IN THE CASE OF:  

		BOARD DATE:  12 September 2013

		DOCKET NUMBER:  AR20120021706


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, correction of his records to show he is entitled to the Prior Service Enlistment Bonus (PSEB) he contracted for following his enlistment in the Virginia Army National Guard (VAARNG).

2.  As a secondary issue, the applicant requests correction of his records to show he is entitled to the Selected Reserve Montgomery GI Bill (SR-MGIB).

3.  The applicant states his PSEB was never paid.  A pro-rated portion of his PSEB is due to him, in the amount of $6874.89 based on the time he served in the VAARNG.  For over 3 years he has tried to get his bonus paid; however, he has been unsuccessful.  He concludes by stating he was medically discharged due to service-connected injuries, and per his bonus addendum, he is entitled to a pro-rated portion of his PSEB since separation was due to no fault of his own.

4.  The applicant provides numerous documents in support of his request, organized into separate packets numbered 1 through 4 as follows:

   a.  Packet 1 of 4:

* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), for the period ending 4 February 2011
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Orders D164-21, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, dated 13 June 2011
* a memorandum for the Adjutant General Texas Army National Guard (TXARNG), from the USAPDA, dated 13 June 2011
* a PDA Service Time Worksheet
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 18 July 2011
* DD Form 827 (Application for Arrears in Pay)
* an extract of a Defense Finance and Accounting Service website, titled "Submit a Claim"
* an extract document detailing his pro-rated bonus entitlement

   b.  Packet 2 of 4, consisting of an 8-page chronology and numerous emails documenting his attempts to resolve his contract term and to obtain documentation showing his qualification in the military occupational specialty (MOS) in which he enlisted.

   c.  Packet 3 of 4:

* NGB Form 590 (Statement of Understanding of Reserve Obligation and Responsibilities), dated 14 November 2008
* DA Form 5435-R (Statement of Understanding – The SR MGIB), dated 14 November 2008
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 15 November 2008
* two copies of a DA Form 4187 (Personnel Action), dated 4 February 2009, which shows he requested the term of his enlistment contract be amended from 1 year to 6 years so that he could receive a PSEB
* NGB Form 600-7-6-R-E (Annex X to DD Form 4 – PSEB Addendum – Army National Guard of the United States (ARNGUS)), dated 
10 February 2009
* additional email
* DD Form 93 (Record of Emergency Data)
* SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certificate)
* Department of the Treasury, Internal Revenue Service (IRS) Form W-4 (Employee's Withholding Allowance Certificate), for tax year 2008
* Standard Form (SF) 1199A (Direct Deposit Sign-Up Form)
* DD Form 2005 (Privacy Act Statement – Health Care Records)
* Orders 076-044, issued by the VAARNG, dated 17 March 2009
* Orders 056-849, issued by the South Carolina ARNG (SCARNG), dated 25 February 2010
 
   d.  Packet 4 of 4, consisting of numerous personnel and training qualification documents.

CONSIDERATION OF EVIDENCE:

1.  On 15 November 2008, following previous enlisted service in the U.S. Marine Corps, Regular Army, and ARNG, the applicant enlisted in the VAARNG for a 
1-year term.  On 14 November 2008, in preparation for his enlistment, he signed a DA Form 5435-R, wherein he acknowledged the program requirements vis-à-vis the SR-MGIB.

2.  On 4 February 2009, he completed a DA Form 4187, wherein he requested amendment of his DD Form 4, to show he enlisted for a 6-year term so that he would qualify for a PSEB.  His DA Form 4187 was signed by the Deputy G-1 of the VAARNG, who annotated the bottom of the DA Form 4187 indicating the request was approved.

3.  On 10 February 2009, he completed an NGB Form 600-7-6-R-E, which was signed by an official of the VAARNG; however, no bonus control number (BCN) is listed in the appropriate block.  He signed the annex, thereby affirming the statement, "Upon my enlistment in the ARNG, I am eligible for a PSEB under the SR Incentive Program (SRIP) if I meet the following criteria:"  

* I have completed not more than 16 years of total military service
* I am qualified in and hold the primary MOS for which I am enlisting and hold the rank/grade of the required grade of the position
* I am not enlisting into an excess position or a Title 10 or Title 32 Active Guard Reserve tour
* I have received an honorable discharge for all periods of prior military service
* I will receive a total bonus payment in the amount of $15,000.00 for a
6-year enlistment; to be paid in two 50% installments of $7,500.00, less taxes
* The first 50% installment will be processed for payment upon enlistment if I am already MOS qualified for the position for which I am enlisting
* The second and final 50% installment will be processed for payment on the 36-month anniversary of the date of enlistment

4.  Section III, paragraph 1a of the annex states the bonus will be paid in two
50 percent (%) installments – the initial installment of $7,500.00 will be processed for payment upon enlistment and the second and final installment of $7,500.00 will be processed on the third-year anniversary of enlistment.

