BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130013373 


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 that the recoupment of a Reenlistment/Extension Bonus (REB) in the amount of $4,791.67 and a Military Occupational Specialty Conversion Bonus (MOSCB) in the amount of $833.33 be cancelled.

2.  The applicant states that when he applied for the Inactive National Guard (ING) he was told by Staff Sergeant (SSG) B_____ there would no chance he would have to pay back any bonus.  He trusted SSG B_____ and he believes he was misled. He did not have access to any files to check the dates; he was going on the word of a member of his chain of command.  He was led to believe he would finish out his service in the ING with no repercussions.

3.  The applicant provides:

* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 18 March 2006
* National Guard Bureau (NGB) Form 600-7-3-R-E (Annex E to DD Form 4 or DA Form 4836, Reenlistment/Extension Bonus Addendum, Army National Guard of the United States), dated 18 March 2006
* Orders 108-005 issued by Joint Force Headquarters, Maine National Guard, dated 17 April 2012
* Orders 130-004 issued by Joint Force Headquarters, Maine National Guard, dated 9 May 2012
* memorandum from Joint Force Headquarters, Maine National Guard, dated 5 June 2013

CONSIDERATION OF EVIDENCE:

1.  On 21 April 1997, the applicant enlisted in the Maine Army National Guard (MEARNG) for a 6-year term of service.  He completed training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  

2.  A DA Form 4836, dated 26 March 2003, shows the applicant extended his enlistment in the MEARNG by 3 years, thereby changing his expiration of term of service (ETS) date to 26 March 2006.

3.  A DA Form 4836, dated 18 March 2006, shows the applicant extended his enlistment in the MEARNG by 6 years, thereby changing his ETS date to 20 April 2012.  He signed the document on 18 March 2006.

4.  An NGB Form 600-7-3-R, dated 18 March 2006, shows in Section III (Bonus Amount and Payments) the applicant extended his enlisted for a $15,000.00 bonus.  Initial payment of 50 percent ($7,500.00) would be processed on the date his extension contract took effect (one day after current ETS).  The second and final payment of 50 percent ($7,500.00) would be processed on the 36-month anniversary of the date of extension.  Section V (Termination) states, "I understand that I will be terminated from the bonus eligibility with recoupment, if I fail to extend my enlistment for the time in the ING within 30 days after return to my unit.  Recoupment is required from the effective date of transfer to the ING."  He initialed and signed the document on 18 March 2006.

5.  A DA Form 1059 (Academic Evaluation Report), dated 9 August 2008, shows the applicant completed Phase II of the Heavy Construction Equipment Operator Course in MOS 21E.

6.  By memorandum, dated 9 August 2008, the applicant volunteered for the ARNG, MOSCB Program in MOS 21E under the provisions of an Education and Incentive Operations Message (EIOM), dated 14 February 2006.  He agreed to serve 3 years after completion of training and award of MOS, and be awarded the ARNG MOSCB of $2,000.00.  He acknowledged that failure to complete the 3-year requirement in the new primary MOS (PMOS) because of voluntarily or because of misconduct being reclassified out of the new PMOS or not completing the required 3 years would result in him having to refund to the U.S. an amount that bears the same ratio to the bonus amount paid to him as the unserved part of such period bears to the total period agreed to be served.

7.  On 18 August 2008, the MEARNG published Orders 231-010 awarding him PMOS 21E and secondary MOS (SMOS) 13B, effective 9 August 2008.

8.  Orders 193-004, dated 12 July 2010, issued by JFH, Maine National Guard, show the applicant was transferred to the ING, effective 1 July 2010.  Additional instructions stated, "Education/Incentive participants are subject as required by Federal and/or State Statutes to suspension, termination and/or recoupment of benefits as a result of failing to meet terms and conditions of their contract."

9.  Orders 108-005, dated 17 April 2012, issued by the JFH, Maine Nation Guard, show the applicant was discharged from the ARNG and as a reserve of the Army effective 20 April 2012 after completing 15 years of service for pay.

