IN THE CASE OF:	

		BOARD DATE:	    14 January 2014

		DOCKET NUMBER:  AR20130011804 


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 an enlistment bonus in the amount of $20,000 to which he was entitled for enlistment in the Army National Guard (ARNG) and payment of an $8,000 bonus for enlisting in the Active Army under the Active First program.  

2.  He states:

	a.  he is being denied the bonus that was promised to him upon entering the service due to an incomplete program.  This injustice is caused by failure of the Minnesota ARNG (MNARNG) to properly deploy the Active First program.  The program was a way of entering the Active Army and ARNG as a split option.  For the first 3 years plus training, he would serve as an active duty Soldier then at least 3 years of ARNG duty.  

	b.  he was informed that he would receive the first $8,000 for his active duty bonus after completing advanced individual training (AIT) and he would receive the $20,000 ARNG bonus upon returning to the ARNG once his active duty obligation was completed.  

	c.  his recruiters and the Military Entrance Processing Station (MEPS) personnel explained to him that the $20,000 bonus would only be forfeited if he remained on active duty status and didn't return to the ARNG.  After he returned to his unit in the MNARNG, he inquired about his bonus.  He discovered the contracts for the Active First program were a bad deal and the Soldier wasn't guaranteed an Active First bonus upon release from the Active component.
	d.  the Active First program was an enlistment option and not an incentive in itself.  Based on the policy for the Active First program, a Soldier was supposed to sign an Active First Affiliation bonus contract once he/she completed active duty and entered the ARNG subject to applicable law and regulation.  However, there was no such thing as an Active First Affiliation bonus.  The money was never put aside and never created by law and regulation.  The only affiliation bonus offered under the Selected Reserve Incentive Program (SRIP) for an enlisted Soldier was the Enlisted Affiliation bonus.  

3.  He provides email correspondence, Active First webpage information, initial active duty training (IADT) orders, and a National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 (Enlistment/Reenlistment Document) – Non-Prior Service Enlistment Bonus (NPSEB) Addendum – ARNG) of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Active Guard Reserve in the rank of specialist/E-4.

2.  The applicant enlisted in the MNARNG on 13 January 2009 for a period of 8 years.

3.  Annex E to his NGB Form 600-7-1-R-E shows in:

	a.  Section II (Eligibility):

		(1)  item 6 he enlisted for military occupational specialty (MOS) 25B (Information Systems Operator); and

		(2)  item 7 he enlisted for a Non-Prior Service Critical Skill Bonus (50/50 payment).

	b.  Section III (Payments) shows he:

		(1)  enlisted for a $20,000 NPSEB;

		(2)  would receive the first payment at the rate of 50 percent upon completion of inactive duty training (IADT) and award of the MOS for which enlisted; 

		(3)  would receive a second and final payment on the 36th month anniversary of his enlistment; and
		(4)  understood that he would not receive a payment until all requirements have been met and his entitlement has been verified and certified by the proper authority.

   c.  Section IX (Certification by Service Representative) shows the entry:

		(1)  "I certify that I have witnessed the reading and signing of the above agreement and the signature appearing above is that of the applicant.  I have verified the Soldier meets the eligibility requirements of National Guard Regulation 600-7 (Selected Reserve Incentive Programs (SRIP)), paragraph 2-3 and the applicant's MOS/unit is currently eligible for an enlistment cash bonus"; and 

		(2)  In connection with this enlistment he and his enlisting official signed Annex E to the DD Form 4 on the same date (13 January 2009).

4.  Orders 9043009, dated 12 February 2009, published by Department of Defense, MEPS, Fort Snelling, MN, ordered him to IADT with a reporting date of 17 March 2009 and his reporting date to AIT as 8 June 2009.  The additional instructions state "ACTIVE FIRST PROGRAM participant will enter Active Army for 36 Months upon discharge from Army National Guard.  Completion of the DD Form 4 Series will be accomplished by the Active First Management Cell.  ACTIVE FIRST CONTROL #AF 2009-529."

5.  His service record is void of a contractual agreement for an enlistment bonus of $8,000 for enlistment in the Active First program. 

