IN THE CASE OF:	  

		BOARD DATE:	    24 September 2013

		DOCKET NUMBER:  AR20130012104 


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 as an exception to policy (ETP) that he be allowed to retain entitlement to a $10,000 Reenlistment/Extension Bonus (REB) that he contracted for under the provisions of the Army National Guard (ARNG) Selected Reserve Incentives Program (SRIP) for Fiscal Year 2011 (FY11).

2.  The applicant states his request for an ETP to retain his REB was denied due to the fact that he took a State Wide Vacancy Announcement (SWVA) position which resulted in him transferring from military occupational specialty (MOS) 42A (Human Resources Specialist) to MOS 88N (Transportation Management Coordinator) prior to his contract agreement going into effect.  He contends this problem is compounded because his transfer orders state the "Assign/loss reason" for his transfer was due to "Individual Request (IL)," when it should reflect it was for "the convenience of the Government."  He does not believe that he was given full consideration due to the applicable reference in his denial and/or that the Soldier aspect of the SWVA process has not been fully addressed in terms of coding via the Standard Installation/Division Personnel System (SIDPERS).

3.  The applicant attests that paragraph 7h, National Guard Bureau (NGB) memorandum, Subject:  (All States Log Number P11-0009) ARNG SRIP for FY11, dated 25 July 2011, states "Soldiers shall serve satisfactorily in the authorized MOS/Area of Concentration (AOC) for the full term of the service agreement, except for authorized exceptions."  Also paragraph 7u states that "Soldiers may continue to receive full incentive payment, if otherwise eligible, when they are transferred or reassigned in accordance with Army Regulation (AR) 601-210 (Active and Reserve Components Enlistment Program)."  Paragraph 21b states "Soldiers whose MOS is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized, or converted.  These Soldiers are entitled [to continue receiving incentives provided they meet all other eligibility criteria, become DMSOQ qualified] within 24 months, and are not separated from the SELRES [Selected Reserve].  Soldiers must be coded 9994, excess due to reorganization to continue receiving incentives provided they meet all other eligibility criteria, become Duty MOS qualified (DMOSQ) in SIDPERS (9995 Total Army Personnel Database - Guard (TAPDB-G) code).  Assignment Orders must be uploaded into the iMARC [Information Management and Reporting Center].”  Paragraph 25 is the ETP aspect which specifically states "Routine ETPs include the following:", but it also leaves open other instances by “using the word routine that are not seen, but qualified under this clause.”

4.  He further states that AR 601–210 governs the policy that specifically affects his case.  

   a.  Paragraph 10-5a(3) states "when the transfer is at the convenience of the Government and authorized by the Chief, NGB (CNGB) or Chief Army Reserve (CAR), the Soldier must become MOS qualified in the new skill within
24 months or incentives will be terminated."  

   b.  Paragraph 3 of NGB memorandum, Subject:  Management of Skill Level (SL) 20-40 Traditional Noncommissioned Officer (NCO) Vacancies after Exhausting a Promotion List (ARNG-HRH Policy Memorandum Number 11-003) states "The following guidance is provided to assist States in identifying and assigning Soldiers to fill Traditional NCO vacancies at SLs 20-40 through the new SWVA process."  
   
   c.  Paragraph 7 governs the transfer orders for Soldiers who are accepted in the SWVA and nowhere does it state what the Assign/loss reason should be “is accordance with the subsequent SIDPERS entry.”  He believes being coded an (IL) Individual Request for the SWVA process violates the intention of the policy to fill vacancies unable to be filled by the enlisted promotion policy.  NGB Pamphlet (AR) 25-10 (SIDPERS - ARNG Data Element Dictionary) gives the code (IL) for individual request, but there is no code that governs at the convenience of the State which he fully believes that offers being made through the SWVA policy should be coded as.  He fully believes that he should still be eligible to receive his bonus as he has not caused any adverse action, but yet stepped out on a limb to help his unit and State fill a critical vacancy.


5.  The applicant provides:

	a.  his NGB Form 600-7-3-R-E-DSIPP (Annex R to DD Form 4 or DA Form 4836 – Reenlistment/Extension Decentralized State Incentive Pilot Program Addendum ARNG of the United States):

	b.  his original request for an ETP; and

	c.  the NGB denial of his request for an ETP.

CONSIDERATION OF EVIDENCE:

1.  Following a 4-year period of enlisted service in the U.S. Marine Corps and a brief period in the U.S. Marine Corps Reserve, the applicant enlisted in the Nebraska (NE) ARNG on 28 September 2006 for a period of 6 years and MOS 42A.

