IN THE CASE OF:	   

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130020719 


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, his exception to policy to retain the reenlistment bonus in the California Army National Guard (CAARNG) be approved.  

2.  The applicant states:

	a.  In February 2009, he received a reenlistment bonus of $15,000.  The CAARNG is now attempting to recoup this bonus due to him going into an inactive Guard status.  He was told he was approved for a one-year Inactive National Guard (ING) status.  During this ING period, he was never informed by his unit or his unit Retention Noncommissioned Officer (NCO) with D Company, 184th Infantry.  He was only informed exactly one year after his ING period that he needed to report to the January drill in 2012.  Due to his civilian job as an undercover drug agent, he requested one year of ING.  This was approved so he could work the special assignment.

	b.  He was not informed that the ING status would affect his bonus.  He was never sent a letter or communication that he needed to go back after a 6-month period.  His unit contacted him in December that he needed to report back to drill in January 2012.  He attended the January 2012 drill and has been an active drilling Soldier since.  He does not know why he would be approved for 1 year of ING if he had to go back after 6 months.  He also does not know why he was not informed.  The lack of knowledge and guidance affect his bonus.  He is not sure what to do next to resolve this issue.  If the Inspector General needs to be contacted, he believes he can make this happen.  Likewise, if the local news should be contacted, he can also make that happen.  He served his country on several deployments and he works on a county narcotics task force.   

3.  The applicant provides a Memorandum for Record.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CAARNG for 6 years on 12 February 2003.  

2.  He entered active duty for training (ADT) on 4 June 2003.  He completed training for and was awarded military occupational specialty (MOS) 19D (Cavalry Scout).  He was released from ADT on 9 October 2003.  

3.  He entered active duty on 16 August 2004 and subsequently served in Kuwait/Iraq from 28 January 2005 to 12 January 2006.  He was honorably released from active duty on 17 February 2006.  

4.  On 26 February 2009, he executed a 6-year extension of his enlistment in   the CAARNG.  In connection with this enlistment, he completed Annex R (Reenlistment/Extension Bonus Addendum) to DD Form 4 (Enlistment/Reenlistment Document).  He indicated he understood:

* he would receive a total bonus payment in the amount of $15,000 for a    6-year reenlistment/extension in the Modified Table of Organization and Equipment (MTO&E) unit
* he is enlisting into a valid, MTO&E position and he is MOS-qualified for the position as of the date of this extension
* he would be suspended from bonus eligibility if he enters a period of non-availability (placement in the ING); maximum periods of non-availability are 1 year for personal reasons and 3 years for missionary reasons
* his bonus would be terminated if he fails to extend his enlistment for time served in the ING within 30 days after returning to his unit; recoupment would be calculated from the date of transfer to the ING
* his bonus would be terminated with recoupment if he exceeds the maximum time authorized in the ING; recoupment would be calculated from the date of transfer to the ING

5.  He entered active duty on 5 December 2008 and subsequently served in Germany/Kosovo from 14 February to 23 May 2009.  He was honorably released from active duty on 6 June 2009. 

6.  On 27 September 2010, Joint Forces Headquarters, CAARNG published Orders 270-1002 releasing him from assignment to the 1st Battalion, 184th Infantry, Oakdale, CA, and transferring him to the ING effective 22 September 2010.   The orders stated in the Additional Instructions: 

Additional Instructions:  This constitutes removal from active status and may impact certain benefits such as Montgomery GI Bill eligibility, accumulation of retirement points, promotion eligibility, date of rank and bonus eligibility.  Soldier remains a mobilization asset and can be involuntarily mobilized for Federal or State active duties.  Service members Group Life Insurance is terminated upon entering the ING

7.  On 4 October 2011, the applicant's unit commander issued a memorandum through the chain of command requesting the applicant be relieved from the ING and return to drilling status.  

8.  On 2 December 2011, Joint Forces Headquarters, CAARNG, published Orders 336-1017 releasing the applicant from the ING and transferring him to the 1st Battalion, 184th Infantry, effective 29 November 2011. 

9.  On 5 December 2011, Joint Forces Headquarters, CAARNG, published Orders 339-1029 amending the applicant's effective date of transfer to the ING from 29 November to 1 September 2011. 

10.  On 25 January 2012, Joint Forces Headquarters published Orders 25-1005 reassigning the applicant from the 1st Battalion, 184th Infantry, to the 1040th Quartermaster Company (Water Treatment), effective 24 January 2012.   

