IN THE CASE OF:	  

		BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20130011903 


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 an Exception to Policy (ETP) for a Non-Prior Service Enlistment Bonus (NPSEB).

2.  The applicant states:

   a.  On 6 February 2009, he enlisted in the Puerto Rico Army National Guard (PRARNG) under the Foreign Language Recruit Initiative Program (FLRIP).  As part of his contract, he was promised a $20,000 enlistment bonus as long as he scored an Armed Forces Qualification Test (AFQT) of 31 or higher after completing the English as a Second Language (ESL) course.  
   
   b.  The first Bonus Addendum that he signed on 6 February 2009 states the terms and conditions in section II.  He successfully completed the training and re-tested on 29 June 2009 and obtained an AFQT of 43.  He returned home from training on 4 September 2009.  On 22 September 2009, he returned to the Military Entrance Processing Station (MEPS) and signed a new NGB Form 600-7-1-R-E (Annex R to DD Form 4 or DA Form 4836 – Reenlistment/Extension Bonus Addendum – ARNG of the United States) and a new guard annex.  Due to no fault of his own, the MEPS guidance counselor entered the wrong AFQT score on the Bonus Addendum.  The initial AFQT score of 21 was entered instead of the second score of 43.

	c.  The first payment of $10,000 was due upon completion of initial active duty for training (IADT).  The second and final payment of $10,000 was due on 
6 February 2012.  Due to the clerical error, the National Guard Bureau (NGB) denied the payment because the second Bonus Addendum was signed after the first enlistment date of 6 February 2009 and also because the wrong score was entered on the addendum.  

   d.  The payments were also denied because, according to the NGB, he did not meet the eligibility criteria for the incentive which violates ARNG Selected Reserve Incentive Program (SRIP) Guidance 07-06 (10 August 2007 – 28 February 2009).  After he transferred to the Florida ARNG (FLARNG), the State of Florida's Incentive Manager submitted a request for an ETP twice and both ETP requests were denied by the NGB.

	e.  He believes the NGB's decisions to deny the request for an ETP is unjust. He trusted that the incentive being offered at the MEPS was true.  The foregoing errors were due to no fault of his own.  He complied with the requirements requested of him by the MEPS and his recruiter.  He completed all of the required training and passed the AFQT test with a score of 43.  Although the second addendum did not meet the ARNG SRIP policy 07-06, the original Bonus Addendum signed on 6 February 2009 did meet ARNG SRIP policy 07-06.  He has kept his contractual obligations and believes that if he does not receive the promised bonus incentive it would be unjust and unfair.  He just wants to receive what was promised to him.   

3.  The applicant provides:

* DA Form 2823 (Sworn Statement)
* NGB Form 600-7-1-R-F (Annex F to DD Form 4 NPSEB Addendum, ARNG of the United States)
* Armed Forces Classification Test (AFTC) Results memorandum
* NGB Form 600-7-3-R-E 
* Enlistment/Reenlistment Agreement, ARNG Service Requirements and Methods of Fulfillment
* Request for ETP memorandum
* Request for ETP denial

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the PRARNG on 6 February 2009.

2.  His records contain and he provides copies of the following:

   a.  An NGB Form 600-7-1-R-F he executed on 6 February 2009 for a $20,000 NPSEB with a first bonus payment of 50 percent (%) of the total authorized amount, less taxes, upon completion of IADT and award of a military occupational specialty (MOS).  Section II – Eligibility of the agreement states "Upon my enlistment in the ARNG I am eligible for an Enlistment Bonus, as indicated in the SRIP, if I meet the following criteria:

		(1)  I have an AFQT score between and including 21-30 and am enlisting under the provisions of the FLRS.  Score: 21 

			(a)  I understand I will be required to take the AFCT upon completion of the ELS training program.

			(b)  I understand that the AFQT score I receive from this AFCT will be counted as my final AFQT score of record, for which my continued eligibility will be determined.  Failure to receive a score of 31 or higher will disqualify me from receiving the incentives agreed upon under the provisions of this addendum."

	b.  AFCT Results memorandum, dated 6 July 2009, which shows he scored an AFCT score of 43.
   
   c.  An NGB Form 600-7-1-R-E he executed on 22 September 2009.  Section II, Eligibility, shows his AFQT score was 21.
   
   d.  An Enlistment/Reenlistment Agreement he executed on 22 September 2009 and lists it as an attachment to his enlistment agreement for an enlistment bonus.

