IN THE CASE OF:	  

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130014110 


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 correction of her military service records to show entitlement to a $10,000.00 Non-Prior Service Enlistment Bonus (NPSEB).

2.  The applicant states she enlisted in the Delaware Army National Guard (DEARNG) in August 2009 for an NPSEB and training in military occupational specialty (MOS) 88M (Motor Transport Operator).  She completed initial entry training and received the initial NPSEB payment of $5,000.00.   She was later told that the final payment of the NPSEB would not be paid and the initial payment would be recouped.

   a.  A request for exception to policy (ETP) was submitted on her behalf by the DEARNG explaining that mistakes made by officials at the Military Entrance Processing Station caused the errors in her enlistment contract.

   b.  The National Guard Bureau (NGB) denied the request for an ETP stating that the DD Form 1966 (Record of Military Processing - Armed Forces of the United States) and DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) do not show an enlistment bonus.

   c.  She notes that her contract does include a Bonus Addendum with a Bonus Control Number (BCN) and that the administrative error in the contract was not due to her fault.  She adds that she completed training in MOS 88M, deployed overseas, and has served honorably in the DEARNG.  Therefore, at a minimum the initial $5,000.00 payment of the NPSEB should not be recouped.
3.  The applicant provides copies of documents related to her enlistment and the action taken to obtain her enlistment bonus.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 1966-Series was prepared by an Army official on the occasion of processing the applicant for her entrance into the ARNG on 12 August 2009.

	a.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), section a, shows she enlisted for, in pertinent part, "6x2 - 6 years MOS 88M1O ARNG Standard Training Program."

   b.  The applicant and Army official signed the document.

2.  A DD Form 4 shows the applicant enlisted in the ARNG of the United States (ARNGUS) and the DEARNG for a period of 1 year on 12 August 2009.  The applicant, a service representative, and enlisting officer signed the document.

3.  A Guard Annex (Enlistment/Reenlistment Agreement - ARNG Service Requirements and Methods of Fulfillment) shows in:

   a.  Section III (Explanation to Applicant) that the applicant's initial enlistment was as an NPS member.  It further shows, "Unless otherwise stipulated on an Annex attached to the DD Form 4, I will enter and satisfactorily complete an initial period of active duty for training (ADT) to become qualified in an MOS as soon as a training space is available.
   
   b.  Section IV (Acknowledgement), in pertinent part:

    	(1)  I agree to serve 6 years as an assigned member of a troop program unit (TPU) in the Selected Reserve, 2 years as an assigned member of the Individual Ready Reserve (IRR).  I may voluntarily elect to remain assigned and continue to satisfactorily participate as a member of a TPU.

    	(2)  I am enlisting under the program or programs as indicated below:  School course, I have been assured of attending the School course for:  "MOS 88M - Motor Transport Operator."

   c.  Section VII (Addendums) states, "The following addendums have been attached and are part of my enlistment agreement:  Montgomery GI Bill."

   d.  The applicant and an Army official signed the form on 12 August 2009.
4.  Annex E to DD Form 4 (NPSEB Addendum - ARNGUS) shows the applicant enlisted into MOS 88M, a critical skill (CS) MOS, to serve no less than 6 years in a paid drill status for $10,000.00 and she would receive an NPS CS bonus.

   a.  The header of Annex E shows, BCN:  "EB09070003DE."  (The BCN is not recorded at the bottom of page 6 of Annex E.)

	b.  The instructions show the first bonus payment of 50 percent of the total was authorized to be paid upon completion of ADT and award of the bonus MOS. The second payment of 50 percent was to be paid on the 36-month anniversary of the date of enlistment.

   c.  The Army representative signed the form on 12 August 2009 and the applicant signed the form on 28 September 2009.

5.  A DD Form 4 shows the applicant enlisted in the ARNGUS for a period of 
7 years and 44 weeks and in the DEARNG for a period of 6 years on 
28 September 2009.  The applicant, a service representative, and enlisting officer signed the document.

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 16 February 2010, was honorably released from ADT on 18 June 2010, and transferred to the DEARNG.  It also shows she completed the Motor Transport Operator course and was awarded primary MOS (PMOS) 88M1O.

7.  The applicant was promoted to specialist (E-4) on 1 October 2011 in PMOS 88M10.

8.  A DD Form 214 shows the applicant entered active duty in support of Operation Enduring Freedom on 25 May 2011, was honorably released from active duty on 6 July 2012, and transferred to a DEARNG unit.

9.  In support of her application the applicant provides a copy of an NGB memorandum, dated 3 August 2012, subject:  Request for ETP for NPSEB (Applicant), that shows the NGB Deputy G-1 stated:

   a.  in accordance with ARNG Selected Reserve Incentive Program Guidance, Policy Number 07-06 with updates (effective 1 March 2009 to 15 June 2010), eligible applicants were offered the NPSEB, and

	b.  the applicant enlisted in the DEARNG on 12 August 2009 for the NPSEB in CS MOS 88M.  
   c.  He stated that a review of the applicant's DD Form 1966 and DD Form 4 do not support an incentive being offered at the time of enlistment.  Thus, the intent of the Government to offer the applicant an incentive in connection with her enlistment cannot be validated.
   
   d.  He noted that the NPSEB Addendum was signed by the applicant on
28 September 2009 and indicated that the BCN was not requested until 
30 September 2009.

	e.  The applicant's request to retain the $10,000.00 NPSEB was denied and the State Incentive Manager (IM) was instructed to terminate the incentive with recoupment.

