IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20130015501 


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 his records to show he was approved to retain the Enlisted Affiliation Bonus (EAB) and Student Loan Repayment Program (SLRP) money previously paid to him.

2.  The applicant states, in effect:

	a. On 7 November 2007, he enlisted in the California Army National Guard (CAARNG) after completing 10 years of active duty service in the U.S. Marine Corps (USMC).  His military occupational specialty (MOS) in the USMC was 3112 (Traffic Management Specialist) which is equivalent to MOS 88N (Transportation Management Coordinator) in the Army.  He was unable to find a position in that MOS in Southern California and had to choose a new specialty to serve in the ARNG.  He lost 30 percent of his hearing while serving on active duty and, as a result, he qualified for enlistment in MOS 92G (Cook) which came with a $20,000.00 SLRP incentive and a $20,000.00 EAB.  He chose that MOS and completed the affiliation addenda to complete the enlistment packet.  He later discovered the reason he is currently the subject of recoupment of these incentives is based on the packet of documents he signed indicating he was qualified per his recruiter and he believes this error was due to no fault of his own.

	b.  The misguidance from his recruiter contributed to this error in which he was told he was qualified for the incentives under National Guard Bureau (NGB) Form 600-7-4-R-E (Annex AB to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) – Affiliation Bonus Addendum – ARNG of the United States), section II (Eligibility), paragraph 1, which states, "I am MOS qualified, or qualified in an MOS within substitution rules of AR [Army Regulation] 611-201 (Enlisted Career Management Fields and Military Occupational Specialties), for the duty position to which I am being assigned."  The recruiter told him he qualified under the substitution rules of Department of the Army Pamphlet 611-21 (Military Occupational Classification and Structure) since he was a prior-service member and he would be sent to the MOS 92G school upon checking into his assigned unit.  Apparently, this was an error as he is now subject to recoupment for incentives received.  He relied on the information provided to him by a representative of the ARNG which he later found may have resulted from personal monetary gains on his part.

3.  The applicant provides:

* DA Form 2823 (Sworn Statement)
* Incentives Task Force Bonus Audit Form
* Incentives Task Force Loan Repayment Audit Form
* Loan documents
* NGB Form 23B (ARNG Retirement Points History Statement)
* MOS orders
* DD Form 4
* Annex B to DD Form 4 – EAB Addendum – ARNG of the United States
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* Annex L to DD Form 4 – SLRP Addendum – ARNG of the United States
* CAARNG memorandum, dated 23 March 2011, subject:  Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) Investigation Findings and Recommendations (page 1)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the USMC from 10 September 1996 to 7 July 2000, the applicant enlisted in the Virginia Army National Guard (VAARNG) on 13 July 2000 and he held MOS 88M (Motor Transport Operator).  He was discharged from the VAARNG on 17 October 2001 as an unsatisfactory participant.

2.  He enlisted in the USMC on 6 June 2001 and he held MOS 3112 (Traffic Management Specialist).  He was honorably discharged from the USMC on 6 October 2007.

3.  He enlisted in the CAARNG on 7 November 2007 in the rank/grade of staff sergeant/E-6 for a period of 6 years.  He enlisted for assignment to the 330th Military Police Company, unit identification code (UIC) WX9UAA, in MOS 92G.  His DD Form 4 states in item 8Bc (Agreements):

The agreements in this section and attached annexes are all the promises made to me by the Government.  ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED.

	a.  In connection with this enlistment he completed Annex L to DD Form 4 in which he indicated he was a prior-service applicant and he was enlisting for 6 years in the ARNG.  He further indicated he held the primary MOS for which he was enlisting (MOS 92G) which was a critical MOS authorized for the SLRP.  He indicated he had one existing loan in the amount of $20,820.00, but the total amount of repayment would not exceed $20,000.00.  He acknowledged he understood his incentive would be terminated without recoupment if he voluntarily transferred out of the contracted MOS; or if he failed to extend his enlistment for time served in the Inactive National Guard (ING) within 30 days of return to his unit; or if he failed to become MOS qualified within 24 months after unit inactivation, reorganization, or relocation.

	b.  In connection with this enlistment he also completed Annex AB to DD Form 4 in which he indicated he was eligible for the EAB under the Selected Reserve Incentive Program (SRIP) and he was enlisting for 6 years in the ARNG. 
He further indicated he held the primary MOS for which he was enlisting or qualified in an MOS within the substitution rules of Army Regulation 611-201.  He indicated he was contracting for MOS 88N.  He acknowledged he understood his incentive would be terminated if he entered a period of non-availability (ING); or transferred to an MOS for which he was not qualified; or if he did not become qualified in and awarded the MOS for his position within 24 months of transfer due to unit inactivation, reorganization, or relocation.

4.  CAARNG Orders 213-1129, dated 31 July 2008, awarded him primary MOS 31B (Military Police (MP)) effective 31 July 2008.  He was assigned to the 330th MP Company, Ontario, CA.

