IN THE CASE OF:  	  

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20130021642 


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 his non-prior service enlistment bonus (NPSEB) and his officer accession bonus (OAB). 

2.  The applicant states he was and still is eligible to receive both the NPSEB and OAB.

	a.  He states he was eligible to receive the enlistment bonus upon graduation from basic training on 18 January 2007.  Under the provisions of the enlistment bonus addendum, his eligibility for the bonus would be terminated without recoupment since he commissioned as an officer more than 12 months after being eligible for the payment.

	b.  His officer-in-charge told him that since he was a newly commissioned officer he was eligible for a $10,000 OAB.  He was approached by a colleague with the OAB Addendum who requested that he review and sign it.  After successfully completing the basic officer leadership course (BOLC) he contacted Master Sergeant (MSG) J____, the State Incentives Manager, concerning the OAB.  She informed him she was aware of his status and was going to work on getting him his bonus.  A couple of weeks later he received the first $5,000 payment from the bonus.  He never received a second payment.

	c.  He believes he has served the purpose of the OAB and the NPSEB and recoupment on the bonus would be a grave injustice and not in the best interest of the Army.  He points out that a Department of Defense (DOD) memorandum dated 21 May 2008 provides that the Secretary of the Army may relieve a service member from repayment if recoupment is contrary to personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States.  He points out a portion of Rule 4 in Table 1 (Disposition of Unearned Portions of Bonuses, Special Pay Educational, Benefits or Stipends) which is an attachment to the DOD memorandum, dated 21 May 2008.

3.  The applicant provides:

* memorandum, dated 4 January 2013, from U.S. Property and Fiscal Office for California 
* DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States), dated 11 April 2006
* Annex E to DD Form 4, Enlistment Bonus Addendum, Army National Guard (ARNG) of the United States, dated 11 April 2006
* ARNG Fiscal Year (FY) 06 Selected Reserve Incentive Program (SRIP) Policy Guidance for 27 January 2006 - 31 May 2006 (Policy Number 06-04), dated 27 January 2006
* email, dated 27 July 2009, between the applicant and MSG J____, State Incentives Manager
* ARNG SRIP Guidance for FY 2007, 16 June 2007 - 31 March 2008 (Policy Number 07-05) (Revised 19 June 2007), dated 16 June 2007
* Critical Officer Area of Concentration (AOC) List, 16 June 2007 - 31 March 2008
* applicant's biographical summary
* a memorandum, dated 21 May 2008, from the Office of the Under Secretary of Defense (DOD)

CONSIDERATION OF EVIDENCE:

1.  On 11 April 2006, he enlisted in the California Army National Guard (CAARNG) for 3 years.

2.  Annex E, Enlistment Bonus Addendum, to his DD Form 4 stated in:

	a.  Section II - Eligibility, he was enlisting for military occupational specialty (MOS) 92A (Automated Logistical Specialist), which was identified as a $15,000 critical MOS, to serve 3 years in a paid drill status.

	b.  Paragraph 2 of Section III - Payments, he would receive his first bonus payment of 50% of the total authorized amount, less taxes, when he completed initial active duty training (IADT) and was awarded the MOS for which he enlisted.
	c.  Section V - Termination

		(1)  He would be terminated from bonus eligibility without recoupment if he accepted a commission as an officer and he had served at least 12 months of the incentive contract following the date of the bonus payment eligibility.

		(2)  He would be terminated with recoupment if he accepted a commission as an officer and he had not served at least 12 months of the incentive contract following the date of the bonus payment eligibility.

3.  On 7 March 2008, he was discharged from the CAARNG.

4.  On 8 March 2008, he was commissioned a second lieutenant in the CAARNG in AOC 88D (Transportation Corps).

5.  He completed a period of active duty from 11 January to 22 May 2009 in the grade of second lieutenant.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he completed BOLC and the Officer Leader Course Phase III. 