2.  His record contains a DA Form 4836 which shows on 28 September 2011, he reenlisted in the NEARNG for a period of 6 years.

3.  His record contains (and he also provides) an NGB Form 600-7-3-R-E-DSIPP rendered in conjunction with his reenlistment on 28 September 2011.  This form shows the following pertinent information:

	a.  In Section II (Eligibility):

		(1)  paragraph 4b, he indicated he was DMOSQ for the position for which he was reenlisting and he held the rank and grade commensurate with the vacancy he was reenlisting for.  He stated he was reenlisting in the ARNG MOS of 42A.

		(2)  paragraph 8, he acknowledged he understood he was obligated to serve in the same Military Department and in the same skill for which the bonus was approved, unless excused for the convenience of the Government.

	b.  Section III (Bonus Amount and Payment), paragraph 1c, he indicated he was reenlisting for a period of 6 years to receive a total bonus payment of $10,000.  He also certified he was reenlisting in a valid, vacant position and he was not coded as excess in either a deployed or non-mobilized status.  The bonus would be paid in a lump sum and processed for payment the day after his current expiration term of service.

	c.  Section V (Termination):
		(1)  paragraph 1, in part, states "Incentives will not be terminated for the following conditions:  1a-Enlisted Soldiers who change their MOS due to normal skill or career progression for the incentive critical skill (CS) as published in DA Pamphlet 611-21 (Military Occupational Classification and Structure); and 1b-Soldier whose MOS is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized or converted are entitled to continue receiving incentives provided they meet all other eligibility criteria, become MOSQ within 24 months, and are not separated from the SELRES.  Soldier must be coded 9994, excess due to reorganization in SIDPERS.  Assignment orders must be uploaded to iMARC.

		(2)  Paragraph 3l shows he acknowledged he could be terminated from incentive eligibility with recoupment if he voluntarily transferred out of the Paragraph/Line Number MOS for which the incentive was approved.

4.  Military Department of Nebraska, Office of the Adjutant General, Orders 
080-709, dated 20 March 2012, show the applicant was transferred from one position within the 195th Support Company to another.  The orders also show:

* Purpose:  Unit Reorganization
* Assign/loss reason:  Inactivation, Reorganization or Relocation (IE)
* Modified Table of Organization and Equipment (MTOE); Table of Distribution and Allowances (TDA) paragraph/line number:  101-07
* MOS/AOC:  42A1P
* Position number excess code:  Excess/overstrength due to reorganization (9994)
* Duty position qualification:  Qualified
* Date of assignment/loss reason:  20 March 2012

5.  Military Department of Nebraska, Office of the Adjutant General, Orders
215-728, dated 2 August 2012, show the applicant was transferred from a Human Resources Specialist position in the 195th Forward Support Company to a Human Resources Sergeant position in the 402d Military Police Battalion.  The orders show:

* He accepted an Enlisted Promotion System (EPS) offer for transfer
* Purpose:  EPS Offer
* Assign/loss reason:  Individual's Request (IE)
* MTOE/TDA paragraph/line number:  117-01
* MOS/AOC:  42A2O
* Position number excess code:  None (YYYY)
* Duty position qualification:  Qualified
* Date of assignment/loss reason:  1 August 2012
6.  Military Department of Nebraska, Office of the Adjutant General, Orders 
215-729, dated 2 August 2012, show the applicant was promoted from the rank/grade of specialist/E-4 to sergeant/E-5 effective 1 August 2012.  The orders show:

* He was transferred from one position within the 402d Military Police Company to another.  Purpose:  Unit Reorganization
* He accepted an EPS offer for transfer into MTOE/TDA paragraph/line number:  117-01
* Due to his associated increase in SL, his primary MOS was modified from 42A1O to 42A2O

7.  Military Department of Nebraska, Office of the Adjutant General, Orders 
239-723, dated 26 August 2012, show the applicant was selected for a position through the SWVA process.  As a result, he was transferred from a Human Resources Sergeant position in the 402d Military Police Battalion to a Transportation Management NCO position within Detachment 1, 195th Forward Support Company.  The orders show:

* Purpose:  SWVA Selection
* Assign/loss reason:  Individual's Request (IE)
* MTOE/TDA paragraph/line number:  104-01
* MOS/AOC:  88N2S
* Position number excess code:  None (YYYY)
* Duty position qualification:  Not Qualified
* Date of assignment/loss reason:  20 August 2012

8.  On 14 September 2012, the applicant requested an ETP that would allow him to retain his reenlistment bonus.  He stated he was transferred to the 195th Forward Support Company due to accepting a traditional vacancy for career progression.  He attested that the transfer had changed his DMOS to 88N instead of MOS 42A, for which he had signed a bonus addendum.  He stated he believed that due to the needs of the State and fulfilling those needs, he should be able to retain his bonus.