5.  Orders 076-044, issued by the VAARNG on 17 March 2009, transferred him to the SCARNG, effective 17 March 2009.

6.  On 12 January 2010, he completed Phase 1 (of 3) of the MOS 91B (Wheeled Vehicle Mechanic) qualification course.

7.  Orders 056-849, issued by the SCARNG on 25 February 2010, transferred him to the TXARNG, effective 4 February 2010.

8.  On 21 July 2010, he completed Phase 2 (of 3) of the MOS 91B qualification course.

9.  His record is void of any evidence that shows he completed the third and final phase of the MOS 91B qualification course.  He provides copies of email that shows he attempted to enroll in a Phase 3 class that began immediately after the completion of the Phase 2 class he attended; however, due to a lack of available seats and the number of other Soldiers in a "wait" status, he was not able to attend. 

10.  On 1 June 2011, he underwent a PEB, wherein he was found unfit for further service and given a 20% disability rating.  The PEB recommended that he be separated from service with severance pay.

11.  Orders D164-21, issued by the USAPDA on 13 June 2011, discharged him from the ARNGUS, effective 18 July 2011.  His NGB Form 22 shows he was discharged on that date, under the provisions of National Guard Regulation   600-200 (Enlisted Personnel Management), after completing 2 years, 8 months, and 4 days of service during this most recent period of enlistment.

12.  On 7 February 2013, an advisory opinion was obtained from an official within the Incentives and Budget Branch of the Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  The advisory official recommended approval of the applicant’s request.  This official stated:

* the applicant enlisted on 15 November 2008 for a 1 year term with no incentives
* on 4 February 2009, the applicant executed a DA Form 4187 to revise his enlistment from 1 year to 6 years and added the PSEB for MOS 63B (91B) 
* the PSEB Annex states he had up to 24 months from the date of enlistment to become qualified in the MOS in which he enlisted 
* the applicant became qualified within this timeframe; however, the State failed to publish an order awarding him the MOS
* a second administrative error occurred when the MGIB form was not completed upon revision of his contract
* on 18 July 2011, the applicant was honorably discharged due to a service-connected injury

13.  On 7 February 2013, the applicant was provided a copy of the advisory opinion.

14.  On 12 February 2013, the applicant concurred with the advisory opinion. 

15.  National Guard Regulation 600-7 (Selective Reserve Incentive Programs), chapter 2, paragraph 2-5, provides that enlistment bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by state policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

16.  Title 10, U.S. Code (USC), Section (§) 1606 (10 USC § 1606) provides for the MGIB-SR program, enacted by Congress on 1 July 1985 to attract high-quality men and women into the Reserve component of the Armed Forces.  It establishes eligibility for benefits under this program if the following requirements are met:

a. Incur a 6-year SR Obligation.

b. Complete IADT (Initial Active Duty for Training).

   c. Maintain SR Status by serving in a drilling SR unit and remain in good standing.

   d. Complete High School by obtaining a high school diploma or equivalency certificate before making application for benefits.

17.  Further, 10 USC §1606 provides that the Reserve Components determine eligibility for benefits under the MGIB-SR.  The Department of Veterans Affairs (VA) does not make decisions about eligibility and cannot make payments until the Reserve Component has determined eligibility and notified the VA.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he is entitled to the PSEB and MGIB-SR was carefully considered.

2.  The evidence of record confirms the applicant initially enlisted in good faith for a period of 1 year; however, that term was later amended to 6 years and approved by the Deputy G-1 of the VAARNG.  

3.  After his extension was approved, he signed a PSEB Addendum, in which the ARNG promised to pay him a $15,000.00 PSEB, if he met the qualifications.  The terms of the PSEB required an initial payment of $7,500.00, processed for payment upon enlistment; however, there is no evidence that paperwork was ever processed for payment or that it was received by the applicant.  

4.  The applicant was attempting to become MOS qualified in accordance with the terms of his PSEB Addendum; however, due to a lack of available school quotas and the physical limitations that ultimately resulted in his discharge, he was unable to complete the third and final phase of his MOS qualification course prior to his separation.  

5.  Through no fault of his own, the applicant was unable to fulfill the requirements of the PSEB; however, he should not be penalized for the injuries that resulted in his discharge for physical disability.  Additionally, he was entitled to an initial bonus payment, and it was only due to negligence on the part of the ARNG that he did not receive that payment.  He is entitled to that payment now.  

6.  With respect to the MGIB-SR, the evidence of record shows the applicant signed a DA Form 5435-R for the MGIB-SR, and that form was signed and certified by a Recruiting and Retention NCO.  Accordingly, he is entitled to participate in the MGIB-SR and to correction of his record to show this.

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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

* amending his DA Form 5435-R to show he signed his MGIB-SR Statement of Understanding on 4 February 2009, the date his enlistment extension was approved
* showing he was entitled to the first payment of his PSEB
* paying him from Army National Guard funds the first installment of his PSEB as a result of the above correction




      _______ _  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)                                         AR20100024747



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ABCMR Record of Proceedings (cont)                                         AR20120021706



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