BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130007090 


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 correction of his records to allow him to retain his Non-Prior Service Enlistment Bonus (NPSEB) based on his enlistment in the North Dakota Army National Guard (NDARNG) on 30 October 2009 and cancellation of recoupment.

2.  The applicant states:

	a.  His request to waive recoupment of the bonus was denied and recoupment of $1,666.67 is required.  He believes this is unjust.

	b.  He was discharged because he had two U.S. Army Criminal Investigation Command (CID) reports.  One report was for a urinalysis test taken during basic training; he was notified 1 year later.  He was also told by his unit's noncommissioned officer that he passed every urinalysis test and he should not worry now about something that happened a year ago.

	c.  The second CID report was for being suspected of theft of prescriptions while serving overseas.  He was never charged or taken to court.  He volunteered to deploy with a unit 5 hours away from his home.  When he returned from his deployment he returned to his home unit.  When the investigation was brought up to his home unit commander, his only information was from his deploying unit commander.  Since the deploying unit commander wasn't on the same base as he, all his information was by word of mouth from other Soldiers.

	d.  He received many awards and he excelled at physical training scores during his 2 years, 7 months, and 17 days in the NDARNG.  During this time his student loans were not repaid as promised.

	e.  He fought the discharge.  The discharge changed his life dramatically and he became depressed and he felt betrayed.  He was a very good Soldier.  All his hard work was taken from him just for being suspected of a crime he did not commit.  He achieved more in his time than most do their whole military careers.  He was months away from his next bonus payment.

	f.  He is not a rich person and he has been unemployed until recently.  He was recently accepted into a college for radiology and truly needs all the help he can get.

3.  The applicant provides:

* Request for Exception to Policy (ETP) for NPSEB (Applicant), dated 12 March 2013
* Notification of ETP Decision, dated 13 March 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NDARNG on 30 October 2009 for a period of 8 years.  His NPSEB Addendum shows he enlisted for a bonus in the amount of $20,000.00.  Section III (Obligations) of this addendum states, "I shall serve satisfactorily, as prescribed by the Service regulations and this written agreement, for the entire period of my enlistment."

2.  On 9 May 2012, he was discharged under honorable conditions (general) from the NDARNG for acts or patterns of misconduct.  His discharge packet is not available.

3.  He provides an ETP memorandum from the National Guard Bureau (NGB), dated 12 March 2013, which states:

* an ETP request to retain the $20,000.00 NPSEB is denied
* the State Incentive Manager will terminate the incentive with recoupment
* the applicant was discharged prior to completion of the service obligation due to misconduct which violates ARNG Selective Reserve Incentive Program Policy Number 07-06 

4.  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), section 0201 (General Provisions), provides that 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.

5.  Department of Defense Financial Management Regulation, volume 7A, chapter 2, 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 evidence confirms the applicant enlisted in the NDARNG on 30 October 2009 for a period of 8 years for an NPSEB in the amount of $20,000.00.

2.  The evidence also shows he was discharged from the NDARNG due to misconduct on 9 May 2012 prior to completion of his service obligation.  His discharge packet is not available, but in the absence of evidence to the contrary it is presumed that all actions taken by the military were proper.

3.  In March 2013, NGB terminated the incentive with recoupment.

4.  Since he did not serve satisfactorily for the entire period of his enlistment per his NPSEB Addendum contractual obligations, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________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)                                         AR20130007090



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ABCMR Record of Proceedings (cont)                                         AR20130007090



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