IN THE CASE OF:	  

		BOARD DATE:  3 December 2013

		DOCKET NUMBER:  AR20130002085 


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 cancellation of the recoupment action that requires him to repay his $20,000 Non-Prior Service Enlistment Bonus (NPSEB) for Critical Skill military occupational specialty (MOS) 68W (Health Care Specialist) in the Idaho Army National Guard (IDARNG) and that he be allowed to retain the bonus as an exception to policy (ETP).   

2.  The applicant states:

* he contracted for a $20,000 NPSEB for critical skill 68W
* he did not graduate from training for his contracted MOS, but did graduate from training for critical skill MOS 91D (Power Generation Equipment Repairer) which was previously designated as MOS 52D
* he was told that changing his MOS would not impact his bonus because he had transferred to another critical skill MOS
* he filed an ETP for payment of the first half of his bonus and received payment
* when he requested payment of the second half of his bonus, he was denied and recoupment action for the first half of his bonus was initiated
* he was told the basis for the denial of his bonus was the fact that he did not attain Additional Skill Identifier (ASI) "U2" (Unmanned Aerial Vehicle - Short Range Repair) for MOS 52D
* numerous sources have informed him that there is no ASI "U2" associated with MOS 91D
* he no longer has the $10,000 that he received 3 years ago

3.  The applicant provides:

* an ETP request
* NGB Form 600-7-1-R-E (Annex E to DD Form 4 (Enlistment Bonus Addendum ARNG of the United States))
* a DA Form 4187 (Personnel Action)
* three pages of electronic mail (email)

CONSIDERATION OF EVIDENCE:

1.  The applicant's DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the IDARNG on 4 August 2008 for a period of 8 years in the rank/grade of private/E-1.  

2.  In connection with the applicant's enlistment, he and his recruiter signed a Guard Annex (ARNG Service Requirements and Methods of Fulfillment) to his DD Form 4 on 4 August 2008.  This form shows he specifically enlisted for training in MOS 68W with follow-on assignment to a Troop Program Unit (TPU).

3.  Also in connection with the applicant's enlistment, he and his recruiter signed Annex E (Non-Prior Service Enlistment Bonus Addendum - ARNG of the United States) to his DD Form 4 on 4 August 2008.  This form shows in:

	a.  Section II (Eligibility), paragraph 6, that he was enlisting for a projected vacancy specifically coded for MOS 68W.

	b.  Section II, paragraph 7, the entry, "I am enlisting into a CRITICAL SKILL MOS (emphasis added) under the 6X2 or 8X0 enlistment option and will receive a NPS Critical Skill Bonus (50/50) payment."

   c.  Section III (Payments), paragraph 4, shows his enlistment bonus would be paid as follows:
   
   	(1)  "I will receive a total bonus of $20,000 for the enlistment bonus option above, less taxes.
   
   	(2)  I will receive my first bonus payment of 50% of the total authorized amount entered above, less taxes, when I complete IADT [Initial Active Duty Training], and I am awarded the MOS for which I enlisted.
   
   	(3)  The second and final payment of 50% will be paid on the 36th-month anniversary of my date of enlistment.
   
   	(4)  I understand that I will not receive a payment until all requirements have been met and entitlement has been verified and certified by the proper authority.
   
   	(5)  I have read Section III and understand the contents thereof."

   d.  Section VI (Statement of Understanding - Policies), paragraph 2 (Alcohol and Drug Abuse) contains the entry "I understand that the Army's policy on alcohol and drug abuse is that the Army must prevent alcohol and drug abuse in order to perform its mission to defend the United States, to ensure its combat readiness, and to protect the health and welfare of its Soldiers.  Alcohol involving criminal acts or conduct detrimental to the Army or good order and discipline will also not be tolerated.  If I am identified for either alcohol or drug abuse, appropriate disciplinary and/or administrative action may be taken against me.
   
   e.  Section VII (Statement of Understanding) contains the entry "I have read this entire addendum.  I understand all of the above statements concerning my enlistment bonus.  I understand that this addendum will be void if I do not meet all of the requirements.  No other promises have been made to me in connection with this enlistment bonus addendum."

	f.  Section IX (Certification by Service Representative) shows the enlisting official verified the applicant met the regulatory eligibility requirements and his MOS/unit were currently eligible for an enlistment cash bonus.  No other promises were made to the applicant as a condition of enlistment for an enlistment cash bonus under the Selected Reserve Incentive Program (SRIP).

4.  Department of Defense Military Entrance Processing Station, Spokane, WA, Orders 8217003, dated 4 August 2008, show he was ordered to IADT on 8 April 2009 for the purpose of completing basic combat training at Fort Jackson, SC and advanced individual training (AIT) for MOS 68W at Fort Sam Houston, TX.

