BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130006764 


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 payment of the remainder of his prior-service enlistment bonus (PSEB).

2.  The applicant states, in effect, that prior to his release from active duty (REFRAD) in the Regular Army he enlisted in the Army National Guard for a period of 3 years and a PSEB of $7,500.  He was paid the initial payment of his bonus but never received the last payment when he completed his 3-year enlistment.  

3.  The applicant provides a copy of his enlistment contract and addendum and his National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 12 March 2003.  He completed his training and was promoted to the pay grade of E-5 on 1 April 2007.

3.  On 27 November 2007, he signed an enlistment contract in which he agreed to serve in the California Army National Guard (CAARNG) for a period of 3 years and a PSEB upon his REFRAD.  His bonus addendum provided that he would be paid the first half of his bonus upon enlistment and the second half of his bonus upon completion of his 3-year enlistment.

4.  On 11 March 2008, he was honorably REFRAD at Fort Bliss, Texas and on 12 March 2008, he entered into the CAARNG for a period of 3 years.  He served until he was honorably discharged from the CAARNG on 11 March 2011 due to the expiration of his term of service.  He had served 3 years of service in the CAARNG.

5.  In the processing of this case, a staff advisory opinion was obtained from the Department of the Army, Office of the Deputy Chief of Staff, G-1 which opines that he was paid his first installment of his PSEB of $3,750 on 29 April 2008.  Officials at the G-1 go on to state that investigations conducted into the CAARNG incentive programs revealed systemic problems with the conduct of the program during the time the applicant was serving.  A determination was made that the applicant’s packet contained multiple administrative and procedural errors that occurred through no fault of the Soldier.  Officials at the G-1 recommended that administrative relief be granted and that the applicant receive the final payment of the PSEB.  The advisory opinion was provided to the applicant and to date no response has been received by the staff of the Board.

6.  Title 37, U.S. Code, section 308j(b), states that the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.  Paragraph (2)(a) states the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction, the skills to which the authority under this subsection is to be applied.  Paragraph (2)(b) states a skill may be designated for an Armed Force under paragraph (2)(a) if, to mitigate a current or projected significant shortage of personnel in that Armed Force who are qualified in that skill, it is critical to increase the number of persons accessed into that Armed Force who are qualified in that skill or are to be trained in that skill.  Paragraph (2)(b) states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned.

7.  Department of Defense 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 was eligible for his PSEB at the time of his enlistment and was paid his first of two installments.  However, the second and last installment of his bonus was denied due to administrative errors that occurred through no fault of the applicant.  It is not reasonable to penalize the Soldier for errors made by others and for breakdowns in processes for which the individual Soldier is not expected to know or be responsible for, especially 3 years after the fact.

2.  The advisory opinion from the G-1 clearly indicates that the applicant should not be denied his benefits for errors made by others and for which he had no knowledge or responsibility.  

3.  The applicant reenlisted in good faith for a period of 3 years and a $7,500 PSEB; however, the CAARNG and the NGB have not honored their commitment to the applicant in that they have not paid the remainder of his PSEB.

4.  Accordingly, it would be in the interest of equity and justice to pay him the remainder of his PSEB as contracted for. 

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 State Army National Guard and Department of the Army records of the individual concerned be corrected by showing the appropriate authority approved paying the applicant the remainder ($3,750) of the PSEB in accordance with his contract from Army National Guard funds.



      _______ _   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)                                         AR20130006764





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ABCMR Record of Proceedings (cont)                                         AR20130006764



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