BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130017938 


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 relief from recoupment of a portion of a prior service enlistment bonus (PSEB) in the amount of $15,000.
 
2.  The applicant states:

	a.  He signed his reenlistment contract on 13 October 2008 which included a PSEB Addendum.  He officially enlisted in the Montana Army National Guard (MTARNG) on 5 December 2008.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) [for the period ending 20 April 1989] serves as proof of his education requirements for enlistment.

	b.  As to his 2008 reenlistment contract and PSEB Addendum, there is not a single clause that precluded him from promotion or movement to another military occupational specialty (MOS).  It stated only that he was not enlisting in a Table of Distribution and Allowances (TDA) unit or enlisting into other forms of service.  He completed the formal training and became qualified in the contracted MOS [11B (Infantryman)] within 24 months of enlistment.

	c.  His PSEB Addendum shows his 6-year enlistment in a noncritical Modified Table of Organization and Equipment (MTOE) unit.  Section IV speaks specifically to reasons for suspension from bonus eligibility, none of which applied to him at any time during his service.  Sections V and VI speak to termination with and without recoupment and no clauses applied to him.  He continues to fulfill his contract in every way and often exceeds his duties.
	d.  There is nothing in his contract that references the ARNG Selected Reserve Incentive Program (SRIP) 07-06 or provides for any consequences for violations of the SRIP.  The ARNG SRIP 07-06 is a policy and not an addendum to his contract.  In September 2009, he received the first half of his bonus. 

	e.   In September 2010, he deployed to Iraqi for Operation Enduring Freedom (OEF) with A Company, 1st Battalion, 163rd Cavalry Regiment.  On 14 July 2011, he was offered and accepted [transfer to a different unit] and a promotion [to the rank/grade of sergeant (SGT)/E-5].  Although there were specific warnings as to the consequences of declining the promotion, there was not a single warning as to the potential violation of any policy or the potential recoupment of his bonus.  During his deployment, he was never counseled regarding any bonus recoupment.  On 11 September 2011 he returned with his unit from his deployment.

	f.  The official date of his transfer was 22 October 2011.  In December 2011, he received the second half of his bonus.  It is incomprehensible to have received the second half of his bonus after his promotion to the very training site for which he is now being threatened with recoupment.  He is aware that the second half of his bonus was carefully reviewed prior to disbursement due to the fraudulent contracts the California ARNG had entered into at the time of his original contract date. 

	g.  In September 2012, he entered and won the Montana Noncommissioned Officer (NCO) of the Year Competition.  It should be noted that he is now 50 years of age and competing against others that are 20 years his junior.  In January 2013, he attended and successfully completed the Warrior Leadership Course (WLC).  His career progression remains MOS 11B and he is now second on the 11B promotion list [to staff sergeant (SSG)].

3.  The applicant provides his:

* DD Form 214, for the period ending 20 April 1989
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* Annex X to DD Form 4 (PSEB Addendum - ARNG of the United States)
* DD Form 1966 (Record of Military Processing - Armed Forces of the United States)
* DA Form 1059 (Service School Academic Evaluation Report)
* Orders
* three memoranda
* DA Form 2823 (Sworn Statement)
* a page titled Official Promotion List
* a high school diploma
* a photograph, dated 8 September 2012, of what appears to the applicant and another Soldier identifying the applicant as the MTARNG NCO of the Year
* a page titled Oregon Nation Guard Public Affairs Office 

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service in the U.S. Navy, the applicant enlisted in the MTARNG on 5 December 2008 for a period of 6 years.

2.  The applicant provides and his records contain a PSEB Addendum, dated 5 December 2008, wherein it stated, in part:

	a.  He was prior service, he was not qualified in the MOS he was enlisting for, he was enlisting into an MTOE unit in critical skill MOS 11B, and he agreed to attend formal training and become qualified in his contracted MOS within 24 months of the date of his enlistment.  

	b.  He would receive a 6-year PSEB in the amount of $15,000 in a noncritical MTOE unit [the 163rd Cavalry Regiment, Billings, MT].  The bonus would be paid in two 50-percent installments.  The initial installment would be processed for payment when he became MOS qualified and the final 50 percent would be processed on the third-year anniversary of his enlistment.  

	c.  He understood he would be terminated from bonus eligibility with recoupment if he became an unsatisfactory participant, failed to extend his enlistment for time served in the Inactive National Guard (ING), exceeded the maximum time in the ING, accepted a military technician position, accepted a Title 10 or Title 32 Active Guard Reserve (AGR) tour, became a participant in the Reserve Officers Training Course (ROTC), did not become qualified in the MOS required, accepted a commission as an officer, or if he separated from the ARNG for any reason unless due to death/impairment not the result of his own misconduct.

