IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130008387 


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, payment of an enlistment bonus in the amount of $7,500.00.

2.  The applicant states he was promised a bonus of $7,500.00 in writing in Annex X (Prior Service Enlistment Bonus (PSEB) Addendum – Army National Guard of the United States (ARNGUS)) to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) when he enlisted.  He trusted his recruiter when he told him about the bonus and he trusted the officer who signed the Annex X promising the bonus.  For unknown reasons, the Annex X was not referenced in his DD Form 4 making him ineligible for the bonus even though both documents were presented to him and signed at the same time by himself and an officer.  He completed all of his obligations to the Army and even extended his enlistment to deploy with his unit.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 September 2011, DD Form 4, DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), DA Form 4856 (Developmental Counseling Form), DA Form 1559 (Inspector General Action Request), and Rhode Island Army National Guard (RIARNG) State Tuitions Assistance Program Application.

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.  Having prior active and Reserve service in military occupational specialty (MOS) 63W (Wheeled Vehicle Repairer), the applicant enlisted in the RIARNG on 31 October 2008 for a period of 3 years.  His expiration of term of service (ETS) date was 30 October 2011.

3.  His records contain a DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 31 October 2008, wherein item 32a (Specific Option/Program Enlisted for) shows he enlisted for 3 years in the 1043rd Maintenance Company, RIARNG, East Greenwich, RI, in MOS 63W.  (This MOS no longer exists, MOS 63W and MOS 63B (Light Wheeled Vehicle Mechanic) subsequently converted to MOS 91B (Wheeled Vehicle Mechanic).)

4.  The applicant provides an Annex X to DD Form 4, dated 31 October 2008, wherein it stated he was qualified in the MOS he was enlisting for, he was enlisting for a 3-year PSEB in the amount of $7,500.00 in a critical unit identification code (UIC).  The bonus would be paid in two 50-percent installments.  The initial installment would be processed for payment upon enlistment and the final 50 percent would be processed on the third-year anniversary of his enlistment.  The applicant and the enlisting official both signed this form on 31 October 2008 and it contained a bonus control number (BCN).

5.  On 5 March 2009, the applicant was counseled by his first sergeant that he had the option to extend his enlistment in order to deploy with the unit.  On 17 August 2010, he extended his enlistment for 4 months.  His new ETS date was 30 February 2012.

6.  He was ordered to active duty as a member of his ARNG unit in support of Operation Iraqi Freedom (OIF) and he entered active duty on 13 September 2010.  He served in Kuwait from 14 November 2010 to 29 July 2011.  He was honorably released from active duty on 19 September 2011 to the control of the ARNG.

7.  His DD Form 214 for the period ending 19 September 2011 shows he completed 1 year, 5 months, and 19 days of creditable active service during this period.

8.  On 30 April 2013, he was honorably discharged from the ARNG.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 4 years and 6 months of Reserve service during this period.

9.  An advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Department of the Army Office of the Deputy Chief of Staff, G-1, dated 27 June 2013, in the processing of this case.

	a.  A review of the applicant's case showed he was offered and contracted for the PSEB for a 3-year enlistment in a critical UIC in the amount of $7,500.00.  A myriad of administrative errors were found in his enlistment process.  His DD Form1966 shows he was enlisting in MOS 63W (non-critical MOS), but his BCN was approved for MOS 63B (a critical MOS) in which he was qualified the day prior to his enlistment.  The UIC listed on the BCN does not match the UIC the applicant enlisted for, neither being a critical UIC.  The state terminated the BCN and no PSEB payments were made because of the errors.  The applicant was a loss to the ARNG on 30 April 2013.

	b.  The advisory official recommended approval of the applicant's request for entitlement to an PSEB bonus, granting the applicant full administrative relief, and paying him the PSEB.

10.  On 2 July 2013, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments.  He did not respond.

11.  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 contends he should be paid the $7,500.00 bonus he was promised in his bonus addendum on 31 October 2008.

2.  The evidence of record confirms the applicant enlisted in the ARNG on 31 October 2008 for 3 years in MOS 63W for a PSEB of $7,500.00.  He completed over 4 years of service in the ARNG during that period and extended his enlistment so he could deploy with his unit in support of OIF.  The advisory official confirmed that through no fault of his own, the BCN was approved for MOS 63B vice MOS 63W and the applicant qualified in MOS 63B a day prior to his enlistment.  As a result, the BCN was terminated and he was not paid the bonus for which he contracted.

3.  It is unclear why his bonus was terminated.  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 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, or against equity and good conscience, or contrary to the best interest of the United States.

4.  What is clear is that the applicant acted in good faith and fulfilled all the requirements of his contract.  Therefore, he should not be penalized for an error committed by ARNG recruiting officials and he should be entitled to receive payment of a $7,500.00 enlistment bonus.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for 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 he received a valid BCN upon enlistment in the RIARNG on 31 October 2008 for a PSEB in the amount of $7,500.00 and all required officials properly signed the bonus addendum
* showing he is eligible for payment of the bonus in accordance with the terms of his enlistment contract as a matter of equity and good conscience
* paying him the enlistment bonus as specified in his enlistment contract from ARNG funds, less taxes




      _____________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)                                         AR20130008387



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ABCMR Record of Proceedings (cont)                                         AR20130008387



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