IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120017503 


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, in effect, termination of recoupment of a $20,000 Enlistment Affiliation Bonus (EAB).

2.  The applicant states:

* she was released from active duty due to pregnancy and was advised and recruited to remain enlisted for the EAB when she originally wanted to join the Army National Guard (ARNG) as an officer 
* she was advised by the ARNG recruiter she was eligible for the prior service bonus even though she had a reentry code of 3 and was being released from active duty (REFRAD) due to pregnancy
* at the time of her REFRAD, she had a bachelor's degree and originally wanted to go to officer candidate school (OCS) with the ARNG
* she took the bonus on the advice of her recruiter and for the good of her family
* she received a recoupment letter 6 years after her REFRAD stating she owed the ARNG the full bonus due to the fact the second half of the bonus was given after she accepted an appointment into the Chaplains Program
* she held onto the money for 6 months while waiting for the ARNG to take it back in 2009, but she never heard anything from them
* she is a single parent with 2 children and is about to declare bankruptcy since she cannot pay her current bills, let alone $20,000
* she joined the military as an enlisted Soldier 6 years ago just for the bonus and for nothing else
* she signed a new 3-year contract with the Army as an enlisted Soldier and is trying to attend OCS
* she should not be held responsible for the full amount of the recoupment
* she does not understand why the bonus was offered, put in her contract, and paid in the first place or processed as ineligible in the last 6 years
* she respects the fact that errors were made, but she is not at fault 

3.  The applicant provides:

* self-authored letter to the Iowa Army National Guard (IAARNG), dated 16 March 2012
* Enlisted Affiliation Bonus (EAB) Addendum, dated 24 April 2006
* Orders Number 56-404, Headquarters, IAARNG, Office of the Adjutant General, Johnston, IA, dated 25 February 2009

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 27 June 2003, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP).  On 26 May 2004, she was discharged from the USAR DEP and she enlisted in the Regular Army on 27 May 2004.  She completed training and was awarded military occupational specialty 56M (Chaplain Assistant).

3.  On 27 December 2005, the applicant was placed on a physical profile due to pregnancy.  She had an estimated delivery date of 29 July 2006.

4.  On 20 January 2006, the applicant requested to remain on active duty until 27 May 2006.  


5.  A DA Form 4187 (Personnel Action), dated 9 March 2006, shows the applicant requested separation as soon as possible due to pregnancy.  She acknowledged her service would be characterized as honorable and she understood that if she had not completed her statutory service obligation she might be transferred to the IRR. 

6.  On 4 April 2006, the separation authority approved the applicant's request and directed that she be issued an Honorable Discharge Certificate and transferred to the Individual Ready Reserve (IRR) to complete her statutory service obligation.

7.  On 24 April 2006, the applicant enlisted in the Nebraska Army National Guard (NEARNG) for a period of 6 years.  In conjunction with her enlistment, she executed a $20,000 EAB Addendum in return for a 6-year commitment.  

8.  The applicant's EAB Addendum states in Section VIII (Termination) that the following will be cause for termination; however, recoupment action will not be exercised:

	a.  Unit transition, reduction of over strength, or reduction in force and reassignment is refused; or 

	b.  Acceptance of appointment as a commissioned officer or warrant officer after  having served more than 1 year in a Selected Reserve unit under this agreement; or

	c.  Death, injury, illness, or other impairment not the result of my own misconduct; or

	d.  Involuntary order to extended active duty in the Active Army; or

	e.  As a participant in the Army Reserve Drill Sergeant Program; as an instructor, or linguist, and voluntarily transfer to a position other than the position in which contracting.

9.  On 27 May 2006, the applicant was honorably discharged (from the Regular Army). Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 8 (Pregnancy).  Her DD Form 214 also shows:

* she completed 2 years and 1 day of creditable active military service
* she was subject to active duty recall, muster duty and/or annual screening
* she had not completed her first full term of service
* she was eligible for prenatal, delivery, and postnatal care in designated military facilities 
* she was transferred to an ARNG unit

10.  A memorandum from the Operations Noncommissioned Officer, Recruiting and Retention Command, NEARNG, Lincoln, NE, dated 15 August 2006, shows:

* the applicant contracted into the ARNG with a 6-year $20,000 Affiliation Bonus (on 24 April 2006)
* the State Incentive Manager (IM) discovered she did not have the proper separation program designation (SPD) code to receive the bonus
* the applicant's recruiter from Fort Bragg said he was told she was going to be given the correct SPD code to receive the bonus upon discharge, but this did not happen
* the applicant felt her 6-year obligation was erroneous and wanted to be discharged from the ARNG

11.  Records show the applicant signed an undated statement requesting discharge due to an erroneous enlistment.  She stated she was promised a $20,000 bonus, a $20,000 student loan repayment, and a GI Bill kicker.

12.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows:

* the applicant enlisted in the NEARNG on 28 May 2006
* she completed 2 months and 18 days net service this period
* she was discharged on 15 August 2006 under the provisions of National Guard Regulation 600-200 for an erroneous enlistment or extension
* she was transferred to the USAR Control Group (Reinforcement)

13.  On 31 August 2006, the applicant enlisted in the NEARNG in the 56M MOS for a 6-year period.  In conjunction with her enlistment, she signed the following Annexes to her DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States):

* Annex A  (Enlistment/Reenlistment Agreement – Army National Guard)
* Annex K (Montgomery GI Bill Kicker/Incentive Addendum)
* Annex S (Student Loan Repayment Program Addendum)
* Annex X (unavailable) (Prior Service Enlistment Bonus (PSEB) Addendum – ARNG of the U.S.)

