his bonus.

3.  The applicant provides:

	a.  a self-authored statement, dated 27 March 2012;

	b.  DA Form 597, dated 28 September 2009;

	c.  NGB Form 594-1, dated 28 September 2009;

	d.  a memorandum from the Army ROTC Battalion, North East Pennsylvania, Scranton, PA, subject:  Correction of Contract for (applicant's name and Social Security Number (SSN)), dated 10 September 2010;

	e.  a memorandum from the same battalion, subject:  Further Clarification for the Correction of Contract for (applicant's name and SSN), dated
30 November 2010;

	f.  National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) – NPSEB Addendum, Army National Guard of the United States), dated 1 October 2008;

	g.  a memorandum from Headquarters, 1st Battalion, 109th Field Artillery Regiment, PAARNG, subject:  Request for Exception to Policy to Stop Recoupment of NPSEB Following Termination for Cadet (CDT) (applicant's name and SSN), dated 10 September 2010;

	h.  a memorandum from the same headquarters, subject:  Second Request for Exception to Policy to Stop Recoupment of NPSEB Following Termination for CDT (applicant's name and SSN), dated 30 November 2010

	i.  a memorandum from NGB, Arlington, VA, subject:  Request for Exception to Policy for NPSEB (applicant's name and SSN), dated 13 January 2012; and

	j.  a memorandum from the Adjutant General's Office, PAARNG, subject:  Notice of Indebtedness, dated 27 July 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant currently serves on active duty as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant (2LT)/O-1, in the Chemical Corps.

2.  On 1 October 2008, he enlisted in the PAARNG.  As part of his enlistment process, he contracted for an NPSEB by signing an NGB Form 600-7-1-R-E.  In Section V (Termination Without Recoupment), he acknowledged his understanding and acceptance of the provision that he would be terminated from bonus eligibility, without recoupment, should he became a participant in the SMP/ROTC advanced course or received an ROTC scholarship after having served more than 1 year of his enlisted incentive contract term.

3.  On 24 October 2008, he entered initial active duty for training (IADT), he completed training, and he was awarded military occupational specialty 13B (Cannon Crewmember).  On 15 March 2009, he was released from IADT to his PAARNG unit of assignment.

4.  On 28 September 2009, he signed a DA Form 597 and an NGB Form 594-1.  These forms were accepted and signed by commissioned officers of the Army and are permanently filed in his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

5.  On 28 September 2009, he was discharged from the PAARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35b(3) (Discharge for Enlistment in Another Component of the U.S. Armed Forces), in the rank/grade of sergeant (SGT)/E-5.

6.  On 7 October 2009, he enlisted in the U.S. Army Reserve (USAR) Control Group (ROTC), as a CDT, for the purpose of accepting a Senior ROTC Scholarship Contract.  On this same date, he signed another DA Form 597 that was accepted and signed by his ROTC Battalion commander, a commissioned officer of the Army.  This form is permanently filed in his AMHRR.

7.  On 27 July 2010, he received a notice of indebtedness from the PAARNG, in the amount of $16,944.00.  As justification for his indebtedness, the PAARNG cited the fact he contracted as an SMP CDT on 28 September 2009, prior to the completion of his 1-year service requirement as stipulated in his NPSEB agreement.

8.  On 11 May 2012, he was appointed as a Reserve commissioned officer of the Army, in the rank/grade of 2LT/O-1, in the Chemical Corps.

9.  Orders 095-132-A-8730, issued by Headquarters, U.S. Army Cadet Command, Fort Knox, KY, dated 4 April 2012, ordered him to active duty for a period of 3 years, effective 18 May 2012.

10.  His record contains no documentation that indicates he received either an officer affiliation or accessioning bonus upon his appointment as a commissioned officer.

11.  He provides:

	a.  Two memoranda from officials at the Army ROTC Battalion that states he was ineligible to sign his ROTC and SMP contracts on 28 September 2009, and that he became eligible on 4 October 2009; he was officially contracted and sworn in on 7 October 2009.

	b.  Two memoranda from a commissioned officer of Headquarters,
1st Battalion, 109th Field Artillery Regiment, who requested, on the applicant's behalf, an exception to policy to stop the recoupment of his NPSEB.  These documents state he was ineligible to sign his ROTC and SMP contracts on       28 September 2009, he became eligible on 4 October 2009, and he was officially contracted and sworn in on 7 October 2009.

	c.  A memorandum from NGB, Arlington, VA, dated 13 January 2012, wherein the previous request for ETP, submitted on the applicant's behalf, was denied.  This memorandum notes a Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1 policy memorandum, effective 21 May 2008, that allowed for the termination of enlistment bonuses without recoupment for SMP cadets in cases where the cadet served at least 1 or more days in the losing Selected Reserve (SELRES) status.  The NGB cited its inability to change his recoupment status since his recoupment action had already begun; however, it referred him to the Army Board for Correction of Military Records (ABCMR) for relief.

12.  Department of the Army, Office of the Deputy Chief of Staff, G-1
(DAPE-MPA), memorandum, dated 17 April 2009, grants the authority to cancel recoupment actions regarding Reserve Component (RC) Soldiers in a bonus status who enter an Active Component (AC), Active Guard Reserve (AGR), or officer status.  Paragraph 3d of this memorandum states, "effective 21 May 2008, SELRES members who become simultaneous members of an authorized officer commissioning program or who accept an immediate appointment as an officer in any Military Department who is NOT receiving an officer affiliation/accessioning bonus from the gaining Military Department will have their enlistment/
reenlistment/affiliation bonus terminated without recoupment as long as they serve 1 or more days in the losing SELRES status (i.e. 1 or more days on or after the effective date of the contract).  The previous 12 months’ SELRES membership rule is eliminated for these Soldiers."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his DA Form 597 and NGB Form 594-1, to show he contracted as an SMP cadet effective 7 October 2009 versus
28 September 2009; cancellation of the recoupment of his NPSEB that resulted from his incorrect SMP contract date; and reimbursement of the amount previously collected from him.

2.  The evidence of record shows he signed his ROTC and SMP contracts on
28 September 2009; however, Army ROTC Battalion officials have since stated he was ineligible to do so on that date, and he executed a second, legitimate ROTC contract on 7 October 2009 after gaining eligibility.

3.  Regardless, the Army G-1 policy memorandum of 17 April 2009, effective
21 May 2008, removed the requirement to serve for 1 year to qualify for termination without recoupment.  When considering the updated Army G-1 policy, he met the criteria regardless of contract date.  Accordingly, the correction of his DA Form 597 and NGB Form 594-1 is unnecessary.

4.  In view of the foregoing, the applicant is entitled to retain the bonus he received when he enlisted in the PAARNG and that the bonus is not subject to recoupment.  As such, his records should be corrected to stop further recoupment action and return to him the bonus money that has been recouped.

5.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 to show recoupment action on his enlistment bonus was cancelled, and by showing that all subsequent judgments and collection actions taken based on the DFAS debt were in error.

2.  The Board further determined that the evidence presented is 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 correcting the DA Form 597 and NGB Form 594-1 contained within his AMHRR (the version of each form signed on 28 September 2009).





      _______ _   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)                                         AR20100020016



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ABCMR Record of Proceedings (cont)                                         AR20120008741



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