BOARD DATE: 10 September 2013

		DOCKET NUMBER:  AR20130012171 


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, correction of his military records to show he remains entitled to his $15,000 Prior Service Enlistment Bonus (PSEB) and cancellation of all recoupment action.

2.  The applicant states he was not properly counseled or taken care of by his unit leadership, which was the reason for him not qualifying in his military occupational specialty (MOS) within 24 months.  Due to unforeseen circumstances he was unable to receive a security clearance.  He was directed to change his MOS on his bonus addendum from 25U to 11C.  His bonus addendum was not signed by an authorizing official, the same official who conducted his field enlistment.  A Soldier should not be blamed for someone else's negligence.  A request for an exception to policy (ETP) was submitted and denied. 

3.  The applicant provides copies of:

* his 7 June 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his 30 November 2007 DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* his 30 November 2007 National Guard Bureau (NGB) Form 21 (Annex  
A – DD Form 4 (Enlistment/Reenlistment Agreement))
* his undated NGB Form 600-7-6-R-E (Annex X to DD Form 4 (Prior Service Enlistment Bonus Addendum, Army National Guard (ARNG) of the United States))
* 30 November 2009 A Company, 38th Special Troops Battalion, memorandum
* chronological listing of actions pertaining to the applicant's enlistment bonus for the period 1 June 2009 to 9 November 2011
* his ETP checklist
* Annex X to the DD Form 4, undated 
* 10 December 2011 Bravo Company, 2nd Battalion, 121st Infantry, memorandum
* his 10 December 2011 DA Form 2823 (Sworn Statement)
* 29 February 2012 Joint Forces Headquarters Indiana, Indiana National Guard memorandum
* his 14 April 2012 DA Form 2823
* 29 May 2012 NGB memorandum
* 14 June 2012 Joint Forces Headquarters Indiana, Indiana National Guard, memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant is a sergeant/E-5 in the Indiana ARNG (INARNG).

2.  In support of his request the applicant provided documents showing that:

	a.  Following prior service in the U.S. Marine Corps (USMC), he enlisted in the INARNG on 30 November 2007.  

	b.  In conjunction with that enlistment:

		(1)  An NGB Form 21, dated 30 November 2007, shows in Section III (Explanation to Applicant) this was the enlistment of a prior service member with a remaining statutory military service obligation and he understood he would undergo training in primary MOS 25U2O.  The applicant and the battalion adjutant signed the form.

		(2)  An NGB Form 600-7-6-R-E, undated, shows the applicant's initials in  Section II (Eligibility) item 2b:  "I am not qualified in the MOS for which I am enlisting, but have enlisted into an MTOE unit in critical skill (CS) 25U2O (this was lined through and 11C2O and the applicant's initials and 09Sep21 are handwritten) and agree to attend formal training and become qualified in my contracted MOS within 24 months of my date of enlistment.  I understand my initial bonus payment will not be processed until I become duty MOS qualified."  He also initialed in Section III (Bonus Amount and Payments) indicating the $15,000 bonus would be paid in two $7,500 installments.  The applicant's signature is on the form, but there is no signature of the authorizing representative.

	c.  In his sworn statement, dated 10 December 2011, he indicated that he entered into a contract with the ARNG and he has fulfilled all of the eligibility requirements, but not in the time period stated in the bonus addendum.  He was unable to obtain the security clearance required for MOS 25U2O so he arranged with the "bonus manager" to select MOS 11C2O on 21 September 2009.  He was informed that if he passed the deadline he could keep the bonus if this was not his own fault.  He finally completed training in MOS 11C2O in February 2010 and received his bonus payment in December 2010.  He received the entire bonus at that time.  He believes he should not be held accountable for this action.  He would not have been given the bonus if it was not authorized.  If he has to return the $15,000 bonus it would cause a financial burden on his family.

	d.  In his sworn statement, dated 14 April 2012, he indicates that on
30 November 2007 he signed a bonus addendum in the presence of his recruiter, Sergeant First Class (SFC) Jeremy H____, and Captain (CPT) Maurice C____, who was the certifying officer of his enlistment.  He did not date the contract because his recruiter told him he (the recruiter) would fill the date in later once he found out which unit the applicant was going to.  In Section VIII of Annex X to the DD Form 4 he provided the information that was asked of him.  He had prior service in the USMC, but all this was new to him as it was a field enlistment.

	e.  An A Company, 38th Special Troops, memorandum, dated 30 November 2009, and signed by the commander, states the applicant is not at fault for not being MOS qualified.  He was not properly counseled or taken care of by his unit leadership.  Due to unforeseen circumstances he is unable to receive a security clearance.  Upon reclassification into MOS 11C he deserves to receive his bonus.

	f.  A B Company, 2nd Battalion, 151st Infantry, memorandum, dated 
10 December 2011, states the applicant has been notified of a possible bonus recoupment action because he was delinquent in becoming MOS qualified due to circumstances beyond his control.  The memorandum indicates the recoupment is not justified because the applicant was never paid his bonus on the original contract.  He has an addendum indicating that on 28 September 2009 he selected MOS 11C2O which should have re-started his two-year deadline to complete his contract.  He graduated from MOS 11C2O training on 27 February 2010 (five months after signing the addendum).

	g.  A 29 February 2012 INARNG memorandum which indicates the applicant should retain the full amount of the bonus without recoupment. 
	h.  A 29 May 2012 NGB memorandum denying the applicant's request to retain the $15,000 PSEB.  The memorandum indicates the applicant enlisted in the INARNG on 30 November 2007 for the PSEB in (CS) MOS 25C.  The original addendum was altered as it was missing the required name and rank of the Enlisting Official, and date of signature as required under Section IX (Certification by Service Representative) on page 4, as well as the date signed by the Soldier.  The applicant was subsequently denied the required security clearance for MOS 25U due to a number of traffic violations.  On 21 September 2009, another addendum was furnished which contained pen and ink changes which annotated a change in the bonus MOS 25C to MOS 11C.  In addition, the applicant failed to become Duty MOS qualified within the required 24 months from his date of enlistment.  Therefore the State will terminate the incentive with full recoupment of the $15,000 incentive.  The applicant was advised he could file a claim with the ABCMR if he believed an error or injustice existed.

3.  In the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB, Arlington, Virginia.  The opining official states the INARNG is responsible for the administrative errors relating to the handling of the applicant's PSEB.  He recommends the applicant be given full administrative relief and that there should be no recoupment of the funds. 

4.  On 9 July 2013, a copy of the advisory opinion was forwarded to the applicant for information and to allow him an opportunity to submit comments or a rebuttal.  No response was received.

5.  Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that bonus repayment will not be required, if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the applicant entered into a contract with the understanding he was entitled to an enlistment bonus.  

2.  In accordance with the recommendation of the NGB, it would be appropriate to correct the applicant's military records to show he remains entitled to his enlistment bonus and any recoupment action should be cancelled.

3.  In view of the above, the applicant's request should be granted.



BOARD VOTE:

___x__  __x______  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State ARNG and Department of the Army records of the individual concerned be corrected by:

	a.  showing the appropriate authority approved a waiver of the bonus recoupment action, entitling the applicant to retain his enlistment bonus; and

	b.  repaying him all monies that may have been recouped relating to this enlistment bonus out of ARNG funds.



      _________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)                                         AR20110020775



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ABCMR Record of Proceedings (cont)                                         AR20130012171



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