6.  He was discharged from the MNARNG and as a Reserve of the Army on 17 March 2009 for enlistment in another component of the U.S. Armed Forces.

7.  He enlisted in the Regular Army on 18 March 2009 for a period of 3 years.

8.  He was released from active duty on 18 January 2013 and transferred to a Reserve unit.

9.  In the processing of this case, an advisory opinion was obtained from the Incentive and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff (ODCS), G-1 who states:

	a.  the Active First program was an ARNG initiative/pilot program that first enlisted a recruit into the ARNG for 8 years.  The recruits would serve the first 3 or 4 years in the Active Army and return to the ARNG to complete the remainder of their contract after separation from the Active Army.  Such recruits signed a conventional contract with the ARNG with incentives based on whatever MOS they selected and after IADT entered the active Army.

	b.  advertisements for Active First in the early stages stated applicants were to be given up to $40,000 for their time in the Active Army and up to $20,000 if they chose to return to the ARNG.  As this pilot progressed a number of challenges were identified.  As a result, the ARNG attempted to streamline this program and make both the advertising and contractual procedures less ambiguous.  This program has been discontinued.  

	c.  the applicant enlisted in the MNARNG on 12 January 2009 in MOS 25B and went on active duty in the Active Army on 18 March 2009.  The applicant was released from the active duty in "March 2013" and chose to transition back into the MNARNG.  Upon his return, the ARNG denied payment of the $20,000.

	d.  due to the ambiguous nature of the language and procedures used in this pilot program, it is recommended the applicant be granted full administrative relief and receive payment of the $20,000.  

10.  On 24 September 2013, a copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal.  As of 16 October 2013, no response had been received from the applicant.  

11.  National Guard Regulation 600-7 (Selective Reserve Incentive Programs), chapter 2, paragraph 2-3, provides that a person is eligible for an NPSEB if they meet the following requirements:

* contract for a term of 8 years (6 years must be in the ARNG)
* meet eligibility requirement for enlistment as an NPSEB applicant 
* enlist for assignment to a vacant position
* meet the educational requirements
* have an Armed Forces qualification test score of 31 or higher
* are not enlisting for a Military Technician position
* complete the NGB Form 600-7-1-R-E
* only contract for one bonus at a time

12.  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's request for payment his NPSEB ($20,000) and enlistment bonus under the Active First program (8,000) was carefully considered and determined to have merit for partial relief.

2.  The evidence of record shows the applicant enlisted in the MNARNG in January 2009 for an NPSEB in the amount of $20,000 in critical skill 25B.  During the enlistment processing, he was issued orders which show he was an Active First participant and included control number "AF 2009-529."

3.  Based on the ODCS, G-1 advisory opinion, the Active First program was an ARNG initiative/pilot that allowed recruits to enlist in the ARNG for 8 years, serve 3 to 4 years in the Active Army, and return to the ARNG to complete the remainder of their contract after separation from the Active Army.  Due to ambiguous advertising and contractual procedures in the early stages of this program, the advisory official recommended the applicant be granted full administrated relief and receive payment of the $20,000.  

4.  Since he accepted the $20,000 enlistment bonus in good faith, he should not be penalized for the error.  He completed the 3-year obligated service requirement and continues to serve in an Active Guard Reserve status.  Therefore, it would serve the interest of equity and justice to pay him the NPSEB in the amount of $20,000 according to the enlistment contract.

5.  However, his enlistment contract does not show he was authorized an $8,000 enlistment bonus under the Active First program.  Therefore, there is insufficient evidence to grant this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X_____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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:

     a.  showing an appropriate authority determined the applicant is eligible for payment of the NPSEB in the amount of $20,000 in accordance with the terms of his enlistment contract, dated 13 January 2009; and

     b.  paying him out of Army National Guard funds any monies due as a result of this correction.  



2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying him an $8,000 bonus for enlistment into the Active Army under the Active First program.




      __________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)                                         AR20130011804





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ABCMR Record of Proceedings (cont)                                         AR20130011804



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