3.  The applicant was assigned to the 1st Battalion, 163rd Cavalry Regiment, Billings, MT.  

4.  He attended and successfully completed the Infantryman Course from 8 to 22 August 2009 and he was awarded MOS 11B.  At that time, he received the first-half of his PSEB.

5.  He was ordered to active duty in support of Operation Iraqi Freedom as a member of his ARNG unit and he entered active duty on 17 May 2010.  He served in Iraq from 13 November 2010 to 2 September 2011.

6.  The applicant provides a memorandum, dated 13 July 2011, issued by the MTARNG Training Center, Fort Harrison, MT, wherein it notified him that he was selected from the 11B Enlisted Promotion Roster for a position in the MTARNG Training Center, as an Operations NCO (E-5) (emphasis added).  It stated, in part:

	a.  If he accepted the position of 00F (ARNG MOS Immaterial), SGT/E-5, he would need to meet the service remaining obligation of 1 year and he would be promoted on the date of transfer as established by his chain of command.

	b.  If he declined the position he would not be removed from the promotion list if he indicated an unwillingness to commute outside 100 miles of his home of record, for hardship reasons (with supporting documentation), or due to technician incompatibility or grade inversion.

7.  This memorandum shows he accepted the offer on 14 July 2011.

8.  He was honorably released from active duty on 21 October 2011 to the control of the MTARNG.

9.  Orders 294-083, dated 21 October 2011, issued by Office of the Adjutant General, Joint Forces Headquarters - MT, transferred the applicant from the 163rd Cavalry Regiment to the MTARNG Training Center as the Operations NCO in MOS 00F effective 22 October 2011.  Theses orders state "SRIP:  Yes, Termination:  No" (emphasis added).

10.  In December 2011, he received the second and final half of his PSEB.

11.  On 9 April 2013, the G-1, Joint Forces Headquarters - MT, submitted an exception to policy request (ETP) to the National Guard Bureau (NBG), for the applicant to retain the $15,000 PSEB.  The G-1 official stated the applicant contracted for MOS 11B in a non-critical MTOE unit and transferred to MOS 00F in a non-deployable TDA unit for career progression.  He accepted the PSEB in good faith and had otherwise fulfilled his obligation as of the date of the ETP request.  The applicant had received the full $15,000.  It appears the request was subsequently denied.


12.  In a memorandum, dated 27 August 2013, the G-1, Joint Forces Headquarters - MT, notified the applicant of his incentive eligibility termination.  The G-1 official stated his PSEB contract was terminated as of 22 October 2011 when he voluntarily moved to a different MOS than the MOS he contracted for and out of an MTOE unit into a TDA unit.  The recoupment amount was $7,919.76.

13.  The applicant provides a memorandum, dated 12 September 2013, wherein the Deputy Commander, 83rd Civil Support Team, ARNG recommended his PSEB recoupment be terminated.  He stated the applicant was one of the best Soldiers he had served with and he was never counseled that he would have to pay back his bonus.  The applicant's primary and career progression remained 11B and for that reason, he should be granted an ETP.

14.  Orders 302-011, dated 29 October 2013, issued by Office of the Adjutant General, Joint Forces Headquarters - MT, transferred the applicant from the MTARNG Training Center to the 1st Battalion,163rd Cavalry Regiment  in MOS 11B effective 4 November 2013.

