IN THE CASE OF:	   

		BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130012258 


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 reconsideration of his earlier request for payment of a $20,000.00 Selected Reserve Incentive Program (SRIP) enlistment bonus.

2.  The applicant states:

* he is incapable of continuing on active duty or returning to the Army National Guard (ARNG) due to injuries sustained during his initial Active Army commitment
* a medical evaluation board found him physically unfit 
* his DA Forms 199 (Informal Physical Evaluation Board (PEB) Proceedings shows he is not retainable 
* none of his contractual documents prohibit him from collecting his entitled bonuses
* he was discharged due to medical reasons

3.  The applicant provides:

* self-authored statements
* 2 DA Forms 199
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120006261, on 12 February 2013.

2.  The applicant has submitted new arguments and copies of his DA Forms 199 which were not previously considered by the Board.  The new evidence and arguments warrant consideration at this time.

3.  On 26 February 2009, the applicant enlisted in the Virginia Army National Guard (VAARNG) for a period of 8 years under the Active First Program (AFP).

4.  On 26 February 2009, he executed a DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States) which shows he acknowledged the following incentives in Section IV (Certification), item 32 (Specific Options/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees):

* Non Prior Service (NPS) Montgomery GI Bill Kicker - $350.00
* U.S. Army High GRAD (HIGRAD) Bonus
* Unit NPS Student Loan Repayment Program (LRP) - $20,000.00
* Critical Skill Projected Vacancy - $20,000.00 (6 year) U.S. Army 8 year Military Service Enlistment Bonus

5.  His National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 - NPS Enlistment Bonus Addendum ARNG of the United States) shows he acknowledged the following:

	a.  Section II (Eligibility), paragraphs 6 and 7 – he enlisted into Critical Skill Military Occupational Specialty (MOS) 68W (Healthcare Specialist) and he would receive an NPS critical skill bonus payable in two installments.

	b.  Section III (Payments) - he would receive a total bonus of $20,000.00, less taxes, with receipt of first payment upon completion of initial active duty training (IADT) and award of his critical skill MOS; and receipt of the second and final payment on the 36th-month anniversary of his date of enlistment.

6.  The Guard Annex (Enlistment/Reenlistment Agreement ARNG Service Requirements and Methods of Fulfillment), Section IV (Acknowledgement) shows: 

	a.  the applicant acknowledged he was qualified and enlisting for an MOS that has a cash bonus, that the bonus amount authorized on his enlistment in the 

Regular Army (RA) would be the amount authorized upon his entry into the ARNG; and

	b.  the bonus on that date (26 February 2009) was $12,000.00 authorized by Headquarters, Department of the Army, DAPE-MPA, Enlisted Incentives Program effective 30 October 2008.

7.  A DD Form 368 (Request for Conditional Release), dated 23 September 2009, shows the applicant's recruiter initiated a request for his conditional release from the ARNG that was approved effective upon his date of graduation from advanced individual training.  It also shows the applicant was administered an oath of enlistment into the RA.

8.  A DA Form 4856 (Development Counseling Form) prepared on 24 September 2009 shows an Active First Technician counseled the applicant concerning his contractual options as a participant in the ARNG AFP.  The applicant was provided the following two options to fulfill his commitment in the Active Army or return to his ARNG unit:

	a.  "Soldier will continue path to transition in the Active Army as per his ‘Active First’ contract"; or

	b.  "Soldier will continue path into the Active Army, but will return to his ARNG unit.  By not continuing in the Active First, Soldier is aware that he will be forfeiting ALL bonus entitlements."

   c.  He elected the first option, to transition into the Active Army per his "Active First" contract.

9.  On 24 September 2009, the applicant enlisted in the RA for a period of 3 years and 28 weeks under the AFP.

10.  On 6 April 2012, the Office of the Deputy Chief of Staff, G-1, Chief, Incentives and Budget Branch provided an advisory opinion which stated:

	a.  the AFP was an ARNG initiative that first enlisted a recruit into the ARNG for 8 years, where the recruit would first serve 3 - 4 years in the active Army, and return to the ARNG to complete the remainder of his/her contract after separation from the Army.

	b.  the recruit would sign a conventional contract with the ARNG with incentives based on his/her selected MOS and once the Soldier enters the active Army, the ARNG incentives would become void.  The Soldier would receive a new set of incentives under the Active Army incentive programs.

	c.  the applicant enlisted in the ARNG in MOS 68W on 26 February 2009.  His contract included the following incentives:

* Critical skill bonus of $20,000.00
* Loan Repayment Program (LRP) up to $20,000.00
* Montgomery GI Bill Kicker of $350.00 per month

   d.  these incentives are only paid if the Soldier serves out the full ARNG contract.  Once he/she enters active duty, his/her incentives are recomputed based on the Active Army incentives message that is in effect upon enlistment.

	e.  the applicant went on active duty on 24 September 2009 and his contract included the following incentives:

* a High Grad (HIGRAD) bonus of $3,000.00
* an MOS bonus (reduced for loan repayment option) of $1,000.00
* $8,000.00, 8 year Military Service Obligation (MSO) bonus (totaling $12,000.00 plus student loan repayment)

	f.  by statute, a Soldier can only receive bonuses for the period of service currently serving.  Therefore, the Soldier falls under the RA incentives effective 24 September 2009, and is only entitled to the incentives contracted for under that enlistment agreement.  Accordingly, the advisory opinion recommended denial of his request.