10.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines ARNGUS and U.S. Army Reserve service obligations.  It also prescribes policies and procedures governing the various types of service obligations and participation requirements.  Chapter 2 (Service Obligations), paragraph 2-1, states the statutory military service obligation (MSO) is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment.  On or after
1 June 1984, all Soldiers incurred an 8-years statutory MSO.

11.  Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 56 (Selected Reserve Accession, Affiliation, Enlistment, and Reenlistment Bonuses), paragraph 560302 (Affiliation Bonus), provides that the Secretary concerned will designate the skills, units, and pay grades for which an affiliation bonus may be paid.

	a.  Any skill, unit, or pay grade so designated will be a skill, unit, or pay grade for which there is a critical need for personnel in the Selected Reserve of the Ready Reserve of an Armed Force, as determined by the Secretary concerned.

	b.  The Secretary concerned will establish other requirements to ensure that members accepted for affiliation meet required performance and discipline standards.

		(1)  The amount of a bonus may not exceed $20,000.00.

		(2)  Upon acceptance of a written agreement by the Secretary concerned, the total amount of the bonus payable under the agreement becomes fixed.  The agreement will specify whether the bonus will be paid by the Secretary concerned in a lump sum or installments.
		(3)  A member who enters into an agreement and receives all or part of the bonus under the agreement, but who does not commence to serve in the Selected Reserve or does not satisfactorily participate in the Selected Reserve for the total period of service specified in the agreement, will be subject to the 
repayment provisions of chapter 2.

   c.  Chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following: 

    	(1)  contrary to a personnel policy or management objective;

    	(2)  against equity and good conscience; or 

    	(3)  contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to show entitlement to a $10,000.00 NPSEB because she enlisted in the DEARNG with an NPSEB for MOS 88M, she completed the training requirements, and she was awarded the MOS.  However, the NGB directed the DEARNG State IM to terminate the incentive with recoupment because the intent of the Government to offer her an incentive in connection with her enlistment cannot be validated.

2.  Records show the applicant was processed for enlistment in the ARNGUS and DEARNG on 12 August 2009 for training in MOS 88M and a DD Form 4 was completed on that date.  However, for reasons that are not clear, Army officials enlisted the applicant for a period of 1 year (not the statutory MSO of 8 years).

3.  On that same date, the applicant completed an Enlistment/Reenlistment Agreement - ARNG Service Requirements and Methods of Fulfillment that shows, in conjunction with her enlistment as an NPS member, she agreed to complete an initial period of ADT to become qualified in an MOS as soon as a training space is available.  She also agreed to serve 6 years as an assigned member of a TPU in the Selected Reserve and 2 years as an assigned member of the IRR.


4.  The evidence of record also shows an Army service representative completed an NPSEB Addendum, on 12 August 2009, for the applicant to enlist into MOS 88M (a CS MOS) to serve no less than 6 years in a paid drill status for $10,000.00 and that she would receive an NPS CS bonus.  In addition, the NPSEP Addendum shows a BCN.

5.  Records show, on 28 September 2009, the applicant was processed for enlistment in the ARNGUS for a period of 7 years and 44 weeks, and in the DEARNG for a period of 6 years.  Thus, the evidence of record suggests that Army officials recognized the error made on the applicant's initial DD Form 4 with respect to the enlistment contract not reflecting the correct term of her MSO and her DEARNG service obligation.  Records also show Army officials obtained the applicant's signature on the NPSEB Addendum on that same date.  Thus, the evidence of record clearly shows that the applicant was offered an incentive and that she understood she had enlisted for an NPSEB.  Therefore, the applicant's contention has merit.

6.  Records show the applicant completed training and was awarded CS MOS 88M as her PMOS to satisfy the requirements for the first bonus payment of 50 percent (i.e., $5,000.00).  In addition, the evidence of record shows she completed 36 months of service to satisfy the requirement for the second payment of 50 percent (i.e., $5,000.00).

7.  On 3 August 2012, three years after the applicant's enlistment in the ARNG, the NGB denied the applicant's request for an ETP for the $10,000.00 NPSEB and the State IM was instructed to terminate the incentive with recoupment.  However, the evidence of record does not support (emphasis added) the NGB's determination that "the intent of the Government to offer [the applicant] an incentive in connection with her enlistment cannot be validated."

8.  Therefore, in view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show she satisfied the requirements for entitlement to a $10,000.00 NPSEB.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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

	a.  showing she was granted an exception to policy to show she satisfied the requirements for entitlement to a $10,000.00 Non-Prior Service Enlistment Bonus in a critical skill bonus military occupational specialty, and

	b.  paying her the Non-Prior Service Enlistment Bonus specified for critical skill bonus military occupational specialty 88M out of Army National Guard funds.

2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment to the applicant any amount that may have been recouped from the initial payment of her Non-Prior Service Enlistment Bonus and payment of the second installment of the enlistment bonus (less any withholdings).




      _______ _   _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)                                         AR20130014110



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ABCMR Record of Proceedings (cont)                                         AR20130014110



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