BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120015371 


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 remission or cancellation of his terminated Non-prior Service Enlistment Bonus (NPSEB) recoupment action.

2.  The applicant states he enlisted in the Army National Guard (ARNG) for the NPSEB in critical skill military occupational specialty (MOS) 11B (Infantryman) in April 2009.  In July 2011, he voluntarily transferred from MOS 11B to MOS 31B (Military Police) for the purpose of securing an active duty for operational support (ADOS) position in violation of his bonus contract which requires termination of the bonus with recoupment.  He further states he believes the termination with recoupment of the bonus is unjust because MOS 31B was a critical skill at the time.  Also, he was unemployed and used the ADOS position for career progression.

3.  The applicant provides:

* an Enlistment Agreement (Guard Annex) with National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E (NPSEB Addendum)) to DD Form 4 (Enlistment or Reenlistment Agreement)
* Missouri ARNG (MOARNG) Orders 294-059

CONSIDERATION OF EVIDENCE:

1.  On 1 April 2009, the applicant enlisted in the MOARNG for a period of 6 years.  He completed his training as an infantryman and continued to serve in the MOARNG.

2.  In connection with the applicant's enlistment, he and his recruiter signed an NGB Form 600-7-1-R-E.

	a.  Section II (Eligibility), paragraph 7, shows the entry:  "I am enlisting into a Critical UIC [Unit Identification Code]/Skill 11B (per SRIP [Selected Reserve Incentive Program] policy) to serve no less than 6 years in a paid drill status for $10,000," followed by his initials.

	b.  Section IV (Payments), paragraph 1, shows the entry:  "I will receive a total bonus of $10,000.00 for the enlistment bonus options in Section II," followed by his initials.

	c.  Section IV, paragraph 7, shows the entry:  "I understand my bonus will be paid in three installments.  First 50% will be processed upon completion of IADT [initial active duty for training] and verification of MOS qualification for which I enlisted or upon sufficient training to be deployable.  The second 20% installment will be processed on the third-year anniversary, and final 30% installment will be processed on the sixth-year anniversary of the Soldier's date of enlistment," followed by his initials.

	d.  Section V (Termination), paragraph 2d, shows the applicant acknowledged his bonus eligibility would be terminated with recoupment for voluntarily transferring out of the critical UIC or critical skill for which the bonus was approved.

	e.  Section VI (Recoupment) shows the amount he was entitled to would be calculated by multiplying the number of full months served satisfactorily during the incentive term by the proportionate monthly dollar amount.  Based on this calculation, overpayment would be recouped or he would be reimbursed if he earned more than he had received.

3.  On 2 November 2009, he completed IADT, and he was awarded MOS 11B.

4.  MOARNG Orders 201-118, dated 20 July 2011, transferred the applicant from an infantry unit to an MOS 31B position in a military police detachment effective 11 July 2011.

5.  On 8 August 2011, MOARNG Orders 216-023, dated 4 August 2011, ordered the applicant to Full Time National Guard Duty – Operational Support 
(FTNGD-OS) for the period 8 August 2011-6 August 2012.

6.  There is no evidence as to whether the State Incentive Manager submitted a request for an exception to policy regarding the termination and recoupment of the applicant's bonus.

7.  A staff advisory opinion was obtained from the Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, dated 2 May 2013, in the processing of this case which recommends denial of the applicant's request.  The opinion states the applicant voluntarily transferred from MOS 11B to MOS 31B on 11 July 2011.  The applicant's NPSEB Addendum clearly states that termination from incentive eligibility with recoupment could occur if the service member voluntarily transferred out of the critical skill for which the bonus was approved.

8.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He provided a memorandum for record, dated 21 May 2013, subject:  Exception to Policy.  He states he was selected for a full-time ADOS position with the Homeland Response Force on 11 July 2011.  The position required him to be assigned to a 70th Troop Command position.  Taking this position allowed him to further his career as an ARNG Soldier.  The 70th Troop Command did not have any available MOS 11B positions for him to be assigned to.  He elected to take an MOS 31B position with the 1175th Military Police Company.  Both 31B and 11B were critical MOS's at the time.  He is currently able to support himself and his current financial obligations.  Prior to accepting the position with the 1175th Military Police Company, he had no source of income other than his 
M-day [mobilization] status (an M-Day member is one who performs weekend drill, but is not on full-time duty).  He believes it is inequitable for the ARNG to penalize him for wanting to advance his career as an MOARNG Soldier.  He requests termination of his NPSEB without recoupment.

9.  A staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 12 June 2013, in the processing of this case which recommends approval of the applicant's request.  The opinion states that upon coordination with NGB-GSE and its attached email, dated 20 May 2013, "the [applicant] enlisted into the bonus MOS of 11B on 1 April 2009.  Both 11B and 31B were critical skills on this date under SRIP policy 07-06, effective 1 March 2009 through 15 June 2010.  However, on 11 July 2011, the [applicant's] contract was terminated citing an unauthorized change in MOS.  NGB-GSE further states that at the time of the [applicant's] MOS change, 31B was not on the critical skill list."

10.  The advisory official further stated that based on the applicant's statement and information provided by the MOARNG, MOS 31B was a critical skill at the time of his initial enlistment and voluntary transfer.  Although the email from NGB-GSE suggests that MOS 31B was not on the critical skill list at the time of the MOS transfer, the fact that the Soldier was not properly informed is no fault of his and he should not be penalized.  The State concurred with this recommendation.

11.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not submit a response.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted for a $10,000.00 NPSEB in critical skill MOS 11B for a period of 6 years.  He voluntarily transferred to MOS 31B.  Therefore, he did not fulfill his contractual agreement.

2.  The evidence shows he served in his bonus MOS 11B for more than 2 years prior to accepting an ADOS position.  He transferred to MOS 31B – which appears was not a critical skill MOS at the time of his MOS transfer – to serve in a full-time position that he apparently could not serve in under his original MOS of 11B.  Accordingly, based on his contract his bonus should have been terminated at the time of his voluntary transfer with recoupment for any unserved portion already paid.

3.  Notwithstanding the NGB advisory opinion supporting relief, as stated by the Office of the Deputy Chief of Staff, G-1, the applicant's NPSEB Addendum clearly states that termination from incentive eligibility with recoupment could occur if the service member voluntarily transferred out of the critical skill for which the bonus was approved.  As such, there is no error.  Further, there is no compelling evidence of inequity and injustice since the applicant would only be required to pay back a pro-rated share of what he had received.

4.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  __X______  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20120015371



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ABCMR Record of Proceedings (cont)                                         AR20120015371



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