IN THE CASE OF:  	  

		BOARD DATE:  2 December 2014	  

		DOCKET NUMBER:  AR20130019174 


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 entitlement to a $15,000.00 reenlistment bonus.

2.  The applicant states:

	a.  He reenlisted in February 2009 as a member of the Indiana Army National Guard (INARNG).

	b.  The starting date of the reenlistment contract was in November 2009, but he accepted an Active Guard Reserve (AGR) position in May 2009.

	c.  While he was in-processing into the AGR Program, he was informed that he would receive a reenlistment bonus.  After reporting to his first duty station, he informed his first line leader (FLL) that he would be receiving the bonus, but that the beginning of the contract was in November 2009.

	d.  His FLL contacted the incentives branch for the INARNG and was advised that he would be receiving the bonus and that it would not be recouped.

	e.  He and his FLL tried to stop the bonus, but he was paid the bonus anyway.  He held the money for 90 days to ensure that there would not be a recoupment.


3.  The applicant provides:

* memorandum from the INARNG Education Services Officer, dated 20 June 2012, subject:  Request for an Exception to Policy for (Applicant) to retain the Non-Prior Service Critical Unit Identification Code (UIC) Bonus
* memorandum from the applicant's first sergeant (1SG), dated 30 April 2012, subject:  (Applicant's) Bonus Issue
* request for exception to policy (ETP) to retain a bonus

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the INARNG on 25 September 1999 for a period of 8 years.  On 24 September 2005, he extended his enlistment in the INARNG for a period of 6 years.

2.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows he extended his enlistment in the INARNG for a period of 6 years on 28 February 2009.  The DA Form 4836 indicates he was eligible for and that he accepted a retention bonus.  It also shows his expiration of term of service (ETS) at the time of the extension was 27 November 2009.

3.  Annex R to the DA Form 4836 indicates he was to receive a bonus in the amount of $15,000.00 for the 6-year extension.  Annex R further indicates the lump sum payment of the total bonus amount would be received on the date the extension contract took effect (1 day after his ETS).

4.  Annex R to the DA Form 4836 also stipulates that the bonus would be recouped if he accepted a Title 10 or Title 32 AGR tour prior to serving at least 6 months of the Selected Reserve incentive contract term.

5.  The applicant began serving in the AGR Program on 4 May 2009.

6.  A document generated by the National Guard Bureau (NGB) Information Management and Reporting Center shows the applicant's bonus was required to be recouped based on his acceptance of an AGR position prior to the start of his reenlistment contract; therefore, the contract should have been terminated at the time of acceptance.  Accelerated payment did not apply in this case because new reenlistment contracts are not effective until after the Soldier's contractual ETS.


7.  On 30 April 2012, the applicant's 1SG provided a memorandum for record and stated:

	a.  The applicant was hired into the AGR Program in May 2009 and he had a bonus contract on the "traditional side."

	b.  Contact was made with Staff Sergeant (SSG) G____ at the Joint Forces Headquarters [Indiana] bonus branch to see what needed to be done since the applicant was in an AGR status.  SSG G____ informed him that the applicant would not have to pay back his $15,000.00 bonus.

	c.  Every effort was made by the applicant to ensure that the payment was stopped and during the next step once payment was received.  He and the applicant were informed that the payment was authorized and nothing further needed to happen.

8.  On 5 May 2012, the applicant initiated his request for ETP to retain the bonus based on the following:

	a.  On 4 May 2009, he in-processed into the AGR Program.  At that point he was advised by Ms. M____ and SSG M____ that any due enlistment bonuses would be paid immediately.  He was very concerned because he was not even starting his contract for that bonus until November 2009, at which point he was supposed to serve 6 months under that contract before he would be eligible to enter the AGR Program without a bonus recoupment.

	b.  He brought the issue to their attention on 4 May 2009 and they stated it would be paid out with no possibility of recoupment.  He reported on 5 May 2009 for his first day of AGR duty.  His FLL was immediately made aware of his concerns.  He told his FLL that he did not want them to pay the bonus to him if they were just going to recoup it later down the road.  The bonus was paid to him approximately 2 weeks later.  At that point, he was advised by SSG G____ that he was authorized to receive the bonus and it would not be recouped.  He then left the $15,000.00 sitting in his savings account for approximately 60 days just to ensure they did not change their initial determination.  On 23 April 2012, he was informed by the career counselor that he needed to write an ETP memorandum because of possible bonus recoupment.