3.  He completed training and was awarded MOS 25U (Signal Support Systems Specialist).

4.  He was transferred from the PRARNG to the FLARNG on 3 September 2012.

5.  In a memorandum, dated 28 March 2013, the Director, Military Personnel, FLARNG, requested an ETP be granted to allow the applicant retain his NPSEB in a critical MOS of 25U.  The FLARNG official stated:

   a.  The applicant completed the ESL course and retested on 29 June 2009 and obtained a passing AFQT score of 43.  On 22 September 2009, he returned to the MEPS and was told to sign a new bonus addendum; however, the passing AFQT score was not annotated on the bonus addendum as it was supposed to be.  
   
   
b.  A review of DD Form 1966 (Record of Military Processing – Armed Forces of the United States) and the NGB Form 600-7-1-R-E supports an incentive being offered at the time of his enlistment.  The dates on the DD Form 1966 and the bonus addendum do not match.  Lastly, the Bonus Control Number was not requested or approved until the date the second bonus addendum was signed.
   
   c.  The applicant accepted an incentive offer made by the FLARNG in good faith and has otherwise fulfilled his obligations under the contract as of the date of this request.  Therefore, withholding payment of this incentive would be contrary to equity and good conscience, and against the best interest of the Army.
   
   d.  Request approval for an ETP allowing the applicant to retain his $20,000 NPSEB and receive his payment(s) of $10,000 and $10,000, respectfully.

6.  On 17 May 2013, the NGB, Deputy G-1, denied the ETP to retain the NPSEB. The NGB official stated the State Incentive Manager will terminate the incentive with recoupment.  The applicant's AFQT score did not meet eligibility criteria for the incentive which violates ARNG SRIP 07-06 (10 August 2007 to 28 February 2009).  The NGB official listed the details of the applicant's contract/agreement.  The applicant may file a claim with the Army Board for Correction of Military Record (ABCMR) in accordance with Army Regulation 15-185, if there is belief than an error or injustice still exists.

7.  On 12 June 2013, the NGB, Deputy G-1, again denied the ETP to retain the NPSEB.  The NGB official stated the State Incentive Manage will terminate the incentive with recoupment.  The applicant's AFQT score did not meet eligibility criteria for the incentive which violates ARNG SRIP 07-06 (10 August 2007 to 28 February 2009).  The NGB official listed the details of the applicant's contract/agreement.  The applicant may file a claim with the in accordance with Army Regulation 15-185 (ABCMR), if there is belief than an error or injustice still exists.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the PRARNG on 6 February 2009 and initially signed an agreement for a $20,000 NPSEB in a critical MOS of 25U.  At the time he had an AFQT score of 21.  He also acknowledged for continued incentive eligibility he must receive a score of 31 or higher or be disqualified from receiving the incentive.  

2.  The applicant's contention and documents he provided were carefully considered and found to have merit.  At the time of his initial qualification for the 

NPSEB his AFQT score was 21, in the stated qualifying range from 21-30.  Upon completion of his ELS training program (completed several months after he enlisted) he received a score of 31.  Eligibility for the NPSEB required a score of 31 or higher to receive the incentive.  

3.  The applicant was then determined to be ineligible for the bonus since he obtained a higher score after he enlisted.  The effect of this determination was to place the applicant in a Catch-22 situation – his contract authorized him to retake the AFQT after completing ESL (which he could attend only after he enlisted), but because he retook the AFQT after his enlistment date he was not eligible for the bonus.

4.  The applicant accepted an incentive offered made by the FLARNG in good faith and has otherwise fulfilled his obligations under the contract; therefore, as a matter of equity his records should be corrected to show he was granted an ETP to receive his $20,000 NPSEB and receive his payment(s) of $10,000 and $10,000.  

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 Army National Guard and Department of the Army records of the individual concerned be corrected by:

* showing the applicant was granted an ETP to accept the $20,000 NPSEB offered at the time of his enlistment 
* adding a memorandum to his personnel file stating the approval of the
NPSEB ETP
* cancelling the termination of the incentive with recoupment
* 
paying him, out of Army National Guard funds, the $20,000 NPSEB in accordance with specified installments and this records correction



      _______ _   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)                                         AR20130011903



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ABCMR Record of Proceedings (cont)                                         AR20130011903


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