5.  The applicant's record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 26 August 2009, which shows he accepted nonjudicial punishment under Article 15, UCMJ for driving while under the influence of alcohol on 1 August 2009.  A Military Police Report shows he was arrested for this offense and detained prior to being released to the control of his unit.

6.  The applicant's record contains a General Officer Memorandum of Reprimand (GOMOR), dated 25 August 2009, which shows the Commanding General, U.S. Army Medical Department Center and School and Fort Sam Houston, TX, reprimanded the applicant for driving while under the influence of alcohol on 1 August 2009.  The applicant's battalion commander recommended, in part, filing the GOMOR in the applicant's Official Military Personnel File (currently known as Army Military Human Resource Record (AMHRR)) because he was being reclassified to another MOS and follow-on commands need to be aware of his past actions.  

7.  The applicant provides email, dated 4 November 2009, which shows the IDARNG Incentive Manager (IM) asked a representative of the National Guard Professional Education Center (NGPEC) "So, if we have a[n] NPS Soldier who fails AIT or has to reclass[ify] for some other reason, can they change MOSs and keep the bonus?  I think you told me as long as the MOS & strength was bonus eligible when he contracted and now, it's fine."  On the same date, the NGPEC representative replied "If they contracted prior to 1 Mar[ch], this is fine.  If they contracted 1 Mar[ch] or after, they must remain in their specific MOS."

8.  His record contains a U.S. Army, Ordnance Center and Schools Diploma which shows he successfully fulfilled the requirements and graduated from the Power Generation Equipment Repairer Course for MOS 91D during the period 21 September 2009 to 15 December 2009.

9.  Headquarters, 116th Heavy Brigade Combat Team, IDARNG, Boise, ID, Orders 013-001, dated 13 January 2010, show he was released from a Health Care Specialist, 68W position in Company C, 145th Brigade Support Battalion (BSB) and transferred to a Power Generation Equipment Repairer, 91D position in Detachment 1, Company B, 145th BSB, effective 13 January 2010.  The orders also indicate he was duty MOS qualified for the 91D position.

10.  The applicant provides email exchanged between the IDARNG IM and a representative of the NGPEC on 20 and 21 April 2010.

	a.  The IDARNG IM stated the applicant had contracted for a critical skills bonus for MOS 68W, but failed out of the course so, he was sent off to another critical skill MOS 52D [91D] with the NGB's approval.  She stated he completed 52D [91D] training on 15 December 2009, but was never moved to a valid vacant position until 10 March 2010 and asked if the order needed to reflect the date the applicant was sent off to 52D training?

	b.  The representative of the NGPEC stated that 52D [91D] must have ASI "U2" in order to be qualified as a critical skill, but there was no indication that the applicant was "U2" qualified.

	c.  The IDARNG IM stated the applicant had contracted before the current critical skill list, which was effective 12 June 2009.  She further stated that 52D was a State critical skill during the period 16 March to 11 June 2009.

	d.  The NGPEC representative then informed the IDARNG IM that the applicant was "good as long as he didn't receive any payments prior to being MOS qualified and placed in the vacant position.”

11.  The applicant's record contains a Personnel Qualification Record - Enlisted, prepared on 17 May 2011, which shows he possessed MOS 91D and was slotted in a 91D position.  This form also shows he did not possess an ASI.

12.  The applicant provides a DA Form 4187, dated 20 September 2011, which was initiated to correct his Enlistment Bonus Addendum by amending Section II, paragraph 6, which showed that he had enlisted for a projected vacancy specifically coded for MOS 68W to show he had enlisted for a projected vacancy specifically coded for MOS 91D.

13.  On 6 October 2011, the Director of Personnel, Idaho National Guard (IDNG) Joint Force Headquarters submitted a memorandum to the NGB requesting an ETP to allow the applicant to retain his NPSEB.  He stated the applicant contracted for a $20,000 NPS Critical Skill Enlistment Bonus as a 68W on 4 August 2008.  The applicant was required to reclassify and selected another qualifying critical skill, 91D.  The Director stated that according to the aforementioned email, NGB approved MOS changes for contracts prior to 1 March 2009.  He added that initial payment was already approved and paid out on 5 May 2010 because the applicant retained eligibility due to Duty MOS qualification in a critical MOS.  In closing, the Director stated approval of this request was in the best interest of the Army, the command, and the applicant. 

14.  On 29 December 2011, the Chief, Guard Strength Directorate, NGB, Arlington, VA, informed the State Incentive Manager, IDARNG that the applicant's request for an ETP was denied and directed the State IM to terminate the incentive without recoupment and no further payment.  He stated the reason for disapproving the ETP was based upon the fact the applicant had contracted for a specific MOS, he was recycled out of training for not meeting course requirements and was reclassified into MOS 52D [91D] which was only a designated critical skill if the ASI of "U2" was assigned.  The applicant only completed training which qualified him as a Power Generation Equipment Repairer and no ASI, therefore taking him out of qualification for the NPSEB Critical Skill Bonus.