9.  On 3 April 2013, the Deputy G1, ARNG, NGB, informed the applicant that his request to retain the $10,000 REB was denied and directed the State Incentive Manager to terminate the incentive with recoupment.  The Deputy G1 stated the applicant was not serving in the MOS for which he contracted and noted Orders 239-723, dated 26 August 2012, stated his transfer from MOS/AOC 42A to MOS/AOC88N was due to his "Individual Request" and violated the provisions of ARNG SRIP FY11 (DSIPP).  The incentive could not be validated due to the applicant's voluntary request.
10.  AR 135-7 (ARNG) and Army Reserve - Incentive Programs) prescribes policies and procedures for the administration of the ARNG and the USAR incentive programs.  Incentives and entitlements prescribed by this regulation may specify that an applicant be in a non-prior service, prior service, or in service status.  They may also mandate the completion of specified initial entry training.  Soldiers will have their incentive eligibility and entitlement stopped when any of the termination reasons apply as listed within the applicable chapters of this regulation.  This regulation provides that various reenlistment bonuses are offered to Soldiers who meet several requirements, to include agreeing to serve in a critically short MOS.  Once being declared ineligible as a result of a voluntary action, termination of bonus will not affect a Soldier's responsibility to serve his or her current statutory or contractual service commitment.

11.  The Chief, Personnel Policy Division, NGB published ARNG-HRH Policy Memorandum Number 11-003 on 6 June 2011.  He stated this memorandum was created as clarifying guidance in response to reports from States that the provisions of AR 600-8-19 (Enlisted Promotions and Reductions), chapter 7, as currently written, sometimes result in the States being unable to fill a vacant position.  The SWVA program was developed to assist States with filling valid vacancies and to afford Soldiers an accelerated opportunity for promotion.  The regulation intended to provide for a fair, equitable, and orderly process for promotion of enlisted Soldiers and non-commissioned officers.  The regulation was never intended to provide an obstacle to filling positions.  Therefore, in order to ensure the operation of the regulatory provisions according to their spirit and intent, clarifying guidance was provided, to include:

	a.  This policy is the only NGB-recognized process to fill higher-grade positions outside the standard EPS procedures announced in AR 600-8-19. 

	b.  States may advertise a vacancy through a SWVA only after completing the mandatory requirements in paragraph 3b and still failing to obtain a qualified Soldier.  Such vacancies must be announced for a minimum of 30 days and include distribution to deployed units to ensure all Soldiers have an opportunity to apply.

	c.  Upon selection and subsequent acceptance, the Soldier will be assigned to a valid vacancy.

	d.  Although non-duty MOS qualified Soldiers selected to fill a vacancy by SWVA may be assigned to the position prior to achieving MOS qualification for the position, they may not be promoted until achieving such qualification.  After which, they will be promoted as soon as possible.  Upon meeting all requirements for promotion, the following conditions apply:
		(1)  Soldiers with promotion list status will be administratively assigned to the new career progression MOS (CPMOS) list.  Upon posting of the new promotion list, Soldiers may be promoted.

		(2)  Soldiers without list status will be notified and scheduled for the next annual or supplemental board.  Upon posting of the new promotion list, Soldiers may be promoted.

		(3)  Soldiers are authorized to be promoted out of sequence because their original selection was against an exhausted promotion list.

	e.  All transfer orders for Soldiers selected under the SWVA will reflect the control number in the additional instruction.  The additional instructions will also include all requirements that must be met to meet the promotion criteria of the duty position to which assigned (e.g., MOS qualification, completion of requisite NCO Education System, zone of consideration, etcetera).

	f.  This policy will expire on 30 September 2012 unless sooner rescinded or superseded.