11.  He completed training for MOS 92W (Water Treatment Specialist) and he was promoted to sergeant (SGT)/E-5 on 17 July 2013.  

12.  He provides a memorandum for record, dated 31 October 2013 from the Readiness Noncommissioned Officer (NCO) of the 1st Battalion, 184th Infantry, Oakdale, CA.  This NCO states the applicant received a reenlistment bonus in the 2008/2009 timeframe while in Kosovo.  Upon the unit's return, he was hired on a Task Force for his police department in Los Banos, CA.  He requested to go into the ING due to the nature of his assignment.  At that time, he (the author) was the Training NCO for his unit.  The commander authorized the applicant to enter the ING for a period not to exceed 1 year.  At that time, no one was aware of any effects this would have on his bonus and the unit does not feel the bonus should be recouped.  

13.  An advisory opinion was received from the Deputy Chief of Staff, G-1.  The advisory official recommended approval of the applicant's request for administrative relief, following extension for the time he spent in the ING and that no portion of the bonus be recouped.  The advisory official stated: 

	a.  A review of the applicant's records indicates he was offered and contracted for a $15,000 reenlistment bonus while deployed to Kosovo.  Upon his return, he was authorized to enter the ING for a one-year period due to a critical assignment in his civilian job.  He returned to his unit in January 2012 and he remains a Soldier in good standing.  But, there is no extension in his military record to make up for the period of non-availability.  Additionally, the orders authorizing him to enter the ING are not filed in his records.  

	b.  Although there is an entry in the Information Management and Reporting Center (iMARC) showing entry into the ING on 22 September 2010, the authorized start date of his absence cannot be determined.  As with many actions concerning enlistments and extensions conducted by the CAARNG in this particular time frame, a myriad of administrative errors exist.  The CAARNG has been under investigation and audit of their incentive program to identify and rectify errors, acts of omission, and fraudulent/criminal activities that had taken place.  Due to the questionable actions of the state during the period, the NGB finds in favor of the applicant.  These errors are not his fault. 

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant extended his enlistment in the CAARNG on 26 February 2009.  His bonus addendum clearly informed him and he acknowledged he understood he would be suspended from bonus eligibility if he entered a period of non-availability (placement in the ING); maximum periods of non-availability are         1 year for personal reasons; his bonus would be terminated if he failed to extend his enlistment for time served in the ING within 30 days after returning to his unit; recoupment would be calculated from the date of transfer to the ING; and/or his bonus would be terminated with recoupment if he exceeds the maximum time authorized in the ING and recoupment would be calculated from the date of transfer to the ING.  

2.  He requested to be placed in the ING on 1 September 2010.  Contrary to the advisory opinion, his orders are in fact filed in his records and clearly state "this constitutes removal from active status and may impact certain benefits such as Montgomery GI Bill eligibility, accumulation of retirement points, promotion eligibility, date of rank and bonus eligibility."  Amended orders released him from the ING effective 1 September 2011 and he returned to active drilling status on 24 January 2012.  However, he failed to extend his enlistment for time served in the ING within 30 days of returning to his unit.  Therefore, he was in breach of his contract.  

3.  Also, upon his release from the ING he was reassigned out of his bonus unit and out of his bonus MOS, a further breach of his contract

4.  Contrary to the advisory official's opinion that due to the questionable actions of the state and investigations during the period, the applicant's breach of contract is not related to any improper action by any recruiters, career counselors, or enlistment/reenlistment officials.  

5.  Also contrary to the advisory official's opinion and/or the statement by the Readiness NCO that the errors are not his fault, the evidence shows the applicant's contract clearly spelled out his contractual obligations.  Furthermore, the orders transferring him to the ING alerted him to the impact on his bonus. 

6.  While his service as a member of a police task force is certainly noted, nowhere does it show he should receive preferential treatment or benefit from a breach of contract while others are not equally treated.  

7.  He did not fulfill the contractual obligation he agreed to.  The terms of his agreement stipulated that the bonus would be terminated with recoupment if he failed to extend his enlistment for time served in the ING within 30 days of returning to his unit.  There does not appear to be an error or an injustice.  As such, notwithstanding the favorable opinion, he is not entitled to the 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)                                         AR20130020719



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ABCMR Record of Proceedings (cont)                                         AR20130020719



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