IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130019702 


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, correction of his records to show he executed his enlistment and Bonus Addendum in the Puerto Rico Army National Guard (PRARNG) on the same date and payment of the second half of his    Non-Prior Service Enlistment Bonus (NPSEB). 

2.  The applicant states he enlisted in the Flury Program.  As a Flury, he signed in the PRARNG on 7 March 2009.  But after 2 months on Fort Allen in the Language Center, he took the Armed Services Vocational Aptitude Battery (ASVAB) test again to raise his score and re-sign again.  After that, he selected his military occupational specialty (MOS).  He chose 88M (Motor Transport Operator) because it had a bonus of $20,000.  After finishing his training, he received his first half of his bonus.  It wasn't $10,000 as he expected (half of the $20,000).  It was only $5,000 (half of $10,000).  Then in March 2012, when he was supposed to receive his second part of the bonus, he discovered that something was wrong again.  He was told the bonus was cancelled because he had two different dates on his bonus contract.  He believes this is unjust.  He took care of his part of the contract by attending drills and getting all the training the ARNG for the past 4 years.  The ARNG should do their part by paying him the promised bonus. 

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document)
* Annex E to DD Form 4 (NPSEB Addendum - ARNG)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the PRARNG for a period of 8 years on 7 March 2009.  He enlisted for language training at the PRARNG Language Center, Unit Identification Code (UIC) W84NAA.  His DD Form 4 did not list any incentives.

2.  His DD Form 1966 (Record of Military Processing) stated: "The following addendums have been attached and are part of my enlistment agreement; List of Addendums:  Montgomery GI Bill."

3.  On 24 August 2009, he completed Annex E (NPSEB Addendum – ARNG) to DD Form 4.  The Bonus Addendum was signed by himself, a witness, and an enlisting official.  It was also assigned a Bonus Control Number E0910XXXXPR." The applicant indicated/acknowledged he understood:

* upon his enlistment in the ARNG, he would be eligible for an enlistment bonus as indicated in the Selected Reserve Incentive Program (SRIP)
* he was enlisting in a critical skill MOS of 88M under the 6x2 or 8x0 enlistment option and he would receive a non-prior service critical skill bonus of $20,000.00 for this enlistment option
* he would receive his first payment of 50 percent when he completed training and was awarded the critical MOS
* he would receive the second installment on the 36-month anniversary of his enlistment
* his bonus would be terminated with recoupment if he voluntarily transferred to a non-critical MOS or transferred from the unit for which the bonus was awarded (recoupment would be calculated from the date of transfer)

4.  He entered active duty for training (ADT) on 19 October 2009.  He completed training and was awarded MOS 88M.  He was honorably released from ADT on 5 March 2010.

5.  An advisory opinion was received on 30 April 2014 from the National Guard Bureau (NGB) in the processing of this case.  The NGB advisory official recommended partial approval and stated: 

	a.  The applicant states that he enlisted into the PRARNG on 7 March 2009. He also states that he "chose" the Critical UIC (CUIC) of 88M because at the time it offered a $20,000 enlistment bonus. 

	b.  On 21 April 2010, the Soldier received a $5,000 bonus payment.  He inquires as to why he only received $5,000 instead of $10,000.  Based on the evidence provided, he did not contract for a $20,000 NPSEB in order to have received more than the first half of a $10,000 CUIC.  The first half of the bonus was due when he became Duty MOS Qualified (DMOSQ).  

	c.  An email from NGB Incentives Branch, dated 29 January 2014, states in part... "Research revealed that [Applicant] enlisted into the PRARNG on 7 March 2009.  There is no evidence in his enlistment documents that an incentive was offered and a Bonus Control Number (BCN) was not requested until 5 November 2009.  Furthermore, the NPSEB addendum was not signed until 24 August 2009. CUIC enlistment option only applied to applicants that enlisted into a critical UIC. The PRARNG only had one unit that was considered critical at his time of contract.  According to his DD Form 1966 he did not enlist into that critical UIC." 

	d.  The PRARNG filed an Exception to Policy on 17 November 2012, which was denied with recoupment on 5 March 2013.  The overpayment of the bonus is the fault of the government and recoupment can be waived.  Title 10, U.S. Code, section 2774, paragraph (a) states "A claim of the United States against a person arising out of an erroneous payment of any payer 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."  The applicant should receive no additional payments but relief from recoupment of the $5,000 received should be granted.  The PRARNG concurs with this recommendation.

6.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

7.  NGB Policy Memorandum Number 07-06, dated 10 August 2007, subject:  SRIP Guidance for Fiscal Year 2007, 10 August 2007 to 31 March 2008, with updates provides for various enlisted and officer bonus incentives.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the PRARNG on 7 March 2009 to attend language training.  Neither his enlistment contract nor his DD Form 1966 listed any MOS training or an incentive.  He did not enlist on that date for a critical unit or a critical MOS.  He executed a Bonus Addendum on 24 August 2009 for training/serving in MOS 88M and that promised him a $20,000 PSEB.  

2.  For unknown reasons, his Bonus Addendum was signed and assigned a Bonus Control Number.  In fact, upon becoming DMOSQ, he received the first half ($5,000) of what would have been normally authorized ($10,000) had he enlisted in a critical unit/MOS. 

3.  It is clear that he did not enlist for any incentive on 7 March 2009.  It is equally clear that he was paid half of the incentive by the very same organization that now claims he was not authorized the incentive in the first place.  He should not be penalized for mistakes committed by the people who enlisted him or the PRARNG.  

4.  Since none of this was his fault, and since a collection of the erroneously-paid first half would be against equity and good conscience and not in the best interest of the United States, as a matter of equity, the applicant should receive no additional payments but relief from recoupment of the $5,000 received should be granted.  

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 Army National Guard records of the individual concerned be corrected, as a matter of equity, by showing the National Guard Bureau granted his request for exception to policy to retain the first half ($5,000) of his NPSEB under the provisions of Title 37, U.S. code, section 373(b).

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 payment of the second half ($5,000) of said bonus. 



      _______ _   __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)                                         AR20130019702





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ABCMR Record of Proceedings (cont)                                         AR20130019702



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