IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130003041 


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 that his prior service enlistment bonus (PSEB) be terminated without recoupment or that his original enlistment contract be terminated and that he be allowed to receive an Officer Accession Bonus (OAB) in the amount of $10,000.00 instead. 

2.  The applicant states that due to no fault of his own, he was not duty military occupational specialty qualified (DMOSQ) prior to receiving the first installment of his PSEB.  He was not authorized the payment but he was paid by the state's incentives manager who has since been convicted of fraud.  The applicant then completed Officer Candidate School (OCS) and accepted a commission.  He was notified by his state's Officer Strength Manager (OSM) that he was eligible for a $10,000.00 OAB.  However, after being appointed a second lieutenant, the OSM looked in his records and told him that because he already took the $7,500.00 PSEB, he was not eligible for the OAB unless he wanted to pay back the PSEB.  

3.  The applicant further states:

	a.  He enlisted in the California Army National Guard (CAARNG) on 28 May 2008 for 6 years and was offered a $15,000.00 bonus for enlisting in a critical skill, MOS 68W (Health Care Specialist).

	b.  His recruiter told him that he would get half of the bonus "now" and the other half after his third year in the ARNG.

	c.  Upon reporting to his unit, he inquired about attending 68W school and he was told he was on a waiting list because the course was full and that he was going as soon as a spot opened up.

	d.  He received the first installment of his bonus in the amount of $7,500.00 in September 2008 and he believed that it was a normal part of the process.  

	e.  After several months of waiting and requesting to attend 68W school, he was told that he was still on a waiting list.

	f.  In February 2009, he was told that his request to attend 68W school was cancelled because he had not been through the Warrior Transition Course (WTC).  After returning from WTC in June 2009, he was to attend 68W school but was only on a waiting list.  At that point, he decided to seek a commission.

	g.  He contacted the state's OSM and asked about his PSEB.  At no point was he informed about losing the $7,500.00 PSEB he was already paid if he accepted a commission.  He was told that he would qualify for an OAB in the amount of $10,000.00 if he accepted a commission in the Military Police Corps but that he would have to return the $7,500.00 already paid to him.

	h.  He understands that the reason for his bonus termination with recoupment was that he was not DMOSQ at the time of payment; however, a memorandum, dated 10 August 2007, states that a bonus may be terminated without recoupment if a member serves more than 1 year of an enlistment contract before accepting a commission.  He served 21 months as an enlisted member before accepting the commission.  Additionally, he did not take the OAB because he was told that he would have to return the portion of the PSEB already paid and that was just not feasible.  

	i.  Through no fault of his own and without knowledge of incentives payments policies, he believed it was normal to receive the first installment on his PSEB.  He tried in good faith to become DMOSQ for more than a year but he was never sent to MOS training.  He was told false and misleading information regarding his qualifications for the OAB.  He had neither the training nor the expertise in the area of incentives to doubt what they were telling him and he relied upon them as the subject matter experts.

4.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document)
* DD Form 1966 (Record of Military Processing)
* PSEB Addendum
* DD Form 214 (Certificate of Release or Discharge from Active Duty) pertaining to his service in the U.S. Air Force
* DA Form 71 (Oath of Office - Military Personnel)
* CAARNG ITF Documents
* DD Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the U.S. Air Force, the applicant enlisted in the CAARNG on 28 May 2008 for a period of 6 years.  

2.  In connection with his enlistment, he completed a PSEB Addendum which states:  "Upon my enlistment in the ARNG, I am eligible for a PSEB under the Selected Reserve 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 percent installments of $7,500.00, less taxes
* The first 50 percent 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 percent installment will be processed for payment on the 36-month anniversary of the date of enlistment

3.  Section III, paragraph 1b of the PSEB Addendum states:  "My bonus will be paid in two 50 percent installments.  The initial installment of 50 percent will be processed for payment upon enlistment (if not MOS qualified, my initial payment will not be processed until I become MOS qualified).  The second and final installment of 50 percent will be processed for payment on the third year anniversary of my enlistment."

4.  Section V (Termination without Recoupment), paragraph 4 of the PSEB provides for termination of the PSEB without recoupment if the member accepts a commission as an officer or appointment as a warrant officer after serving more than 1 year of the Selected Reserve enlisted incentive contract term.
5.  Evidence shows he was paid the first installment of the PSEB in the amount of $7,500.00 on 2 September 2008.

6.  On 3 February 2010, he was honorably discharged from the ARNG.  On 
4 February 2010, he was appointed in the ARNG as a second lieutenant, MP Branch.  

7.  In a memorandum, dated 6 March 2012, he was informed that the CAARNG had audited his bonus and determined it would be terminated with recoupment.  The incentive type was a PSEB and the recoupment amount was established as $7,500.00.  He was advised that he could be eligible for appeals and/or repayment options and that he would receive additional guidance from the United States Property and Fiscal Office (USPFO) for California.  

