IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130015122 


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, cancellation of recoupment of a Selected Reserve Incentive Program (SRIP) Non-Prior Service Enlistment Bonus (NPSEB).  He also requests an upgrade of his discharge from the Army National Guard (ARNG).

2.  He states his discharge from the ARNG should not have happened, and he requests "repayment" of his bonus.

	a.  He was not informed that once he was placed in an inactive status he needed to return to an active status within 1 year or he would be discharged.  He does not think he should have received a general discharge.

	b.  He joined when he was still in high school.  He was taught by his parent to respect his elders.  When he had problems getting another unit to accept him after he moved, he listened to the advice of Sergeant First Class (SFC) A------- and Sergeant (SGT) C-----.  He went inactive on SGT C-----'s recommendation; however, SGT C----- did not inform him he had been placed in an inactive status or that he needed to report back after a year or be discharged.  He moved back to Maryland, and when he went to get his identification card renewed he was surprised to learn he had been given a general discharge from the ARNG.  He would return to an active status and complete his contract if allowed.

	c.  He understands he has not fulfilled his contract and that is why he is being asked to repay the bonus.  It seems to him that the Army also did not fulfill its 


part of the contract.  During all this time his e-mail address, mailing address, and phone number have remained the same, yet no one communicated with him until they wanted money.  

3.  He provides:

* a memorandum, subject:  Notification of Incentive Eligibility Termination, dated 12 February 2013
* a memorandum, subject:  Request for Exception to Policy (ETP) for NPSEB (Applicant), dated 9 February 2013
* a self-authored letter, dated 24 September 2012
* e-mail correspondence
* shipping receipts
* a memorandum, subject:  Notification of Incentive Discrepancy and ETP Process, dated 1 August 2012
* orders
* bank statements

CONSIDERATION OF EVIDENCE:

1.  On 12 September 2013, the Army Review Boards Agency notified the applicant that he had not provided evidence indicating he had appealed his discharge to his State Adjutant General.  The applicant was notified that he may submit a new application to the Army Discharge Review Board if, after receiving a response on his appeal to his State Adjutant General, he still believes an error or injustice exists in his discharge.  Therefore, this portion of the applicant's request for an upgrade of his discharge will not be discussed further in these Proceedings.

2.  On 15 May 2007, the applicant enlisted in the Maryland ARNG (MDARNG) for a period of 6 years.  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he was 17 years of age at the time.  He enlisted with parental consent.

3.  In conjunction with his enlistment, he executed a National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 - NPSEB Addendum).  By signing the form, he verified he was eligible for an NPSEB in the amount of $20,000.00, less taxes, payable in two 50 percent installments, the first payable upon completion of initial active duty for training and the second payable on the 36-month anniversary of his date of enlistment.


	a.  He acknowledged:

* he was enlisting into Company D, 729th Brigade Support Battalion (BSB) to serve at least 6 years in a paid drill status
* he was enlisting for military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic), that was designated as a critical skill MOS
* he understood he would be suspended from bonus eligibility if he entered a period of non-availability (placement in the Inactive National Guard (ING)) for a maximum period of 1 year for personal reasons.

	b.  He further acknowledged he would be terminated from bonus eligibility with recoupment if he exceeded the maximum time in the ING with recoupment calculated from the date of transfer to the ING.

4.  On 30 October 2007, he entered active duty for training.  On 2 May 2008, he was honorably released from active duty after completing training for MOS 63B.

5.  Headquarters, MDARNG, issued:

	a.  Orders 137-179, dated 16 May 2008, that show:

* he was assigned to Company D, 729th BSB, Cheltenham, MD, and attached to the 581st Soldier Readiness Battalion, Reisterstown, MD
* he was awarded primary MOS (PMOS) 63B, effective 16 May 2008

	b.  Orders 204-516, dated 22 July 2008, releasing him from attachment to the 581st Soldier Readiness Battalion effective 22 July 2008;

6.  On 1 May 2009, the 58th Infantry Brigade Combat Team, Towson, MD, issued Orders 121-007.  Effective the date of the orders and under the authority of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 4-4, he was:

* released from assignment as a wheeled vehicle mechanic with Company D, 729th BSB
* transferred to assignment as an intelligence analyst with Headquarters and Headquarters Troop, 1st Battalion, 158th Cavalry Regiment, Annapolis, MD

