BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011403 


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) and the Student Loan Repayment Program (SLRP) offered at the time of his enlistment in the Pennsylvania Army National Guard (PAARNG) on 2 March 2010.

2.  The applicant states:

* he had emergency surgery for his appendix while he was waiting to attend initial active duty for training (IADT)
* he was told by his unit that he must wait 6 months from the date of surgery to be medically cleared
* he wanted to go to IADT but was not allowed
* as soon as the 6 months passed he went back to the Military Entrance Processing Station (MEPS) and was medically cleared and received a new shipping date
* the total length of training was 2 years and 7 days

3.  The applicant provides a memorandum from the PAARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the PAARNG on 2 March 2010 for a period of 8 years.  His National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) – NPSEB Addendum – ARNG) shows he enlisted for a bonus in the amount of $10,000.00.  Section IV (Payments) of this addendum states "I understand that if I fail to become fully qualified in an Army MOS [military occupational specialty] within 24 months of my enlistment, the incentives described herein will terminate without payment."

2.  His NGB Form 600-7-5-R-E (Annex L to DD Form 4 – Enlisted Loan Repayment Program Addendum – ARNG of the United States) shows he enlisted for the SLRP.  Section V (Termination) of this addendum states, "I understand that I may be terminated from bonus eligibility for…failure to obtain DMOSQ [duty MOS qualification/qualified] within 24 months after an involuntary transfer into another skill for the convenience of the government."

3.  He was ordered to IADT on 1 March 2011 and he was released from active duty on 7 March 2013 after completing 2 years and 7 days of creditable active service.  He was awarded MOS 35M (human intelligence collector).

4.  He provided a memorandum from the PAARNG, dated 30 April 2013, which states:

	a.  The applicant enlisted in the PAARNG on 2 March 2010 with a bonus addendum and SLRP addendum for critical MOS 35M.

	b.  During the time frame of his enlistment and shipping to IADT, he had emergency surgery for his appendix.  Due to current regulations at MEPS, Soldiers are required to wait 6 months until shipping.  He shipped on 1 March 2011 at the first available seat after the 6-month waiting period.

	c.  He attended basic combat training immediately followed by MOS training and Defense Language Institute (DLI) training.  The total length of training was 2 years and 7 days.

	d.  While he was at IADT, the unit to which he was assigned lost the MOS 35M with language additional skill identifier position and the paragraph/line became an MOS 19D position on 1 April 2012.  The command made the decision to leave him at DLI training due to future modified table of organization and equipment (MTOE) change expectations in the State where MOS 35M with language skills was forecasted.  This would ensure the PAARNG had qualified Soldiers to fill these positions when the MTOE changes occur.

	e.  Current regulations regarding unit reorganizations allow Soldiers 24 months to become DMOSQ from the date of reorganization or date the Soldier returned from IADT.  He would be scheduled for MOS 19D training or transferred to an MOS 35M position when available.

	f.  The applicant could not become DMOSQ within 24 months due to regulations, training seat availability, and length of training.  He had no ability to effect or request any change to these elements.  He completed all tasks as directed and became DMOSQ at the first available opportunity.

5.  In the processing of this case, a staff advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended granting full administrative relief and receipt of his enlistment bonus and the SLRP as stated in his enlistment documents and according to regulatory guidance.  The opinion stated:

* a review of the applicant's case shows he was denied both his bonus and SLRP because he did not complete training to become DMOSQ within 2 years of enlistment
* he underwent an emergency surgery while at IADT that extended his training to 2 years and 7 days

6.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond.

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) 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; and

	b.  section 0202 (Repayment and Non-repayment Conditions) 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 NPSEB in the amount of $10,000.00 and be allowed to retain the SLRP.

2.  The evidence confirms he enlisted in the PAARNG on 2 March 2010 for an NPSEB in the amount of $10,000.00 and the SLRP.

3.  Through no fault of his own, he underwent emergency surgery prior to attending IADT that extended his training to 2 years and 7 days.

4.  He was denied both his NPSEB and the SLRP because he did not complete training to become MOS qualified within 2 years of enlistment.

5.  Otherwise, he was eligible for the bonus and SLRP at the time of enlistment and did absolutely nothing wrong.  In view of the facts of this case and based on the advisory official's recommendation, it would be appropriate at this time and serve the interest of justice and equity to correct the applicant's records and pay him the NPSEB in the amount of $10,000.00 and allow him to retain the SLRP.

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 is 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:

	a.  showing he was granted an exception to policy to allow him to complete his training beyond the 2-year time limit,

	b.  paying him any portion of the NPSEB not already paid up to the amount of $10,000.00 from ARNG funds, and

	c.  allowing him to retain the SLRP as outlined in his NGB Form 600-7-5-R-E.



      __________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)                                         AR20130011403



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ABCMR Record of Proceedings (cont)                                         AR20130011403



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