12.  NGB policy memorandum Subject:  ARNG SRIP for FY11, dated 25 July 2011, provided guidance to help leadership and personnel managers meet and sustain ARNG readiness requirements.  SRIP provides recruiting and retention incentives to help fill critical shortages.  Incentives are used when other less costly methods have proven inadequate or ineffective, and only when necessary to support unit and skill requirements.  This policy memorandum provided, in part, the following guidance in the paragraphs indicated:

	a.  7b - The recipient must fill a valid, Automated Unit Vacancy System (AUVS) position in the Recruit Quota Enlistment System (REQUEST) or the Army Automated Reenlistment Reclassification System (RETAIN).  The AUVS is the system of record for determining valid vacancies for incentives.

	b.  7g - An incentive addendum must have an approved automated control number (CN) issued on or before the date of the service agreement.  The CN is valid only for the incentive addendum that it is requested and approved for.

	c.  7h - Soldiers shall serve satisfactorily in the authorized MOS/AOC for the full term of the service agreement, except for authorized exceptions.

	d.  7t - AR 601-210 governs suspension, reinstatement, termination, and recoupment of incentives.  This policy supplements the regulation with specific criteria for each incentive.
	e.  7u - Soldiers may continue to receive full incentive payment, if otherwise eligible, when they are transferred or reassigned in accordance with AR 601-210.

	f.  12 - Soldiers reenlisting for an REB must be the primary position holders in an authorized military grade and skill qualification commensurate with the positions for which they are reenlisting/extending.

	g.  20 - Entitlement to an incentive will be terminated when any of the termination reasons in AR 601-210 apply before the fulfillment of the service described in the member's written agreement.

	h.  21b - Soldiers whose MOS is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized, or converted are entitled to continue receiving incentives provided they meet all other eligibility criteria, become DMOSQ within 24 months, and are not separated from the SELRES.  Soldiers must be coded 9994, excess due to reorganization to continue receiving incentives provided they meet all other eligibility criteria, become Duty MOS qualified (DMOSQ) in SIDPERS (9995 Total Army Personnel Database - Guard (TAPDB-G) code).  

	i.  21m - Soldiers who voluntarily transfer out of the CS position for which the incentive is approved will be subject to termination of entitlement with recoupment.

	j.  25 - The Chief, Education, Incentives, and Employment Division is the proponent for this policy and is the authority for ETP determinations.  All ETPs will be initiated by the Soldiers and routed through their chain of command to the State Incentive Manager and State Military Personnel Officer, to the Incentive Operation Team for action.

13.  AR 601-210, paragraph 10-5, provides guidance for continued receipt of incentives.  It stipulates, in part, the following guidance in the paragraphs indicated:

	a.  10-5a(3) - A Soldier may be eligible for continue receipt of incentives when transfer is at the convenience of the Government and authorized by the CNGB or CAR.  The Soldier must become MOS qualified in the new skill within 24 months or incentives will be terminated.

	b.  10-8(5) - Incentive eligibility will be stopped and the Soldier shall not be eligible to receive any further incentive payments, except for service performed before the termination date, when they voluntarily move to a nonbonus unit or MOS.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an ETP in order to retain entitlement to a $10,000 REB that he contracted for under the provisions of the ARNG SRIP for FY11 was carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant signed a written agreement for a $10,000 REB at the time of reenlistment in the NEARNG for a period of 6 years on 28 September 2011.

3.  The terms of his written agreement for the REB stipulated that in order to remain eligible for the incentive, he was obligated to serve in the same skill (MOS 42A) for which the bonus was approved unless excused for the convenience of the Government.  This agreement further stipulated he could be terminated from incentive eligibility with recoupment if he voluntarily transferred out of the Paragraph/Line Number MOS for which the incentive was approved.

4.  The applicant contends he was transferred at the convenience of the Government.  However, the evidence shows he voluntarily applied for transfer to an MOS 88N position in order to receive an accelerated promotion under the provisions of the SWVA process.  He subsequently requested an ETP which was denied by the NGB due to the fact he was no longer serving in the MOS for which he contracted.  As a result, the State Incentive Manager was directed to terminate the applicant's incentive bonus with recoupment.

5.  In spite of the applicant's contention that his transfer orders contain an improper code, a review of the governing policy shows they are properly constituted.  Additionally, he admits the governing regulation contains no provision for preparing the orders in the manner in which he "believes" they should have been prepared.  Therefore, his allegation is unfounded.

6.  The Army has limited funds to apply to bonuses and they must be applied prudently to maximize the Army's return on its investment by ensuring that only those eligible to receive them do so.  As a result, he is not entitled to the requested relief.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20130012104



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ABCMR Record of Proceedings (cont)                                         AR20130012104



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