IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130018437 


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 he be shown to be entitled to retain his full Non-Prior Service Enlistment Bonus of $20,000.00.

2.  The applicant states he is being asked to repay part of his enlistment bonus due to an overage of time in the Army National Guard (ARNG) caused by medical professionals not inputting his information in a timely manner.  He was medically cleared to return to duty on 21 January 2013.  This information was not entered by medical professionals for two to three weeks after this, thus creating a return date past the one-year mark. His unit and he have all the documentation to show the proper steps were taken to get him back to duty in time.  In no way is this the fault of his unit or himself.

3.  The applicant provides copies of an "ETP" Checklist, two sworn statements, his enlistment contract, two Annual Muster memoranda, a U.S. Postal Service Return Receipt, a notice of a discrepancy in his bonus contract, and a Request for Exception to Policy.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the New York ARNG (NYARNG) on 26 June 2007.

2.  His enlistment contract provides the following:

   a.  a service obligation of 6 years service in a troop program unit (TPU) with 2 additional years as a member of the Individual Ready Reserve (IRR);
   b.  training in military occupational specialty (MOS) 74D, Chemical Operations Specialist;
   
   c.  participation in the Montgomery GI Bill with the Montgomery GI Bill Kicker;
   
   d.  entitlement to a $15,000 critical skill enlistment bonus; 
   
   e.  entitlement to a $5,000 off-peak bonus; 

	f.  entitlement to a total bonus of $20,000 for the enlistment bonus with receipt of 50% after initial active duty training with award of his MOS;
   
   g.  entitlement to the second and final payment of 50% on the 36th month anniversary of his date of enlistment; and 

	h.  an acknowledgement of the termination with and without recoupment criteria for failure to meet the provisions of the contract (Sections IV, V and VI).

3.  The applicant served on initial active duty training (IADT) from 21 January 2008 through 30 June 2008 with award of MOS 74D and was released to his ARNG unit upon completion of training.

4.  On 22 June 2012, the applicant was notified that there was a discrepancy in his bonus contract in that he had been in the Inactive National Guard (ING) for more than 12 months but that he might be eligible for an exception to policy.

5.  Although the specific documentation related to the applicant's ARNG service is not available, an advisory opinion (noted below at paragraph 6) provided the following:

	a.  The applicant entered the ING in accordance with NYARNG Order Number 048-1004, on 1 February 2011;

   b.  He returned to an active ARNG status, by NYARNG Order Number 062-1024, on 15 February 2012;

	c.  He again entered the ING, by NYARNG Order Number 035-1136, on 7 March 2013; and 

	d.  On 25 June 2013, upon completion of 6 years of ARNG service, he was transferred to the IRR, by NYARNG Order Number 177-1002.

6.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was released from the ARNG and transferred to the IRR on 25 June 2013 with 6 years of creditable ARNG service.

7.  An advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  It recommended partial relief by granting him additional creditable service and a recoupment adjustment to be calculated for ING time as only 1 year, 3 months, and 18 days to be subtracted from his 6-year obligation.  It was noted that:

   a.  through no fault of the applicant, he did not return to his unit from the ING until 14 days after the required 1–year period; 
   
   b.  his second period in the ING was 3 months and 18 days, giving him a total of 1 year, 3 months, and 18 days in the ING, excluding the 14 days overdue;

	c.  Department of Defense Instructions (DODI) states that portion of his service in the ING was not creditable to receipt of his bonus and has to be recouped; and

	d.  The State concurred with the recommendation.

8.  A copy of the advisory opinion was forwarded to the applicant.  The available record does not indicate he offered any additional comment. 

9.  DODI 1205.21 provides the following at:

   a.   Paragraph E3.1.4 – If a service member fails to fulfill the service obligation incurred for any of the enumerated reasons listed below, recoupment or entitlement to a portion of the bonus amount will be calculated in accordance with paragraph E3.1.5;
   
   b.  Paragraph E3.1.4.1 – failure to participate satisfactorily in training with the Selected Reserve including failure to maintain medical and dental readiness during the entire period of enlistment, unless the failure to participate satisfactorily was due to reasons beyond the service member's control (i.e., death, injury, illness, or other impairment);

   c.  Paragraph E3.1.4.5 – failure to extend the contracted term of service for a period of authorized nonavailability;
   
   
   d.  Paragraph E3.1.5 – the amount to be recouped or reimbursed shall be computed as follows;
   
   e.  Paragraph E3.1.5.1 – the number of months served satisfactorily during the term for which a bonus has been paid shall be multiplied by the monthly rate authorized by the particular bonus (calculated by dividing the total bonus amount by the number of months of service the member has agreed to serve);
   
   f.  paragraph E3.1.5.2 – that amount shall be subtracted from the total amount of bonus paid to the service member to date (initial and any subsequent payments); and 
   
   g.  paragraph E3.1.7 – If  a service member incurs a period of authorized nonavailability, they will be suspended from this incentive and not receive payments during the period of suspension.  To regain eligibility for further payments, service members must extend their commitment to serve the full qualifying period in the Selected Reserve.  Entitlement to subsequent payments shall resume on the adjusted anniversary date of satisfactory, creditable Selected Reserve service (i.e., the date shall be adjusted for the period of authorized nonavailability).  Failure to meet reinstatement criteria in a capacity for which previously contracted shall result in termination of the incentive and recoupment, as appropriate. 
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contracted to receive a $20,000 enlistment bonus for serving in an active ARNG position for 6 years and in the IRR for 2 additional years.

2.  Through no fault of the applicant he was unable to return to an active status in the ARNG for 14 days.  It is appropriate to show he did return within the required period and credit him with this time for the purpose of retaining his bonus entitlement.

3.  The applicant's period in the ING of 1 year, 3 months, and 18 days does not qualify as time served for the purpose of retention of his full enlistment bonus.  

4.  It is appropriate to have the Defense Finance and Accounting Service (DFAS) recalculate his enlistment entitlement, and any recoupment actions already taken, based on the revised period of non-entitlement of 1 year, 3 months, and 18 days (15.5 months).

5.  Based on the above revised period of non-entitlement, the applicant's $20,000 enlistment bonus should be reduced to 56.5 months with a proportional recoupment of his bonus in excess of that of that period.

6 years =            72 months
minus ING time  15.5 months 
creditable time – 56.5 months

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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 partial relief.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:

   a.  showing the applicant returned to an active status in the ARNG on 
31 January 2012; and
   
   b.  showing he served 56.5 months of his 72-month active ARNG service obligation and only that portion of his enlistment bonus in excess of that period is subject to recoupment.  

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 









denial of so much of the application that pertains to granting the applicant any additional credit toward retention of his enlistment bonus in excess of 56.5 months.  



      _______ _   _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)                                         AR20130018437



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ABCMR Record of Proceedings (cont)                                         AR20130018437



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