BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130003933 


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 record to show he has a valid Montgomery GI Bill (MGIB) Kicker Incentive Addendum.  

2.  He states his recruiter lost his MGIB Kicker Incentive Addendum.  After 2 years of fighting with the State of California's recruiting section to locate the contract they had lost, they acknowledged their mistake and issued him a new backdated contract so he could receive his incentive.  Once he submitted the contract, the California Army National Guard (CAARNG) refused to honor it.  They stated it was illegal to backdate a military document.  As such, he needs this Board to approve the backdated contract so he can receive the incentive.  The gross negligence of a recruiter and the failure of the CAARNG do not override Soldier welfare and contractual obligations.  

3.  He provides:

* self-authored statement
* National Guard Bureau (NGB) Form 5435 (Annex K to DD Form 4 (Enlistment/Reenlistment Agreement - Armed Forces of the United States) - MGIB Kicker Incentive Addendum)
* e-mail 





CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the U.S. Air Force (USAF) Reserve, USAF, U.S. Marine Corps (USMC) Reserve, USMC, and CAARNG.  He was honorably discharged from the CAARNG on 1 May 1991.  The NGB Form 22 (Report of Separation and Record of Service) issued when he was discharged from the CAARNG did not show his military occupational specialty (MOS).

2.  A DD Form 4 shows that, on 13 September 2007, he enlisted in the CAARNG for a period of 6 years as a specialist/E-4.  Section B (Agreements) of the DD Form 4 shows additional details of his enlistment were included in Annexes A, X, and L.

	a.  An NGB Form 21 (Annex A - DD Form 4 - Enlistment/Reenlistment Agreement - Army National Guard (ARNG)) shows, in part, he understood he would undergo training in MOS 31B (Military Police).  

	b.  An NGB Form 600-7-5-R-E (Annex L to DD Form 4 - Student Loan Repayment Program Addendum - ARNG of the United States (ARNGUS)) shows he initialed the paragraph indicating he held the primary MOS (PMOS) for which he was enlisting and that he was enlisting for MOS 31B.  

	c.  An NGB Form 600-7-6-R-E (Annex X to DD Form 4 - Prior Service Enlistment Bonus Addendum - ARNGUS) shows he agreed he would serve a 
6-year enlistment in the NGB-approved critical skill of 31B.  He indicated he was MOS-qualified for the position as of the date of his enlistment.

3.  His record is void of documentation showing an NGB Form 5435 was completed when he enlisted in 2007.  

4.  On 21 November 2007, the CAARNG issued an NGB Form 22A (Correction to NGB Form 22) correcting the NGB Form 22 he was issued in 1991 to show he held MOS 31B.  

5.  On 25 February 2009, Joint Force Headquarters, CAARNG, issued Orders 56-1121.  The orders, as amended, awarded him PMOS 31B effective 1 September 2007.  

6.  He provides e-mail showing:

* in June 2009, the GI Bill Manager, California National Guard, assigned a kicker control number and verified his eligibility in the Information Management and Reporting Center
* on 1 July 2009, SGT B--- submitted a GI Bill Kicker Annex signed by the applicant to the GI Bill Manager
* on 9 September 2009, the GI Bill Manager informed the applicant his kicker had been invalidated but his records showed it was still valid

7.  He provides an NGB Form 5435 bearing the control number assigned by the GI Bill Manager in June 2009.  The form was signed by the GI Bill Manager and the applicant, and the signatures are dated 13 September 2007.  The form shows he acknowledged he qualified for the kicker at the $200 rate for his enlistment in MOS 31B.

8.  On 22 April 2013, the Chief, Enlisted Incentives Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, provided an advisory opinion.  The advisory official stated the applicant was authorized the MGIB kicker and it should have been paid.  The advisory official recommended granting the applicant's request and that the ARNG update his records to show he was authorized the MGIB-Selected Reserve Kicker effective 13 September 2007.

9.  The applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  He did not respond.  

10.  A memorandum, subject:  ARNG MGIB Kicker Program, dated 20 August 2007, from NGB provided the policy effective at the time of the applicant's 2007 enlistment.  The policy provided, in part, that prior-service applicants were eligible for an MGIB kicker at the $200 rate if they:

* enlisted/reenlisted/extended into a skill level 1 or 2 (SGT or below) position
* were MOS qualified
* enlisted into any ARNG Modified Table of Organization and Equipment unit or deployable Table of Distribution and Allowances unit approved by NGB
* were not accessed/extended into an Active Guard Reserve or Federal Military Technician position
* obtained a high school diploma or equivalent
* had not received a kicker from another Reserve Component

11.  The Department of Veterans Affairs (VA) administers monthly payments for the ARNG MGIB Kicker Program.  Soldiers eligible for the program receive their payments in conjunction with their MGIB basic benefits and only as long as they have MGIB basic benefits remaining.


DISCUSSION AND CONCLUSIONS:

1.  The available evidence supports the applicant's request for correction of his record to show he has a valid MGIB Kicker Incentive Addendum.

2.  It appears that at the time of his enlistment on 13 September 2007, there were insufficient records available to verify that he was qualified for MOS 31B, and, as a result, an MGIB Kicker Incentive Addendum was not prepared.  His record was later corrected to show he held MOS 31B effective 1 September 2007.  Following this correction, the GI Bill Manager, California National Guard, verified his eligibility for the kicker and assigned a control number.  The GI Bill Manager and the applicant later signed an MGIB Kicker Incentive Addendum and backdated their signatures to the date of his enlistment.   

3.  The available records indicate that had there been sufficient records available to verify his MOS eligibility at the time of his enlistment, he would have been offered and would have accepted the MGIB kicker.  

4.  As a matter of equity, it would be appropriate to correct the applicant's record to show the NGB Form 5435 he has provided was completed and attached to his DD Form 4 as Annex K when he enlisted on 13 September 2007.  

5.  When this correction has been completed, he may apply to the VA for determination of his eligibility for payment of the MGIB kicker.  

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 all Department of the Army records of the individual concerned be corrected by showing the NGB Form 5435 he provides was completed and attached to his DD Form 4 as Annex K when he enlisted on 13 September 2007.  




      _______ _   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)                                         AR20130003933





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ABCMR Record of Proceedings (cont)                                         AR20130003933



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