5.  CAARNG Orders 259-1037, dated 16 September 2009, released him from assignment to the 670th MP Company (Rear), National City, CA, and transferred him to the ING effective 16 September 2009.

6.  CAARNG Orders 28-1046, dated 28 January 2010, released him from the ING and transferred him to the 670th MP Company (Rear), National City, CA, effective 28 January 2010.

7.  CAARNG Orders 192-1013, dated 11 July 2013, honorably discharged him from the 670th MP Company and the ARNG effective 30 July 2013.

8.  It appears that an Army Regulation 15-6 investigation was conducted in March 2011 into allegations by the applicant of wrongdoings by his unit, the 670th MP Company.  The complete investigation is not available for review with this case.  However, the single page provided by the applicant states, in part, "[Applicant] was promised by the full time staff and his 1SG [first sergeant] that a switch of MOS would not be detrimental to his bonuses.  It is my finding that [the] full time staff, which consisted of an admin NCO [administrative noncommissioned officer] and Readiness NCO who were both within their first year at their respective positions did not have the proper knowledge nor conduct the proper research to ensure their promises could be kept."

9.  In a memorandum from Headquarters, CAARNG, dated 4 November 2013, the Soldiers Incentives Assistance Center (SIAC) Commander stated:

	a.  The SIAC audited the applicant's records and discovered that he was not eligible to contract for or receive payment on the EAB and SLRP incentives he enlisted for on 7 November 2007.  There was no evidence of fraud on the part of the applicant.  He is now requesting any corrective action necessary to support his receipt of these incentives and relief from recoupment due to the 330th MP Company's mishandling of his enlistment.  It should be noted that on 27 March 2013, the SIAC sent the $15,610.00 in incentives the Soldier received to the U.S. Property and Fiscal Office for initiation of recoupment action; all recoupment action has since been suspended pending a decision by the ABCMR.

	b.  The applicant enlisted in the CAARNG with prior service on 7 November 2007 for 6 years in the pay grade of E-6 in critical skill MOS 92G (Food Service Specialist) and assignment to the 330th MP Company (UIC WX9UAA), concurrently signing a 6-year $20,000.00 EAB.  A bonus control number (BCN) was requested for this bonus on 8 November 2007 and the bonus was annotated on his DD Form 4 and DD Form 1966.  He was paid $10,000.00 of this incentive on 17 December 2007.  However, the applicant was not eligible at the time of his enlistment to contract for an EAB because he was not duty MOS qualified (DMOSQ) per Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Program Procedures), section E7.1.1.5, and he never did become DMOSQ in 92G.  He was otherwise eligible to contract for the EAB per SRIP Policy 07-06.  He was never authorized for payment of the EAB based on his MOS status (per DODI 1205.21, section E7.1.1.5).  Moreover, he was in the ING from 16 August 2009 to 28 January 2010 and he never extended for that period of inactive service, making him further ineligible for payment of this incentive (per DODI 1205.21, section 6.7).
	c.  At the time of his enlistment, he also contracted for a $20,000.00 SLRP incentive.  The SLRP was annotated on both his DD Form 4 and DD Form 1966. 
He ultimately received $5,610.00 of this incentive, disbursed on 16 December 2008.  While he was never eligible to contract for or receive payment of this incentive due to being non-DMOSQ in critical skill 92G (per DODI 1205.21, section ES.1.1.3), his eligibility for the SLRP was further compromised due to the absence of valid loan documents in violation of National Guard Regulation 600-7 (SRIP), paragraph 5-7(a), and the applicant's failure to submit a DD Form 2475 (DOD Educational Loan Repayment Program Annual Application) annually for establishment of continued eligibility and payment of this incentive per Army Regulation 135-7 (ARNG and Army Reserve – Incentive Program), paragraph 
5-1.4.1(b)(2).

	d.  Since he was never eligible to contract for the EAB or SLRP due to his MOS status at the time of his enlistment, the only favorable action regarding the $15,610.00 in incentives received is relief from recoupment with the caveat that the applicant must provide National Student Loan Data System documentation showing he had loans eligible for payment.

10.  In an advisory opinion from NGB, dated 18 November 2013, the Chief, Personnel Policy Division, recommended approval of the applicant's request and stated:

	a.  The applicant enlisted in the CAARNG for 6 years in MOS 92G on 7 November 2007.  He was not MOSQ at the time of enlistment and never became MOSQ for the MOS for which he was awarded the incentives.  Although contracting for MOS 92G, he attended training for and was awarded MOS 31B.  He requests relief from recoupment because the recruiter, incentives manager, and chain of command provided incorrect guidance regarding his eligibility for the incentives.  The recommendation to grant relief from recoupment for both incentives is as shown below.