8.  In a memorandum, dated 4 January 2013, he was informed that the USPFO for California had taken action to collect the debt.  The USPFO for California cited as the reason for PSEB ineligibility the following:  "SM [service member] did receive an honorable discharge from all prior years of service and there was a prior service enlistment bonus option to come in non-DMOSQ but agree to train in a critical skill.

9.  In the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch of the Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army (HQDA).  This office recommended approval of the applicant's request for termination of his PSEB without recoupment and stated:

	a.  The applicant contracted for a PSEB as listed on his enlistment contract for an MOS-qualified 6-year enlistment in the amount of $15,000.00.  He received the first $7,500.00 installment but accepted an officer commission in the ARNG prior to receiving the second $7,500.00 installment.  At this point, the bonus was terminated without recoupment per regulation.  

	b.  The MOS 68W was authorized under the ARNG's annual Selected Reserve Incentive Program (SRIP) policy but the Soldier did not comply with the terms of the contract because he failed to become MOS qualified prior to payment.  Upon discovery of the irregularity, the ARNG began recoupment actions for the $7,500.00 paid to the Soldier.

	c.  Based on the applicant's submission and available records, the Soldier was a satisfactory participant, served in good faith, and made repeated attempts to become MOS qualified.  When these attempts failed, the Soldier sought to better himself and the CAARNG by becoming a commissioned officer.  Due to the failure of the chain of command, and through no fault of his own, he failed to become MOS qualified.  

10.  The advisory opinion was provided to the applicant to afford him the opportunity to reply to its contents.  He replied and expressed his concurrence with the contents of the advisory opinion.  

11.  There is no evidence indicating the applicant was offered an Officer Accession Bonus in connection with his commissioning in the ARNG.  

12.  An advisory opinion pertaining to the applicant's request for an OAB was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1, HQDA.  The advising official indicated:

	a.  In order to be eligible for the Selected Reserve OAB as a commissioned officer, an individual in the ARNG must meet the HQDA eligibility criteria and be appointed in a critically-short area of concentration (AOC) listed in the current ARNG SRIP announcement in effect on the date the individual applies for officer appointment or before the officer's appointment date.  

	b.  A review of the ARNG SRIP in effect at the time the applicant was  commissioned indicates his AOC, 31A (MP), was not eligible for the bonus.

	c.  The Army G-1 recommends disapproval of the applicant's request because his AOC was not an authorized critical skill for the Selected Reserve OAB.

13.  The advisory opinion was provided to the applicant to afford him the opportunity to reply to its contents.  No response was received.  

14.  A review of the ARNG SRIP Guidance for Fiscal Year (FY) 2010 indicates the applicant's AOC (31A) is not included in the SRIP FY2010 critical AOC/MOS list for commissioned officers.  

15.  Department of Defense (DoD) Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 
2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in:

	a.  section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202; and

	b.  section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following: 

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for termination of his PSEB without recoupment or that his original enlistment contract be terminated and that he be allowed to receive an OAB in the amount of $10,000.00 has been carefully considered.  

2.  He enlisted in the ARNG and was offered a PSEB in the amount of $15,000.00.  The terms of the PSEB required an initial payment of 50 percent upon becoming MOS qualified.  However, he received the initial payment prior to becoming MOS qualified.  He subsequently accepted a commission in the ARNG prior to becoming qualified in MOS 68W.

3.  The evidence of record suggests that he was a satisfactory participant as evidenced by his honorable discharge from the ARNG on 3 October 2010.  The evidence also suggests that his failure to become MOS qualified was not the result of his negligence or misconduct.  Rather, it was as a result of the lack of training seats available, which was clearly beyond his control, and/or his command's negligence.  

4.  Through no fault of his own, he was unable to fulfill the requirements of the PSEB by not becoming MOS qualified.  Based on this fact and the fact that the PSEB Addendum provides for termination of the PSEB, without recoupment, if the member accepted a commission as an officer after serving more than 1 year of the Selected Reserve enlisted incentive contract term, which he did, he should be allowed to retained the portion of the PSEB paid to him.  

5.  In reference to his request to be granted an OAB for his commissioning in the ARNG on 4 February 2010, the ARNG SRIP Guidance for FY 2010 did not include his AOC, 31A, in the critical AOC list for commissioned officers.  Therefore, there is no basis to grant this portion of the requested relief.  

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 State ARNG records of the individual concerned be corrected by showing the appropriate authority approved termination of his PSEB without recoupment, therefore terminating any recoupment action of the first installment in the amount of $7,500.00, and reimbursing him from ARNG funds any monies already collected as a result of this records correction.  

2.  The Board further determined that the evidence presented was 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 the Officer Accession Bonus.



      ____________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)                                         AR20130003041



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ABCMR Record of Proceedings (cont)                                         AR20130003041



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