IN THE CASE OF:	  

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20140000831


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 military records to show he is authorized to retain payments for his Enlisted Affiliation Bonus (EAFB), Prior Service Enlistment Bonus (PSEB), and Reenlistment Bonus (REB).

2.  The applicant states he relied on the expertise of his career counselors for determining his eligibility for the EAFB and REB.

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 19 January 2000 to 31 May 2005
* National Guard Bureau (NGB) Form 21 (Annex A – DD Form 4 – Enlistment/Reenlistment Agreement – Army National Guard (ARNG)), dated 16 November 2006
* NGB Form 600-7-4-R-E (Annex B to DD Form 4 – EAFB Addendum – ARNG of the United States), dated 28 November 2006
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) dated 30 November 2006
* California ARNG (CAARNG) Orders 382-1120, dated 18 December 2006
* DA Form 1059 (Service School Academic Evaluation Report), dated 29 June 2008
* CAARNG Orders 199-1082, dated 17 July 2008
* CAARNG Orders 238-2047, dated 25 August 2008
* CAARNG Orders 296-364, dated 22 October 2008
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 26 February 2009
* NGB Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 – Reenlistment/Extension Bonus Addendum – ARNG of the United States), dated 26 February 2009
* list of pay vouchers, dated from 2007 to 2009
* CAARNG Orders 106-1616, dated 16 April 2009
* Defense Finance and Accounting Service (DFAS) payments report commencing on 30 November 2009
* DD Form 214 for the period 28 November 2008 to 4 December 2009
* CAARNG Orders 347-1034, dated 13 December 2011
* CAARNG Orders 357-2225, dated 23 December 2011
* ARNG Retirement Points History Statement, dated 28 November 2012
* DA Form 2823 (Sworn Statement), dated 6 January 2013
* DA Form 2823 (Sworn Statement), dated 7 January 2013
* DFAS Military Leave and Earnings Statement for check dated 4 September 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 19 January 2000.  He was separated on 31 May 2005 due to completion of his required active service.

3.  On 30 November 2006, the applicant enlisted in the CAARNG for 3 years beginning in pay grade E-5.  In conjunction with this enlistment, he signed the following annexes:

* Annex A, dated 16 November 2006, for a PSEB of $7,500.00
* Annex B, dated 28 November 2006, for a $10,000.00 EAFB paid in two installments

4.  In a sworn statement, dated 7 January 2013, the applicant said he had opted for a 6-year commitment and an REB of $15,000.00.  He further stated he received this bonus on 26 March 2010.

5.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The opinion stated:

	a.  On 16 November 2006, the applicant signed a 3-year bonus addendum for a PSEB in the amount of $7,500.00.

	b.  On 28 November 2006, the applicant signed an EAFB addendum for a bonus in the amount of $10,000.00.  However, he should not have been eligible for this bonus because he did not contract for it while still serving on active duty.

	c.  The applicant received payments totaling $9,500.00.  Of this amount, $7,500.00 was from the PSEB and $2,000.00 was from the EAFB.  Recoupment was initiated and he repaid $719.49 as of 29 January 2014.

	d.  NGB recommends recoupment of the EAFB payment of $2,000.00.

	e.  NGB recommends his retention of the PSEB in the amount of $7,500.00.

	f.  The applicant contracted for an REB in the amount of $15,000.00 which he received on 26 March 2010.  He should not have been allowed to contract for this incentive because such contracts require either two 3-year contracts or one 
6-year contract.  Furthermore, a copy of the contract is no longer on file.  However, the applicant stated he did sign the required documents for the REB.  A written agreement was presumably signed because the State Incentives Manager requested a bonus control number on 19 February 2009.

	g.  The Office of the Under Secretary of Defense published a memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends.  This memorandum states, "A member who enters into a written agreement with specified conditions for receipt of a pay or benefit, is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  The Deputy Secretary of Defense policy memorandum recognized that, at the time, members were subject to statutory repayment for any unearned portion of a pay or benefit, as appropriate.  However, it was also understood there may be circumstances that support the need to refrain from taking such action."  Therefore, the CAARNG erroneously allowed the applicant to enter into a contract and the terms of the contract should be upheld and relief from recoupment should be granted.

6.  On 26 March 2014, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

7.  National Guard Regulation 600-7 (Selective Reserve Incentive Programs), chapter 2, paragraph 2-3g, states an ARNG Enlistment Bonus Addendum is to be completed at the time of and as part of the enlistment contract.

8.  National Guard Regulation 600-7, chapter 2, paragraph 2-5, states enlistment bonus contracts are valid only with bonus control numbers that will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by State policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

9.  Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedure – 20 September 1999), paragraph E4.1.1.6, allows for either two 3-year bonus agreements or one 6-year bonus agreement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he is authorized to retain payments for his EAFB, PSEB, and his REB because he relied on the expertise of his career counselors for determining his eligibility for these bonuses.

2.  The evidence shows the applicant signed a 3-year bonus addendum in 2006 for a PSEB of $7,500.00.  He should be permitted to retain this bonus.

3.  The evidence shows the applicant also signed an EAFB addendum in 2006 for $10,000.00.  He received $2,000.00 of this bonus.  However, he was not eligible for this bonus because he did not contract for it while still serving on active duty.  Therefore, the payments toward the EAFB should be recouped.  The evidence shows the applicant has already paid $719.49.

4.  The evidence also shows the applicant contracted for an REB in the amount of $15,000.00.  He has already received this bonus.  Because the written agreement is not on file, recoupment action was initiated.  In accordance with the Secretary of Defense memorandum, the applicant's REB should not be recouped.  Rather, the applicant's records should be corrected by showing a properly-prepared contract was signed by all appropriate officials and placed in his file.
5.  It is evident that some errors were committed in the processing of his enlistment/reenlistment.  However, there is no evidence showing any of it was the applicant's fault.  He enlisted in good faith and continues to serve the terms of his enlistment.  He should not be penalized for errors committed by recruiting officials, the State Incentive Manager, or NGB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

	a.  showing all required contracts and other documents pertaining to his reenlistment and REB in the amount of $15,000.00 were properly-prepared and signed and placed in his records,

	b.  stopping any and all recoupment action pertaining to the $15,000.00 REB and/or PSEB and refunding any monies already recovered as a result of the above correction,

	c.  paying him any remaining bonus amounts as a result of the above corrections from ARNG funds.

2.  The Board further determined the evidence presented is 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 retaining any part of the EAFB in the amount of $10,000.00.



      _____________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)                                         AR20140000831



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ABCMR Record of Proceedings (cont)                                         AR20140000831



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