IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130011511 


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, cancellation of any recoupment actions for the first installment payment of $10,000 minus taxes of a $20,000 Non-Prior Service Enlistment Bonus (NPSEB) he already received.

2.  The applicant states when he joined the Army National Guard, it was always his plan to go to flight school.  He completed initial entry training in February 2007 and upon his return he submitted his packet for flight school.  He was aware that he needed to remain in his military occupational specialty (MOS) for 12 months before he could accept his appointment without having to repay his NPSEB.  He planned to attend flight school the following year so he could meet the requirements for keeping his initial NPSEB bonus payment.  However, due to a short-fall training opening, he was command directed to attend flight school on 2 December 2007 because it was unknown when the next class would be conducted.  He did as he was directed and departed for flight school in 2 weeks.  His earlier-than-planned completion of training resulted in an earlier appointment to warrant officer which caused him to fall 1 month short of serving the required 12 months in MOS 15T in order to keep his NPSEB payment.  He believes he should not be penalized for furthering his career as an Army aviator because he was command directed to attend a school before he planned to do so.

3.  The applicant provides:

* Michigan Army National Guard (MIARNG) memorandum, dated 14 February 2011
* National Guard Bureau (NGB) memorandum, dated 15 March 2011
CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the MIARNG on 30 May 2006, for a period of 6 years.  His Annex E to DD Form 4 (Enlistment Bonus Addendum Army National Guard of the United States) confirms:

* he enlisted for a critical skill MOS (15T) with authorization for a $20,000.00 bonus
* he would receive the first bonus payment of 50 percent of the total authorized amount ($20,000.00), less taxes, when he completed initial active duty training and was awarded the MOS for which he enlisted
* he would be terminated from bonus eligibility with recoupment if he accepted an appointment as a warrant officer, and had not served at least 12 months of the incentive contract following the date of payment eligibility

2.  On 9 March 2007, he completed active duty training (ADT), was released from active duty (REFRAD), was awarded MOS 15T, and was transferred to his ARNG unit.  The first half of his ($20,000) NPSEB was processed for payment upon award of MOS 15T.

3.  On 29 August 2007, the applicant and a service representative completed a Written Agreement – Officer Accession Bonus (OAB) Addendum which shows he was authorized a $10,000 OAB for his agreement to serve 6 years in the Selected Reserve as a warrant officer in MOS 153D (UH-60 Pilot).

4.  Orders 296-675 issued by the State of Michigan Department of Military and Veterans Affairs, dated 23 October 2007, ordered him to ADT for the period 2 December 2007 to 8 February 2009 to attend aviation flight training (Warrant Officer Candidate School (WOCS)).

5.  On 2 December 2007, he entered active duty to attend WOCS.  He was honorably REFRAD on 4 February 2008 upon completion of WOCS.  His DD Form 214 shows he was REFRAD to accept a commission or a warrant in the Army.

6.  Orders 034-644, issued by the State of Michigan Department of Military and Veterans Affairs, dated 3 February 2009, ordered him to ADT for the period 9 February to 3 September 2009 to attend aviation flight training.

7.  A DA Form 1059 (Service School Academic Evaluation Report) shows he completed the Aviation Warrant Officer Basic Course during the period 6 February 2008 through 9 July 2009.

8.  NGB Special Orders Number 303 AR, dated 15 December 2009, as amended by NGB Special Orders Number 59 AR, extended Federal recognition to the applicant as a warrant officer one effective 5 February 2008.

9.  He submits NGB's denial of the MIARNG State Incentive Manager's request for an exception to policy, dated 14 February 2011, requesting the applicant receive the anniversary payment of his OAB.  In this denial, dated 15 March 2011, an official at the NGB stated the applicant:

	a.  completed initial ADT on 9 March 2007;

	b.  previously received the initial half of an NPSEB of $10,000 that was processed for payment on 30 March 2007;

	c.  executed an OAB Addendum for $10,000 on 29 August 2007;

	d.  accepted appointment as a warrant officer in the MIARNG on 5 February 2008 in the critical area of concentration 153D;

	e.  should have had the NPSEB terminated with recoupment because he did not complete the 12-month minimum service requirement per section V, paragraph 6, of his NPSEB Addendum;

	f.  already received the first half ($5,000.00) of his OAB; and

	g.  based on the foregoing, was eligible to retain his OAB, but only on the condition his NPSEB was terminated with recoupment in the amount of $10,000.