14.  Annex X entitled the applicant to a $15,000 PSEB.

15.  The applicant's Master Military Pay Account (MMPA) maintained by the Defense Finance and Account Service (DFAS) shows the applicant received bonus pay for 72 months with a start date of 31 August 2006.  The applicant was paid as follows:

* $5,000 on 29 September 2006
* $5,000 on 30 September 2006
* $10,000 on 20 September 2009

16.  The applicant's MMPA also shows no debt has been established either on the MMPA or Defense Debt Management System.

17.  An NGB Form 22-5 (Addendum to DD Form 4 – Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard), dated and effective 10 January 2009, shows:

* the applicant agreed to fulfill all prior contractual agreements on her Interstate Transfer
* she enlisted in the Iowa Army National Guard (IAARNG) in the grade/rank of specialist/E-4 in the 56M MOS

18.  Orders issued by Headquarters, IAARNG, Office of the Adjutant General, Johnston, IA, dated 25 February 2009, show the following:

* Orders Number 056-403 honorably discharged the applicant from the ARNG and as a Reserve of the Army effective 19 February 2009
* Orders Number 065-404, extended temporary Federal recognition to her as a 2LT with an effective date of 20 February 2009

19.  Special Orders Number 69 AR, NGB, Washington, District of Columbia (D.C.), dated 26 March 2009, shows the applicant's permanent Federal recognition appointment date as a 2LT was effective on 20 February 2009. 

20.  Orders Number 245-010, Headquarters, IAARNG, Office of the Adjutant General, Johnston, IA, dated 2 September 2010, shows the applicant was promoted by the State to 1LT with an effective date of 20 August 2010. 

21.  Orders Number 237-014, Headquarters, IAARNG, Office of the Adjutant General, Johnston, IA, dated 25 August 2011, honorably discharged the applicant.

22.  Orders Number 027-006, Headquarters, IAARNG, Office of the Adjutant General, Johnston, IA, dated 27 January 2012, revoked Orders Number 237-014, dated 25 August 2011. 

23.  On 16 March 2012, the applicant submitted an ETP to retain her $20,000 EAB.  

24.  On 8 May 2012, the applicant was honorably discharged and on 9 May 2012, the applicant enlisted in the NEARNG in the rank/grade of specialist/E-4 for a 3-year period. 

25.  On 23 June 2012, the Deputy G1, NGB, denied her request and stated:

   a.  The State IM will terminate the incentive with recoupment.

	b.  The applicant was not eligible for the EAB due to the separation code she received from the Active Component.  She accepted a commission on 9 February 2009, prior to receiving her final payment on 31 August 2009.

	c.  In accordance with Title 37, U.S. Code, section 308c(g) and Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedures), paragraph E7.1.8.1, the incentive must be terminated with recoupment effective 9 February 2009.

26.  The applicant's Army Military Human Resource Record contains a divorce decree which shows:

* the applicant's maiden name was restored
* both she and her ex-husband were well aware soon after receipt of her $20,000 EAB that there was a likelihood that the monies would have to be paid back because they were erroneously given

27.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) prescribes policies and procedures for the administration of the ARNG of the United States incentive programs.  This regulation defines a contractual obligation as a period of military service for which a Soldier enters into a voluntary contract.  It further states that, effective 1 June 1984, an 8-year military service obligation was incurred upon initial enlistment into the armed forces by reason of law.  A statutory obligation may only be terminated before 8 years by reason of “discharge” from an armed force and the Reserve of the armed force.  There are two types of termination of entitlements and eligibility for the enlistment bonus defined in this regulation: termination with recoupment and termination without recoupment.  Paragraph 2-8 of this regulation describes termination without recoupment.  Paragraph 2-9 requires entitlement and eligibility for the enlistment bonus be terminated with recoupment effective the date the Soldier is separated from the ARNG for any reason, unless due to death, injury, illness, or other impairment not the result of own misconduct.

28.  In accordance with Office of the Under secretary of Defense memorandum, dated 18 September 2007, titled: Repayment of Unearned Portions of Bonus, Special Pay, and Educational Benefits or Stipends, the Service Secretary may determine, on a case by case basis, that repayment of any unearned bonus will not be required (any unpaid portion of a pay or benefit will not be paid) if it is determined that such payment would be contrary to personnel policy or management objectives, against equity and good conscience, or contrary to the best interests of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for termination of recoupment of her $20,000 EAB was carefully considered. 

2.  By regulation, in order to qualify for an affiliation bonus, a member must have completed an active duty tour in the Regular Component, AGR status, or another Armed Force, and he/she must have been eligible to remain on active duty by reenlisting in the component to which he or she was assigned at the time of his/her last REFRAD.

3.  The evidence of record shows that the 24 April 2006 enlistment for which the applicant contracted the EAB was deemed an erroneous enlistment.  

4.  Nevertheless, on 31 August 2006, the applicant enlisted in the NEARNG and signed a prior service agreement entitling her to $15,000 bonus.  However, this agreement is not available and the applicant does not provide a copy.

5.  For reasons unknown, between 29 September 2006 and 20 September 2009, the applicant was paid the $20,000 EAB.  Given her 24 April 2006 enlistment was the primary criteria for eligibility for the affiliation bonus, it would not be appropriate or serve the interest of all those who faced similar circumstances to waive this requirement and/or to grant the requested relief as an exception to policy.

6.  In view of the above, there is no basis for granting the requested relief. 



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 that 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)                                         AR20120017503



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ABCMR Record of Proceedings (cont)                                         AR20120017503



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