7.  On 5 August 2009, 1st Squadron, 158th Cavalry Regiment (Reconnaissance), issued Orders 217-002 withdrawing PMOS 63B1O and awarding him PMOS 35F1O (Intelligence Analyst).
8.  Headquarters, MDARNG, also issued:

	a.  Orders 301-096, dated 28 October 2010, transferring him to the ING as a member of 1st Squadron, 158th Cavalry Regiment (Reconnaissance), effective 11 January 2010 with an assignment/loss reason of "individual's request";

	b.  Orders 186-014, dated 5 July 2011, releasing him from the ING and transferring him to a unit effective 11 June 2011 for the purpose of discharge;

	c.  Orders 186-015, dated 5 July 2011, discharging him from the ARNG with a general discharge under the provisions of National Guard Regulation 600-200, paragraph 6-36l, effective 12 June 2011; and

	d.  Orders 206-077, dated 24 July 2012, amending Orders 186-015 to show "SRIP:  YES  Termination:  YES  Recoupment:  YES  Termination Date:  20110612  Reason for Termination:  TERMINATED - OTHER."

9.  He provides several documents in support of his request.

	a.  A memorandum, subject:  Notification of Incentive Discrepancy and ETP Process, dated 1 August 2012, from Headquarters, MDARNG, informed him a discrepancy had been discovered with his bonus.  The memorandum identified the discrepancy amount of $6,666.67 and identified the reason for the discrepancy as "discharge from ARNG prior to completion of contract."  He was informed that he might be eligible for an ETP and he was given instructions for the ETP process.

	b.  In a self-authored letter, dated 24 September 2012, he stated:

		(1)  He began to have problems when the Cheltenham, MD, unit was closed.  He did not receive orders and his mother called to find out where he should be drilling.  His mother was told he was attached to a unit in Annapolis, MD and he began drilling with that unit in the fall of 2009.  He talked to an NCO about transferring to a Florida unit since he was going to move in December 2009.  He came from Florida to drill several times, and during those drills, he tried to get assistance with transferring to Florida and with getting his military
e-mail account fixed as he had not had access to it since boot camp.

		(2)  A week after moving to Florida, he visited the headquarters unit in
St. Augustine.  A recruiting NCO told him no unit in Florida would let him "split train" with them; he would have to transfer to Florida.  He called several units in Florida, and they told him the same thing.  He called SGT C-----, who worked in 


the office of the Florida National Guard Interstate Transfer (IST) Coordinator, and he was informed that his unit in Maryland needed to start the process through Maryland's IST office.  This advice was different than what he had been told by NCOs in his Maryland unit.

		(3)  He began calling SGT P--- in Maryland who did not return his calls.  If he had a number for someone higher, he would have called them.  For the next couple of months he called two to three times per month.  When he felt that nothing was getting accomplished, he stopped calling.

		(4)  He eventually got a call from SGT P---, but the call was not regarding why he had not attended drill for 6 months.  The call regarded his ineligibility for his bonus because he no longer held MOS 63B, which was news to him.  He told SGT P--- he believed he still held MOS 63B and that he had been trying to contact the unit for months.  He explained his situation to SGT P---, and told him he felt he had done everything he could.  SGT P--- told him he would get the problem resolved.  He did not hear from SGT P--- after their conversation in April 2010.

		(5)  On 13 July 2010, he was paid the second half of his bonus.  He contacted SFC A-------, who stated the bonus was his to spend and there would be no recoupment as long as he returned to a drilling status.

		(6)  Toward the end of 2010, he was going to move back to Maryland, so he "contacted the only person that would answer the phone," SGT C----- in the office of the Florida IST Coordinator.  He wanted to return to some kind of drilling status, but he was informed he needed to clear the last unit of all his gear.  His attempts to return his gear failed.  He could not get anyone from Maryland on the phone.  SGT C----- told him getting his drilling status back to normal was more important than returning his gear.  SGT C----- recommended he go into the inactive Reserve and informed him the only drawback was that his time in the inactive Reserve would not count toward retirement.  He agreed with SGT C-----'s advice, and SGT C----- told him he would do that for him and they could then work on getting him back to a drilling status.  That was the last he heard, and he did not receive any orders.

		(7)  In November 2011, his military identification was expiring, so he made an appointment to get it renewed.  At the appointment, he was told he was not eligible for a military identification card.  He was eventually informed he had been discharged from the ARNG on 6 June 2011.  He did not receive notification of the action.  He called SGT C-----, who informed him that he did not attend annual training for the inactive Reserve, which was the reason for his general discharge.  He was eventually sent a copy of his discharge orders, and that was the last contact he had with the military.