10.  On 14 February 2013, the Board recommended that the MIARNG pay the applicant the second installment payment of the OAB incentive.

11.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff (DCS), G-1.

	a.  The advisory official stated the applicant enlisted in the ARNG on 30 March 2006 and completed advanced individual training in MOS 15T in February 2007.  He served 1 year and 11 months in an enlisted status prior to his appointment as a warrant officer on 5 February 2008.  Army policy mandated termination and recoupment of any enlistment bonuses if the Soldier served less than 1 year in the bonus MOS and the original bonus contract was executed prior to 21 May 2008.  After that date, the 1-year provision was rescinded provided the Soldier did not get any bonus for the new period of service.  The applicant received a $10,000 OAB.

	b.  A determination by the Office of the Secretary of Defense issued on 21 May 2008 precluded recoupment from a member enlisting, reenlisting, or being appointed into any branch of the military as long as they received no bonus for the new period of service and the new period of service was equal to or more than the existing period of service.  Since the applicant received both an enlistment bonus and an OAB, the enlistment bonus was subject to termination with recoupment as the policy existed prior to 11 March 2011.  An operational change to Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 10-9c(2), dated 11 March 2011, removed the requirement to recoup enlistment bonuses for Soldiers accepting direct appointments or commissions, to include those receiving an OAB.  The current policy is to terminate payments of the previous bonus without recoupment.

	c.  The advisory official recommended granting the applicant relief by permitting him to retain any bonus payments made to him prior to being appointed as a warrant officer.
  
12.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received from the applicant.

13.  NGB Policy Number 07-06, dated 10 August 2007, subject:  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007, 2008, and 2009, 10 August 2007 - 30 September 2009, with updates, provided the general criteria for the NPSEB.  The ARNG offered a $20,000 NPSEB to applicants who enlisted for 6 or 8 years and agreed to serve in an identified critical skill within the State.

14.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  Applications must be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a Soldier.  Paragraph 1-12 of the same regulation contains guidance on determining injustice or hardship and states that the following factors will be considered:  the Army's policy in the area of indebtedness to the U.S. Army; the Soldier's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience are taken into consideration; the Soldier's monthly income and expenses; the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected; and additional income or assets.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for cancellation of any recoupment actions or remission of any debt that may arise related to the initial installment payment of his NPSEB was carefully considered.

2.  His NPSEB agreement as well as regulatory policy in effect at the time dictated termination of the NPSEB with recoupment of any payments made if he failed to serve for the requisite 12 months in the critical MOS 15T.  The applicant executed an OAB Addendum for $10,000 on 29 August 2007 and was appointed as a warrant officer on 5 February 2008.  After 21 May 2008, the 1-year provision was rescinded provided the Soldier did not get any bonus for the new period of service.  Previously, the Board recommended the applicant be paid the full OAB.  However, effective 11 March 2011, serving less than the minimum of 12 months in the enlisted bonus MOS no longer required recoupment of an enlistment bonus for Soldiers accepting direct appointments or commissions, to include those receiving an OAB.

3.  Though he served only 11 of the required 12 months in his enlisted bonus MOS, it appears he intended to and would have fulfilled the minimum 12-month service requirement in the enlisted bonus MOS had it not been for his earlier than planned attendance at flight school which resulted in an earlier than expected appointment as a warrant officer.  Further, upon the expiration of his service obligation based on his warrant officer and OAB commitments, he will have served nearly 8 years in the military in critical skill positions.

4.  By law and regulation, no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment.  However, in view of the foregoing, it appears it would be in the interest of equity and justice to grant the applicant's requested relief.

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 records of the individual concerned be corrected by:

	a.  showing a waiver of recoupment action was approved, allowing him to retain the first installment of the NPSEB; and

	b.  stopping recoupment of the first installment of the NPSEB in the amount of $10,000 and refunding from Army National Guard funds any monies already recouped from the individual.




      _______ _  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)                                         AR20130011511



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ABCMR Record of Proceedings (cont)                                         AR20130011511



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