15.  On 17 April 2012, the G1, Director of Personnel and Manpower, IDNG Joint Force Headquarters submitted a memorandum to the NGB requesting an ETP to allow the applicant to retain his NPSEB.  He stated the applicant contracted for a $20,000 NPS Critical Skill Enlistment Bonus as a 68W on 4 August 2008.  The applicant was required to reclassify and selected another qualifying critical skill, 91D.  52D/91D was on Idaho's Critical Skill listing on the applicant's contract date and when he reclassified to MOS 91D.  The G1 stated that according to the aforementioned email, NGB approved MOS changes for contracts prior to 1 March 2009.  He added that initial payment was already approved and paid out on 5 May 2010 because the applicant retained eligibility due to Duty MOS qualification in a critical MOS.  In closing, the G1 stated approval of this request was in the best interest of the Army, the command, and the applicant.

16.  On 6 June 2012, the Deputy G1, ARNG, NGB, Arlington, VA, informed the State IM, IDARNG that the applicant's request for an ETP was denied and directed the State IM to terminate the incentive with recoupment.  He stated the reason for disapproving the ETP was based upon the fact the applicant had contracted for a specific MOS, he failed to complete training for his contracted MOS and was reclassified into MOS 52D [91D].  In accordance with Department of Defense Instruction (DoDI) 1205.21 (Reserve Component Incentive Programs Procedures) paragraph 6.8.1, the incentive must be terminated with recoupment.

17.  Army Regulation 135-7 (Army National Guard and Army Reserve Incentive Programs) prescribes the policy and procedures for the administration of the ARNG and the U.S. Army Reserve incentive programs.  Chapter  2 contains guidance on the SRIP.  It states, in effect, that bonus authorization will terminate if the member fails to meet policy requirements.  

18.  DoDI 1205.21, paragraph 6.8.1 provides that a bonus incentive must be terminated with recoupment if a Soldier fails to participate satisfactorily in required training during the entire period of service agreed to, in accordance with the written agreement, unless the failure to participate satisfactorily was due to reason beyond the control of the member (such as death, injury, illness, or other impairment).

19.  Department of the Army Pamphlet 611-21 (Military Occupational Classification and Structure) gives procedures and prescribes the method of developing, changing, and controlling officer, warrant officer, and enlisted military occupational classification structure.  This regulation, in part, shows that ASI "U2" identifies positions requiring Soldiers qualified to repair the Unmanned Aerial Vehicle - Short Range electronic on-board and associated systems.  It also stipulates that ASI "U2" is only for use with MOS 33W (Electronic Warfare/Intercept Systems Repairer).
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be allowed to retain a $20,000 NPSEB for Critical Skill 91D as an ETP has been carefully examined; however, there is insufficient evidence to support this claim.   

2.  Under the provisions of his SRIP bonus addendum, the applicant agreed to enlist under the NPS Critical Skill Enlistment Bonus Program for a total bonus of $20,000 in MOS 68W for a period of 8 years.  When he signed the contract he acknowledged that he understood if he did not qualify for the MOS his bonus agreement would be terminated and the bonus would be terminated and possibly recouped.    

3.  The evidence shows the applicant was arrested for driving while under the influence of alcohol on 1 August 2009 while attending AIT for MOS 68W.  As a result, he failed to complete training and was never awarded his contracted critical skill MOS; therefore, he is ineligible to retain the incentive.  The negative impact of the recoupment action is regrettable.  However, this is the natural result of his failure to complete 68W training due to his own misconduct.  There is neither an error nor an injustice.  

4.  The facts that the applicant completed training for critical skill MOS 91D and that he received conflicting guidance on his eligibility to retain his NPSEB are duly noted.  However, since the catalyst for his MOS reclassification was the result of his own misconduct rather than circumstances beyond his control, he is not entitled to retain the bonus associated with his contracted MOS, 68W.

5.  Nevertheless, it would be in the interest of equity to grant him partial relief by terminating his entitlement to the unpaid portion but cancelling all recoupment actions pertaining to the portion of the bonus he was previously paid.

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 and ARNG records of the individual concerned be corrected by :

	a.  showing he was granted an ETP allowing him to retain the previously-paid (out of ARNG funds) portion of his NPSEB; and

	b.  cancelling all efforts to recoup the previously-paid portion of his NPSEB.

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 his enlistment contract to show he is entitled to retain the NPSEB for obtaining MOS 91D. 




      _______ _  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)                                         AR20130002085





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ABCMR Record of Proceedings (cont)                                         AR20130002085



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