11.  On 6 April 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or rebuttal.  On 13 April 2012, the applicant submitted his response wherein he stated:

	a.  his DD Form 1966/3 includes his HIGRAD, LRP, and 8 year MSO bonus totaling $12,000.00 and his critical skill vacancy bonus of $20,000.00.

	b.  MEPS officials never presented him a form stipulating what would happen if he shipped to basic training and continued the AFP rather than returning to his ARNG unit, as he subsequently was informed he was supposed to sign.

	c.  there was no way for him to know he would forfeit his ARNG incentives by electing to continue in the AFP.

	d.  the DA Form 4856 only provided the option of continuing in the AFP to receive his contractual incentives or return to the ARNG and void all contractual incentives, indicating he had no other means of receiving his bonuses except through his continuance on active duty, which he elected.

	e.  the $20,000.00 critical skill bonus is clearly annexed to his enlistment contract.

	f.  from a logical perspective, there is no justifiable reason he would have chosen a $12,000.00 bonus over a $20,000.00 bonus, considering:

* he could have enlisted directly into the RA through an RA recruiter instead of going through the ARNG
* he was presented the $20,000.00 ARNG bonus and the $12,000.00 RA bonus for enlisting under the AFP in writing; neither of these documents show that one bonus will counteract the other or that receipt of both is invalid
* he should not be denied what is rightfully his based on the MEP official's failure to properly enlist him or provide him proper guidance

12.  The applicant provides self-authored statements and two copies of his DA Form 199 which shows that:

* on 18 March 2013, an informal PEB found him physically unfit and recommended a disability rating of 10 percent for left knee osteochondral defect and that he be separated with severance pay
* on 15 April 2013, an informal PEB found him physically unfit and recommended a disability rating of 30 percent and a permanent disability retirement due to:

*	left knee osteochondral defect, rated 10 percent
*	right knee osteochondral defect, rated 10 percent
*	bilateral pes planus, rated 10 percent

13.  On 16 April 2013, the applicant concurred with the informal PEB findings and recommendations, waived his rights to a formal hearing, and declined reconsideration of his rating.

14.  On 2 July 2013, the applicant was honorably retired and permanently retired due to a disability.

15.  National Guard Bureau, Memorandum, Subject:  ARNG "Active First" Enlistment Option Pilot Program, (NGB-ARH Policy Memorandum, Number
07-323), dated 7 October 2007, authorized this program and established its general framework and governing policy that includes three phases.  Paragraph 8c(1) provides for Phase 3 of this program and presents the Soldier's options upon completion of the Initial Active Army commitment.  It states, in accordance with the terms of the "Active First" Annex to the Soldier's enlistment contract, upon completion of his/her initial active Army obligation, a Soldier may either reenlist in the Active Army or be released from active duty to transition to an ARNG Modified Table of Organization and Equipment/Table of Distribution and Allowances (MTOE/TDA) unit.  At the transition point, the "Active First" Soldier must see the Reserve Component Career Counselor to select a unit of assignment and complete the necessary documents to enlist into the ARNG.  Upon arrival to the ARNG unit, Soldier will receive the "Active First" affiliation bonus as reflected in his/her contract and subject to applicable law and policy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the VAARNG on 26 February 2009 for a period of 8 years under the "AFP" and he entered initial entry training on 24 September 2009.

2.  While he contracted for an affiliation bonus upon his enlistment in the VAARNG, he enlisted under the AFP wherein he agreed to perform active duty service in the RA first for a period of 3 years and 28 weeks.

3.  When the applicant entered active duty, the $20,000 bonus was, in effect, suspended.  The applicant enlisted in the RA and was paid the $12,000.00 bonus as stipulated in his contract.  By statute, a Soldier can only receive bonuses for the period of service he is currently serving.

4.  Although the applicant contracted with the ARNG for a bonus, unfortunately he could not transfer to the ARNG after his RA service.  While he may feel he has been unfairly deprived of a bonus because of his disability retirement, there is no basis for the Army or ARNG to pay a bonus without having received at least a portion of the service required by the bonus contract.  Therefore, there appears to be no error or injustice in the applicant's record as it relates to any authorized bonuses.

5.  In view of the foregoing, the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR 20120006261, dated 12 February 2013.




      _______ _   _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)                                         AR20130012258



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ABCMR Record of Proceedings (cont)                                         AR20130012258



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