		(8)  He is now supposed to pay back a bonus, which he was told it was his to spend, because he did not complete a contract that the ARNG did not seem to care about at the time.  He did not get any straight answers and he felt he was not given a chance to succeed.

	c.  A memorandum from the Deputy G-1, ARNG, NGB, to the State Incentive Manager, MDARNG, subject:  Request for ETP for NPSEB (Applicant), dated
9 February 2013, shows the applicant's request for an ETP to retain the NPSEB was denied and the bonus was to be terminated with recoupment.  The decision authority listed three reasons for denying the ETP:

* the applicant was discharged or separated prior to completion of the service obligation
* he 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 period upon returning to an active status
* he was not serving in the MOS for which he contracted

	d.  The decision authority stated each of the reasons listed above constituted a violation of ARNG SRIP Policy Number 07-04 and noted the applicant was unable to comply with his contractual agreement due to a voluntary request that conflicted with the agreement.

	e.  A memorandum from the MDARNG State Incentive Manager, subject:  Notification of Incentive Eligibility Termination, dated 12 February 2013, informed him $6,666.67 of his NPSEB would be recouped because he was discharged from the ARNG prior to completion of his incentive contract.

	f.  E-mail correspondence partially corroborates the account he provided in his self-authored letter, dated 24 September 2012.

10.  ARNG SRIP Policy Number 07-04, effective 1 January to 15 June 2007, established policy to administer ARNG incentives during the effective period.

	a.  The policy provided for termination of an incentive with recoupment if entitlement to the incentive was terminated for any reason before the fulfillment of the service described in the member's written agreement.  Unless granted relief, the member was required to refund a prorated amount to the Government, if the incentive was terminated for any of the following reasons:


		(1)  Fails to participate satisfactorily in required training during the entire period of service agreed to in accordance with the written agreement unless the failure to participate satisfactorily was due to reasons beyond control of the member (i.e., death, injury, illness, or other impairment).

		(2)  Moves to a non-bonus skill or unit, unless the move is required by the ARNG.

		(3)  Fails to extend the contracted term of service for a period of authorized non-availability.

		(4)  Accepts an Active Guard Reserve position or a Military Technician position where membership in the ARNG is a condition of employment and the member has not served at least 6 months of the incentive contract.

		(5)  Serves 1 year or less of an enlisted incentive contract upon entry into the Simultaneous Membership Program, Reserve Officers' Training Corps (ROTC) Advanced Course or ROTC Control Group.

	b.  The policy provided for a $20,000.00 NPSEB for enlistees who enlisted for a critical skill MOS.

11.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted personnel, to include separation of enlisted personnel.

	a.  Paragraph 6-36 provides reasons for involuntary discharge not addressed elsewhere in the regulation.  It states all involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures.  All Soldiers being involuntarily separated will be afforded a reasonable opportunity to provide a written response for consideration by the separation authority.  

	b.  Paragraph 6-36l provides for the involuntary discharge of members who fail to report for annual ING muster.

DISCUSSION AND CONCLUSIONS:

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


2.  The basic issue in this case is the applicant's failure to serve in an active status in the MDARNG for the contractual period of 6 years.  On 15 May 2007, he signed an NPSEB 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 11 January 2010, and he remained in this status until he was transferred to a unit effective 11 June 2011 for the purpose of discharge, a period of approximately 17 months.  His discharge orders, as amended, show his bonus was terminated with recoupment effective 12 June 2011, the date he was discharged.

3.  The preponderance of evidence shows his NPSEB eligibility was terminated primarily as a result of his decision to move to Florida without having first made arrangements for continued service that would meet the terms of his contract.  When he was unable to make those arrangements, he voluntarily transferred to an inactive status.

4.  The terms of his NPSEB 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 MDARNG did not discharge him until he had been in the ING for well over a year.

5.  The e-mail correspondence he provides confirms his statement that a senior NCO told him the second installment of his bonus was his to keep.  Of note, however, is that the NCO provided the caveat that the applicant needed to return to a drilling status.  The Government cannot be held responsible for his decision to spend a bonus payment when he had been reminded that the conditions of his contract had not yet been met.

6.  The applicant failed to fulfill the terms of his NPSEB contract.  As a result, he is subject to recoupment of a prorated amount of the bonus monies he was paid in accordance with the terms clearly stated in his contract.  There is no evidence of inequity or injustice in the decision to recoup the portion of the NPSEB he did not earn.

7.  In view of the foregoing, there is no 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 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)                                         AR20130015122



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ABCMR Record of Proceedings (cont)                                         AR20130015122



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