9.  On 20 June 2012, the INARNG Education Services Office submitted a request for an ETP to NGB to allow the applicant to retain the $15,000.00 bonus.  The INARNG stated the basis for the request was that the applicant received mixed guidance from his chain of command and the incentive manager prior to acceptance of the AGR position.  The Selected Reserve Incentive Program (SRIP) policy for AGR/military technician rules changed a few times during the time frame Soldier contracted, creating confusion for both the units and the incentive manager at the time.  By approving the exception, it would lend credence to their commitment to take care of Soldiers as this was clearly an oversight by the unit, career counselor, and the State Incentive Manager at the time.

10.  On 19 April 2013, the NGB, Deputy G1, denied the request for ETP to retain the bonus based on the fact that the applicant contracted for an incentive while in a military technician/AGR status which violated ARNG SRIP policy.  The State Incentive Manager was directed to terminate the bonus with recoupment.

11.  On 29 April 2013, the applicant was informed of the denial of ETP to retain the bonus and he was advised to apply to the Army Board for Correction of Military Records if he believed an error or injustice still existed.

12.  In the processing of this case, an advisory opinion was obtained from the NGB Personnel Policy Division.  This office recommends approval of the applicant's request and states:

	a.  The applicant reenlisted in the INARNG on 28 February 2009.  He subsequently was selected for an AGR position on 4 May 2009.  The contract for the reenlistment bonus should have been terminated but was paid to him in advance of his contract starting date.  According to the incentive managers at NGB, accelerated payments are not authorized.  More importantly, he should not have received payment because his reenlistment contract did not go into effect until 28 November 2009.

	b.  While in-processing into the AGR Program, he discussed his concern about receiving the bonus with his FLL, MSG T____.  He did not want to receive the bonus because according to Department of Defense Instruction 1205.21, "recoupment of a bonus payment that has already been made under this agreement as calculated under paragraph E5.1.5 shall be waived if termination was for any of the following reasons:  "I am accepting a military technician or AGR position and I have served at least 6 months of the bonus contract following receipt of the initial payment."  He was very proactive in trying to get the bonus payment stopped.  He not only made several inquiries, but he also involved his chain of command.  MSG T____ contacted the State Incentive Manager to verify if the applicant would still receive the bonus now that he was in an AGR status.  It was confirmed to MSG T____ by the State Incentive Manager that the applicant would receive the bonus and it would not be recouped.  The applicant still had concerns and waited 60 days before he touched the money for fear that it would be recouped.

	c.  The applicant was assured at every level that his bonus payment was safe from recoupment.  There is no evidence of fraud on the part of the Soldier.  The Department of Defense modified the policy guidance on repayment of bonuses and educational benefits.  According to Title 10, U.S. Code, section 2774, "A claim of the United States against a person arising out of an erroneous payment of any pay or allowances made before, on, or after 2 October 1972, or arising out of an erroneous payment of travel and transportation allowances, to or on behalf of a member or former member of the Uniformed Services, 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.  The State of Indiana concurs with this recommendation.

13.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be allowed to retain a $15,000.00 bonus was carefully considered.  However, there is insufficient evidence to support this claim.

2.  Notwithstanding the recommendation contained in the NGB Personnel Policy Division advisory opinion, the terms of recoupment of the applicant's reenlistment bonus are clearly stated in Annex R of his DA Form 4836 which provided that he would lose his eligibility for the bonus if he accepted an AGR position before completing 6 months of service on his contract.  As a result, he did not satisfy the terms of his reenlistment/extension and he was no longer eligible for the reenlistment bonus once he accepted the AGR position.

3.  Regardless of the circumstances surrounding the accelerated payment of his reenlistment bonus, the fact remains that he was paid the bonus erroneously.  Therefore, the denial of his request for an ETP to retain the bonus by the NGB, Deputy G1 was correct in accordance with the terms stipulated in Annex R to his DD Form 4836.  

4.  There is no evidence of error or injustice in this case.  Therefore, 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)                                         AR20130019174



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ABCMR Record of Proceedings (cont)                                         AR20130019174



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