IN THE CASE OF:	  

		BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120019631 


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 of a debt resulting from payment of a bonus based on the extension of his enlistment contract and subsequent separation from the Missouri Army National Guard (MOARNG).

2.  The applicant states he was under the impression that he was discharged, not being counted as unexcused.  He further states he was assisting his mother who was being treated for breast cancer while also caring for his disabled sister while his mother recovered from chemotherapy treatment. 

3.  The applicant provides a letter and a 3-page account statement. 

CONSIDERATION OF EVIDENCE:

1.  The available evidence shows the applicant enlisted in the MOARNG for a period of 8 years on 31 October 2000.

2.  His record contains a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) which shows he voluntarily extended his 31 October 2006 separation date in the MOARNG for a period of 6 years on 5 February 2006.

3.  Section II (Eligibility) of the applicant's National Guard Bureau (NGB) Form 600-7-3-R-E contains his initials acknowledging he was reenlisting or extending for 6 years and he would receive a bonus of $15,000.00.  

4.  Section V (Termination) contains the statement:  "I understand I will be terminated from bonus eligibility with recoupment if I become an unsatisfactory participant by accumulating 9 unexcused absences within a 12 month period.  Termination and recoupment will take effect on the date of the 9th unexcused absence." 

5.  Section VII (Statement of Understanding) of his NGB Form 600-7-3-R-E shows the applicant authenticated this form by placing his signature acknowledging that he read and fully understood each statement on this form and that his questions were satisfactorily answered.  

6.  The applicant's record contains separation paperwork and associated documents which show his unit repeatedly attempted to contact him by phone and certified mail with regard to the numerous unexcused absences he accumulated beginning in May 2011.

7.  The applicant's record contains a Memorandum for Record, issued by his commander, dated 15 September 2011, which states "[the applicant] was notified via certified letters and phone calls with the Unit Administrative Noncommissioned Officer, that he was being processed for discharge due to Unsatisfactory Participation.  [The applicant] has acknowledged the fact that although he went about getting out of the MOARNG in the wrong way, overall he is pleased with the end result."

8.  The applicant's record contains several documents pertaining to his discharge packet and request for orders.  Two separate documents indicate the applicant was terminated for unsatisfactory performance with recoupment of $3,125.00.

9.  On 10 November 2011, the applicant was discharged from the MOARNG for unsatisfactory participation.  The NGB Form 22 (Report of Separation and Record of Service) he was issued at the time shows he completed 11 years, and 10 days of net service.  Item 18 (Remarks) contains the statement "//EXTENSION/REENLISTMENT BONUS EFFECTIVE 20060205.  TERMINATED 20111110, WITH RECOUPMENT PER ORDER #314-128, DATED 20111110//."  Item 23 (Authority and Reason) of this form shows the entry "Unsatisfactory Performance." 

10.  The applicant provides a letter and account statement which appears to support his claim that he has a developmentally disabled sibling and a mother who underwent treatment for breast cancer.


11.  During the processing of this case, on 3 January 2013, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended disapproval of the applicant's request to cancel his debt related to his bonus based on his enlistment contract extension and subsequent separation from the MOARNG since it was clear the applicant was an unsatisfactory participant.

12.  On 3 January 2013, a copy of 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 respond.

13.  Army Regulation 135-7 (Incentive Programs) establishes a single reference for incentives authorized within the ARNG and the Army Reserve.  It states, in pertinent part, that a Soldier’s eligibility for bonus or loan repayments based on Selected Reserve service will terminate on release from the Selected Reserve and transfer or reassignment to the Individual Ready Reserve (IRR).  Recoupment is not prescribed if the transfer or reassignment to the IRR is a direct result of unit inactivation, reduction in over-strength, reduction in force, or unit relocation.  

14.  Paragraph 2-8 of Army Regulation 135-7 prescribes the recoupment conditions.  It states, in pertinent part that recoupment of bonus payments will be started by the unit commander when entitlement to such incentive is terminated based on the following reasons:

	a.  Unsatisfactory participation.

	b.  Moves to a non-bonus unit or military occupational specialty (MOS) or is reclassified in an MOS other than that for which contracted.  Recoupment is not authorized if the Soldier is moved to another unit or MOS for normal career progression, when retention of bonus entitlement is authorized, or when the move has been approved by the Chief, Army Reserve.

	c.  Accepts a permanent civilian position where membership in the Selected Reserve is a condition of employment before 6 months of the enlistment term of service has been served.

	d.  Separation from enlisted status in a Selected Reserve unit of the U.S. Army Reserve for any reason unless due unit inactivation, reorganization, conversion, relocation, reduction of over-strength, or reduction in force; acceptance of immediate appointment as an officer in the Ready Reserve after   1 year or more of the enlistment term has been satisfactorily served; becoming an assigned member of Control Group (Reserve Officers' Training Corps); death, injury, illness, or other impairment not the result of own misconduct; involuntary order to Entry on Active Duty in the Active Army (accessed to the strength accountability of the active military service of the Army); entry on an authorized period of non-availability; or entry on active duty or full time National Guard in an Active/Reserve Guard status.

15.  Paragraph 2-9 of Army Regulation 135-7 describes the settlement of accounts.  It states in pertinent part that enlistment bonus recoupment or balance due amounts will be calculated as follows:

	a.  Multiply the number of months served satisfactorily during the term for which the incentive was authorized by the proportionate monthly dollar amount. (The proportionate monthly dollar amount will be determined by dividing the total authorized enlistment bonus amount by 72 months); 

	b.  Subtract that amount from the total bonus paid to the Soldier to date (initial plus any later payments); 

	c.  If the calculation indicates overpayment to the Soldier, that amount will be recouped; and 

	d.  If the calculation indicates the Soldier has earned more than he or she has been paid to date on the same pro–rata basis, the difference will be paid in a final installment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 4 and its addenda established a contractual agreement between the applicant and the Army that he would receive a bonus in connection with his extension and service.  

2.  The applicant's bonus debt did not arise out of an erroneous payment, since the payment was proper when made.  Furthermore, it is clear that the Army lived up to its promise by paying the applicant the entire $15,000.00 bonus as agreed in the contractual agreement.  

3.  There is no indication or evidence in the available records and the applicant did not provide sufficient evidence that shows what made him think he had been discharged.  It appears his commander did contact him prior to his discharge and informed him of the reason for discharge.

4.  The termination of the contractual agreement terminated any entitlements to the bonus.  It appears the Army waived recoupment of monies already received by the applicant for the number of months he served under the agreement.  Therefore, the applicant should not benefit from any entitlement he did not earn.

5.  In view of the foregoing, he is not entitled to 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)                                         AR20120019631



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ABCMR Record of Proceedings (cont)                                         AR20120019631



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