6.  A memorandum, dated 17 January 2014, from the CAARNG to the Army Board for Correction of Military Records stated:

	a.  The applicant signed an addendum for a 3-year contract for an NPSEB in violation of Department of Defense Instruction (DODI) 1205.21, dated 
20 September 1999, which required a 6-year contract.  Three-year contracts were not an option until 14 April 2006.

	b.  The applicant completed IADT on 27 March 2007 and the state certified his first bonus payment on 22 February 2008.  He received $5,000 on 5 March 2008.  On 7 March 2008, he accepted a commission as a second lieutenant.  Per the terms of his enlistment bonus addendum in order to retain the $5,000 payment, he was required to serve at least 1 year of his enlisted contract after reaching payment eligibility.  He was commissioned 21 days before that one year requirement was met.

	c.  On 8 March 2008, the applicant was commissioned and assigned to UIC WYEZA0 (CO A (-) 297th Support Battalion in AOC 88D.  On 18 March 2008, MSG J____, the State Incentives Manager at the time (later incarcerated for incentives fraud), requested a bonus control number for a $10,000 OAB and subsequently terminated the applicant's NPSEB effective 19 April 2009.  The applicant completed BOLC on 22 May 2009.  A $5,000 OAB (initial payment) was disbursed to the applicant on 12 August 2009.
7.  He provided a memorandum, dated 21 May 2008, from the Office of the Under Secretary of Defense.  This DOD directive-type memorandum established modified DOD policy guidance on repayment of unearned portions of bonuses, special pay, educational benefits, and stipends.  Attachment B to this memorandum provides a table for issuance in the DOD Financial Management Regulation.  As a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill the eligibility requirement related to a pay or benefit is due to circumstances determined reasonable beyond the member's control.  The table provides nine rules with 5 criteria, shown in columns A-E, that apply to each rule.  Rule 4 states if a member incurs an injury or illness, through no misconduct of the member that precludes the member from fulfilling the service condition specified in the written agreement (Column A) and the member continues in service in another capacity (Column B) then repayment of the unearned portion of the pay or benefit would not be sought if the Secretary concerned determines that to recoup the unearned portion would be contrary to a personnel policy or management objective, against equity or good conscience, or contrary to the best interest of the United States (Column C).

8.  In the processing of this case an advisory opinion was received from the National Guard Bureau (NGB).  NGB recommended recoupment of the applicant's NPSEB, relief from recoupment of his OAB, and denial of additional payment of the OAB.  NGB stated:

	a.  The Enlistment Bonus Addendum, Section V states the NPSEB is terminated with recoupment if the member accepts a commission and had not served more than 12 months of the incentive contract, following bonus payment eligibility.  The applicant's bonus payment eligibility was 27 March 2007 and he was commissioned on 8 March 2008, less than 12 months later.

	b.  At the time of commissioning, he met the eligibility requirement to receive the OAB but it was erroneously offered to him because he did not contract for it on the day he was commissioned.

	c.  The applicant stated he learned about the OAB after commissioning.  He signed a contract to receive a $10,000 OAB.  He has received a $5,000 payment. No OAB Addendum is filed in his Official Military Personnel File (OMPF).  Based on his statement, he was not aware that he would not have been eligible for the bonus after he had already commissioned.

9.  ARNG FY 06 SRIP Policy Guidance for 27 January 2006 - 31 May 2006 (Policy Number 06-05), dated 3 February 2006, superseded all previous SRIP policies for FY 2006 and established policy to administer the ARNG SRIP for the period effective 27 January 2006 through 31 May 2006 unless otherwise superseded or suspended.

	a.  Paragraph 5a stated the ARNG offered an NPSEB to non-prior service (NPS) enlistees who contract into the ARNG of the Selected Reserve for a minimum contractual obligation of 3 years. 

	b.  Paragraph 5a(2) offered a $15,000 NPS Critical Skill MOS Bonus to applicants who enlisted for the 3x5 enlistment option and select one of 20 NGB approved State critical skill MOS's listed by the state.  

10.  ARNG SRIP Guidance for FY 2007, 16 June 2007 - 31 March 2008 (Policy Number 07-05) (Revised 19 June 2007), dated 16 June 2007, superseded all previous SRIP guidance for FY 2007 and established policy for the period effective from 16 June 2007 through 31 March 2008.

	a.  Paragraph 14t stated applicants must sign their bonus addenda on or before their commissioning date.

	b.  Paragraph 14t(11) stated newly commissioned officers who retained an enlisted bonus (meaning there was no recoupment action) after serving more than 1 year of their enlisted incentive contract term could not receive the OAB.

	c.  Paragraph 14u(2) stated the ARNG offered a $10,000 OAB to newly commissioned officers who agreed to serve 6 years in a modification table of organization and equipment (MTO&E) unit.  In addition, the officer must have served in a valid AOC vacancy with their chosen UIC.  The MTO&E OAB was paid in two 50 percent installments.  The first 50 percent installment ($5,000) was paid upon successful completion of BOLC and the second and final installment of 50 percent was processed payment on the third year anniversary of commission. 