10.  Orders 130-004, dated 9 May 2012, issued by the JFH, Maine National Guard, amended Orders 108-005, dated 17 April 2012, to read "SRIP:  YES TERMINATION: YES SM was authorized 1 year in the ING in order to retain bonus SM must extend enlistment for the time served in the ING within 30 days.  SM discharged from the ING.  Recoupment effective date of transfer 2010JUN01 Reenlistment 6yr BONUS - contracted $15,000  Satisfactory months completed 49.  Termination date 20100601.  Recoupment amount $4,791.67 MOSC 3yr Bonus - contracted $2,000.  Satisfactory months 21.  Termination dated 20100601.  Recoupment amount $833.33 MEMBER RECEIVED TWO BONUS."

11.  On 1 May 2013, the Deputy G-1, NGB, notified the applicant that his request for an exception to policy (ETP) to retain his $15,000.00 REB was denied.  The official stated the applicant was discharged prior to completion of the service obligation for his REB.

12.  On 5 June 2013, the Deputy G-1, NGB, notified the applicant that his request for an ETP to retain his $2,000.00 MOSCB was denied.  The official stated the applicant exceeded the authorized period of non-availability in the ING and/or failed to extend for the period of non-availability within the required time upon returning to an active status.

13.  On 5 June 2013, the State Incentives Manager, MEARNG, notified the applicant of pending action to recoup $4,791.67 of his REB and $833.33 of his MOSCB.

14.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) prescribes policies and procedures for the administration of the ARNG of the United States incentive programs and is used for the SRIP, which includes enlistment bonus, REB, affiliation bonus, Student Loan Repayment Program, and the civilian acquired skills program.  Paragraph 3-9 (termination with recoupment) states termination of entitlement and eligibility for the reenlistment bonus takes 

effect when a member fails to extend, no later than 30 days of return to active status, for the period served in the ING.

15.  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007, 2008 and 2009, (10 August 2007 - 30 September 2009) with Updates (Policy Number 07-06), dated 10 August 2007, states the ARNG offers an MOSCB of $2,000 to eligible Soldiers directed by the Chief, NGB or the Deputy Chief of Staff, GI, as appropriate to voluntarily or involuntarily (due to unit reorganization, transformation, inactivation or the needs of the ARNG) reclassify into a targeted shortage MOS.

16.  DOD Financial Management Regulation 7000.14-R, Volume 7A, chapter 2, paragraph 020201 states when the conditions of a written agreement are not fulfilled, and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of the pay or benefit received.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support cancellation of recoupment of a prorated portion of the applicant's REB and MOSCB.

2.  The basic issue in this case is the applicant's failure to serve in an active status in the MEARNG for the contractual period of 6 years.  On 18 March 2006, he signed an REP contract that clearly stated he would be terminated from bonus eligibility with recoupment if he exceeded the maximum time in the ING.  He was assigned to the ING effective 1 June 2010, and he remained in this status until he was transferred to a unit effective 20 April 2012 for the purpose of discharge, a period of approximately 22 months.  His discharge orders, as amended, show his bonus was terminated with recoupment effective 1 June 2010, the date he was discharged.

3.  The terms of his REB contract clearly stated he could not remain in an inactive status for more than a year.  It was his responsibility to maintain his bonus eligibility by returning to a drilling status and extending his enlistment for a period equivalent to his time in an inactive status.  He did neither, even though he had ample time to take action considering that the MEARNG did not discharge him until he had been in the ING for well over a year.

4.  On 9 August 2008, the applicant volunteered for the MOSCB program.  He agreed to serve 3 years after completion of training and award of MOS 21E.  He completed training and he was awarded the MOSCB.  Prior to him completing 

this contractual agreement of 3 years, he requested transfer to the ING on 1 June 2010.  On 20 April 2012, he was discharged for ETS.

5.  There is no evidence and the applicant has not provided evidence that shows he was misinformed or misled regarding recoupment of his bonuses.  At the time, the applicant had 15 years of service and experience in the MEARNG.  In addition, he acknowledged on both REB and MOSCB that he understood the bonus monies could be recouped if he failed to meet the requirements for either bonus. 

6.  The applicant failed to complete the terms of his contracts and the incentives were terminated with recoupment.  As such, his State requested a recoupment of the unearned portion of the bonuses.  There is neither an error nor an injustice.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130013373



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ABCMR Record of Proceedings (cont)                                         AR20130013373



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