15.  He was promoted to the rank/grade of SSG on 4 November 2013.

16.  In the processing of this case, on 11 December 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended approval of the applicant's request and to grant relief from recoupment of the PSEB.  The advisory official opined, in part, that:

	a.  The applicant received a PSEB when he enlisted in the MTARNG and he became MOS qualified within the required timeframe.  He was offered a promotion in a non-deployable unit and accepted because he and the State did not think it would affect his bonus.  He contacted as an 11B and the position was 00F prompting termination of his PSEB with recoupment.

	b.  The ARNG SRIP Guidance for fiscal year (FY) 2007, 2008, and 2009, states voluntarily transferring to a non-deploying unit results in termination with recoupment.  Department of Defense Instruction (DODI) 1205-21 (Reserve Component (RC) Incentive Program Procedures - 20 September 1999) states a Soldier's bonus is subject to recoupment if the Soldier voluntarily moves to a non-bonus eligible critical skill or unit with the express direction of the RC.  These stipulations were not indicated in the applicant's PSEB Addendum.

	c.  The applicant met all the requirements in his PSEB Addendum.  The addendum stated the Soldier must not enlist into a TDA unit and he did not.  He enlisted into a bonus eligible [MTOE unit] position, deployed, and transferred to a TDA unit for career progression.  Transferring to a non-deployable unit is not addressed as a reason to affect the bonus.

	d.  The orders transferring the applicant from the bonus eligible position to the non-bonus eligible position stated SRIP- Yes and Termination - No.  This indicated the MTARNG allowed the applicant to believe his PSEB would not be adversely affected.  This error is not the fault of the applicant.

	e.  The MTARNG concurred with the recommendation.

17.  On 13 December 2013, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

18.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It states, in pertinent part, applications for remission or cancellation of indebtedness must be based on injustice, hardship, or both.  The Army may remit or cancel a Soldier's debt arising from payments made in error, payments made in excess of an allowance on behalf of a Soldier, or debts incurred while serving on active duty.  To determine injustice the application must contain evidence that the applicant did not know and could not have known of the error and/or the applicant inquired of a proper authority and was told the payment was correct.  To determine injustice or hardship HRC must consider the Soldier's awareness of policy and procedures, MOS, rank, years of service, and prior experience.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant initially enlisted in the MTARNG on 5 December 2008 for a 6-year PSEB of $15,000 in critical MOS 11B and in a noncritical MTOE unit.  He fulfilled his contract with outstanding performance of duty since 5 December 2008 and deployed to Iraq with his unit in 2010 for almost 1 year. 

2.  On 22 October 2011, he voluntarily transferred to a TDA unit in MOS 00F for career progression.  Almost 2 years after his transfer, he was notified his PSEB contract was terminated with recoupment as of 22 October 2011 based on his voluntary transfer.  The recoupment amount was $7,919.76.  On 4 November 2013, he was promoted to SSG, transferred to the 163rd Cavalry Regiment and continues to serve honorably in the MTARNG in MOS 11B.

3.  Notwithstanding the applicant's and NGB advisory opinion that his PSEB Addendum did not address termination with recoupment for voluntarily transferring to a TDA unit, it cannot be expected that every condition is specifically spelled out.  The evidence of record shows the applicant did contract for 6 years in MOS 11B in an MTOE unit and from 22 October 2011 to 3 November 2013, he failed to do so, even if at the time he did not realize he was violating his contract.

4.  However, the memorandum notifying him he was selected for the Operations NCO position stated he was selected from the 11B promotion list and, although it was coded 00F, the position was MOS immaterial.  He was a SPC at the time and it is reasonable to presume he believed he was still serving as an 11B and did not know his PSEB would be terminated if he accepted the position.  

5.  It is evident he was not told his PSEB would be terminated as even the MTARNG apparently did not know his PSEB would be affected.  This is evident as the orders transferring him to the position indicated he was an SRIP recipient and it would not be terminated.  In addition, he was paid the final payment of his PSEB in December 2011, 2 months after he transferred to the 00F position.  He should not be penalized for errors committed on the part of the MTARNG 

6.  Therefore, it would serve the interest of equity and justice to honor his contractual commitment, as recommended in the advisory opinion.  In view of the foregoing, the applicant's request should be granted.

BOARD VOTE:

___X__  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 showing he is eligible to be paid the PSEB as specified in his enlistment contract, cancelling all recoupment action, and

repaying him any portion of the $15,000 PSEB that may have already been recouped.



      _______ _   _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)                                         AR20130017938





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ABCMR Record of Proceedings (cont)                                         AR20130017938



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