11.  Section 631 of the National Defense Authorization Act (NDAA) of 2006 (effective 6 January 2006) consolidated and modified bonuses for affiliation or enlistment in the Selected Reserve.  Title 37, U.S. Code, Section 308c (Special pay: bonus for affiliation or enlistment in the Selected Reserve) states in paragraph (c) (Accession Bonus Authorized) that the Secretary concerned
may pay an accession bonus to a person who:

* has not previously served in the armed forces
* executes a written agreement to serve as an enlisted member in the Selected Reserve of the Ready Reserve of an armed force for a period of not less than three years upon acceptance of the agreement by the Secretary concerned
DISCUSSION AND CONCLUSIONS:

1.  The CAARNG contended the applicant's bonus addendum was invalid because 3-year contracts were not authorized until 14 April 2006.  However, SRIP 06-05, dated 3 February 2006, effective for the period from 27 January 2006 through 31 May 2006 authorized 3-year contracts for the NPSEB.  The SRIP was in compliance with the NDAA FY 2006, effective 6 January 2006, that revised bonuses for the Selected Reserve and authorized a $15,000 bonus for a 3-year contract in the Selected Reserve.  Therefore, the applicant was fully eligible for the NPSEB at the time he signed his bonus addendum.

2.  The applicant contends he was eligible to receive the enlistment bonus upon graduation from basic training on 18 January 2007.  However, paragraph 2 of Section III of his Bonus Addendum specifically stated the first bonus payment of 50% of the total authorized amount, less taxes, would be paid when he completed IADT and was awarded the MOS for which he enlisted.

3.  CAARNG stated he completed his IADT on 27 March 2007.  It is reasonable to conclude this was the date he would have been awarded MOS 92A, thereby making it his payment eligibility date.  He was commissioned on 8 March 2008.  
Therefore, in accordance with Section V of his Bonus Addendum, he was to be terminated from bonus eligibility with recoupment because he had not served at least 12 months of his incentive contract following the date of his bonus payment eligibility date prior to accepting his commission.  

4.  He contends recoupment would be a grave injustice and not in the best interest of the Army.  He points out a portion of Rule 4 in Table 1, an attachment to DOD memorandum, dated 21 May 2008, as being applicable.  However, this rule applies to members who incur an injury or illness through no misconduct that precludes the member from fulfilling the service conditions specified in the written agreement.  Therefore, Rule 4 does not apply to the applicant.

5.  The policy that NPSEB was terminated with recoupment if a member accepted a commission and had not served more than 12 months of the incentive contract following bonus payment eligibility applied to all CAARNG Soldiers.  Recoupment was not contrary to personnel policy.  Because it applied to all CAARNG Soldiers, recoupment was not inequitable or contrary to the best interests of the U.S.  Therefore, there is no error or injustice in the recoupment of his NPSEB.

6.  In accordance with paragraph 14t(11) of ARNG SRIP Policy 07-05, if he had been eligible to retain his NPSEB without recoupment he would not have been eligible to receive the OAB.
7.  At the time a BCN was requested there had to have been an OAB Addendum available.  It was apparently certified by the State Incentives Manager who was later incarcerated for incentives fraud.  The applicant met all of the requirements set forth in ARNG SRIP 07-05.  NGB stated he was fully eligible for the OAB.  He would not be expected to know of the requirement of the dates required and signed the addendum when he was told to.  He signed the OAB Addendum and accepted the first payment in good faith.  He should not be penalized for administrative errors and possible dishonesty by the State Incentives Manager.

8.  The applicant has already completed 6 years in an MTOE unit in the AOC in which he was assessed.  Therefore, it would be equitable to correct his records by adding an appropriate OAB Addendum, dated 8 March 2008, in accordance with ARNG SRIP 07-05, paragraph 147(2).

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 records of the individual concerned be corrected by:

	a.  showing an appropriate OAB Addendum, dated 8 March 2008, was prepared and added to his records;

	b.  canceling any recoupment of the first OAB payment ($5,000) he received on 12 August 2009; and

	c.  paying him the second and final 50 percent installment of the OAB based on the third-year anniversary of his commission.

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 relief from recoupment of NPSEB.  




      _______ _   _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)                                         AR20130021642



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021642



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1