	b.  The recruiter and Military Entrance Processing Station erroneously allowed the applicant to contract for the incentives when he was not eligible.  According to his sworn statement, he contacted the State Incentives Manager who requested his student loan documentation and informed him he was eligible and processed the payment upon receipt.  Also in his sworn statement, he stated his unit requested his attendance training for MOS 31B because no MOS 92G positions were available and led him to believe his incentives would be unaffected because MOS 31B was also a critical MOS.  Since he was available to attend MOS 31B training, he was presumably available to attend MOS 92G training instead, had his unit tried to send him.

	c.  The government incorrectly paid the benefits to the applicant.  When the erroneous payment is the fault of the government, the recoupment may be waived in accordance with Title 10, U.S. Code, section 2774(a), which states, "A claim of the United States against a person arising out of an erroneous payment of any pay or allowances…the collection of which would be against equity and good conscience and not in the best interest of the United States, may be waived in whole or in part..."

	d.  As for the EAB, NGB recommends terminating the incentive without recoupment.  The applicant was paid the first installment of the bonus in the amount of $10,000.00, but the second installment of $10,000.00 was not paid.  National Guard Regulation 600-7, paragraph 4-3(b)(2), states the Soldier must be "MOS qualified in the duty position to which assigned or MOS qualified in a substitutable MOS" to be eligible.  The applicant served in the USMC and held MOS 3112.  Based on DODI 1312.1-1 (Occupational Conversion Index – 31 March 2001), chapter 2, he was qualified for MOS 88N based on his USMC service.  He was in the ING from 16 September 2009 through 27 January 2010.  National Guard Regulation  600-7, paragraph 4-9b, states a "Soldier's bonus is terminated with recoupment if the Soldier enters a period of non-availability (ING)."

	e.  As for the SLRP, NGB recommends terminating the incentive without recoupment.  The applicant received SLRP benefits in the amount of $5,610.00.  The SLRP contract addendum shows loans in the amount of $20,820.00; terminating this incentive will render him ineligible for future payments based on this contract.  He was not eligible to receive SLRP benefits at the time he contracted because he was not MOS qualified.  Army Regulation 135-7, paragraph 5-1.3c(1), states, "A Soldier with PS [prior service] or who is in-service must be qualified and have been awarded the MOS in which contracting."  The applicant's time in the ING from 16 September 2009 through 27 January 2010 should have terminated his SLRP benefits in accordance with National Guard Regulation 600-7, paragraph 5-5c, which states the SLRP is terminated if the Soldier "fails to extend for the period served in the ING within 30 days after return to unit status effective on the date of transfer to the ING."  The applicant did not extend to account for the time spent in the ING.

	f.  The CAARNG concurs with this recommendation.

11.  The applicant was provided with this advisory opinion on 19 November 2013, but he never responded or provided a rebuttal within the allotted time.



DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the CAARNG on 7 November 2007 for 6 years in critical skill MOS 92G and assignment to the 330th MP Company (UIC WX9UAA).  He signed a 6-year $20,000.00 EAB.  A BCN was requested and the bonus was annotated in his enlistment documents.  He was paid $10,000.00 of this incentive on 17 December 2007.  However, he was not eligible to contract for an EAB at the time of enlistment because he was not DMOSQ and he never did become DMOSQ in 92G.  Moreover, he was in the ING from 16 August 2009 to 28 January 2010 and never extended for that period of inactive service, making him further ineligible for payment of this incentive.

2.  He was paid the first installment of the bonus in the amount of $10,000.00, but the second installment of $10,000.00 was not paid.  Since he was in the ING from 16 September 2009 through 27 January 2010, his bonus should be terminated with recoupment.  Therefore, he is not entitled to the requested relief regarding his enlistment bonus.

3.  He also contracted for a $20,000.00 SLRP incentive which was annotated on his DD Form 4 and DD Form 1966.  He ultimately received $5,610.00 of this incentive, disbursed on 16 December 2008.  However, not only was he never eligible to contract for or receive payment of this incentive due to being non-DMOSQ in critical skill 92G, his eligibility for the SLRP was further compromised due to the absence of valid loan documents in violation of National Guard Regulation 600-7 and failure to annually submit a DD Form 2475 for establishment of continued eligibility and payment of this incentive.

4.  He was not eligible to receive the SLRP benefits at the time he contracted because he was not MOSQ.  The SLRP contract addendum shows loans in the amount of $20,820.00.  Terminating this incentive will render the Soldier ineligible for future payments based on this contract.  His time in the ING from 16 September 2009 to 27 January 2010 should have terminated his SLRP benefits.  He did not extend to account for the time spent in the ING.  Since he was in violation of his contractual agreement, he is also not entitled to the requested relief regarding his SLRP incentive.

5.  Furthermore, his DD Form 4 specifically stated the agreements in this section and attached annexes are all the promises made to him by the Government and that anything else anyone has promised him is not valid and will not be honored.




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)                                         AR20130015501



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ABCMR Record of Proceedings (cont)                                         AR20130015501



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