IN THE CASE OF:	  

		BOARD DATE:	  4 June 2014

		DOCKET NUMBER:  AR20140002344 


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 cancellation of recoupment of the reenlistment bonus he received for his 6-year reenlistment which began on 28 July 2006.

2.  The applicant states that on 23 January 2006 he signed a 6-year reenlistment contract and at the time he accepted an extension bonus of $15,000.  His extension began on 27 July 2006.  He became a permanent Federal Technician (also known as Military Technician (MilTech)) on 6 August 2006.  At that time, he visited the benefits office and he was advised that the bonus would come through just fine and that he shouldn't worry about it.  When he received the bonus he put it in a separate bank account where it stayed for more than 3 years.  In November 2009, after the 3 years, he used the money to assist in the purchase of a home.

3.  The applicant contends that if this bonus was going to be recouped, it should have been done many years ago because he was acting in good faith when he received and spent the money.  At this point, he has invested the money in his home and having to pay it back would represent an enormous hardship on him and his family.  Therefore, he asks that the bonus not be recouped due to:

	a.  the information that he received from the benefits office; and

	b.  the time that has passed since he received the bonus.



4.  The applicant provides the following documents in support of his application:

	a.  a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment);

	b.  a National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) or DA Form 4836 - Reenlistment/Extension Addendum - Army National Guard (ARNG) of the United States);

	c.  a Standard Form (SF) 52-B (Request for Personnel Action); and

	d.  a memorandum, dated 23 August 2012.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Idaho Army National Guard (IDARNG) on 28 July 1993 and served in a variety of assignments.

2.  His record contains a DA Form 4836 which shows that on 23 January 2006 he extended his current enlistment in the IDARNG with an expiration term of service (ETS) date of 27 July 2006 for a period of 6 years.  As a result, his new ETS date was established as 27 July 2012.

3.  His record contains (and he also provides) an NGB Form 600-7-3-R-E rendered in conjunction with his extension on 23 January 2006.  This form shows the following pertinent information: 

	a.  In Section II (Eligibility), paragraph 3, he indicated he was not extending for a Title 10 or Title 32 Active Guard Reserve (AGR) position nor was he extending for a MilTech position;

	b.  Section III (Bonus Amount and Payment):

		(1)  paragraph 1c, shows he was extending for a period of 6 years to receive a total bonus payment of $15,000.  The bonus would be paid in a lump sum and processed for payment the day after his current ETS;

		(2)  paragraph 2, shows he acknowledged his understanding that he would not receive a payment if he did not meet all requirements at the time his extension took effect.  He also understood that his extension would be verified and certified by the proper authority prior to any payment being processed;

	c.  Section V (Termination), paragraph 5, he acknowledged his understanding that he would be terminated from bonus eligibility with recoupment if he accepted a MilTech position effective on the start date.  Recoupment is not required if he had served at least 6 months of the incentive contract following the date of bonus payment eligibility;

	d.  Section VI (Recoupment) shows that recoupment would be based upon multiplying the number of months served satisfactorily during the term for which the incentive was authorized by the proportionate monthly dollar amount; and

	e.  Section VII (Statement of Understanding) shows he acknowledged that he had read this addendum in its entirety.  He understood all of the above statements concerning his extension bonus.  He understood that this addendum would be void if he did not meet all of the requirements.  No other promises had been made to him in connection with this extension bonus.  He authenticated this document with his signature on 23 January 2006.

4.  His record contains, and he also provides, an SF 52-B, dated 5 May 2006, which announced that he was scheduled to fill a permanent MilTech position effective 6 August 2006.

5.  The applicant's record contains, and he also provides, an Idaho National Guard, Joint Force Headquarters, Boise, ID, memorandum, dated 23 August 2012, wherein the IDARNG State Incentive Manager notified the applicant that a discrepancy had been discovered with his $15,000 bonus incentive contract that must be resolved to avoid eligibility termination.  The reason for the discrepancy was the applicant's acceptance of an indefinite MilTech position on 6 August 2006 that converted to permanent on 6 August 2007.  As a result, he did not serve at least 6 months of his extension prior to acceptance of the MilTech position.  The applicant was advised that he may be eligible for an exception to policy (ETP) and he was further advised that failure to submit an ETP request to his State Incentive Manager within 45 days would result in immediate termination and/or recoupment of his incentive in accordance with Title 31, U.S. Code, section 3702.

6.  On 27 February 2013, the NGB denied the applicant's request for an ETP based on violation of ARNG Selected Reserve Incentive Policy (SRIP) 06-06.

7.  In the processing of this case an Advisory Opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G1, Washington, DC.  The advisory official noted that the IDARNG was recouping overpayments of the applicant's extension bonus based on the fact that he failed to serve the required 179 days prior to accepting a MilTech position.  He extended on 28 July 2006 and accepted an indefinite MilTech position on 6 August 2006, which converted to a permanent MilTech position on 6 August 2007.  As a result, the applicant only served 9 days in the position for which he accepted a bonus.  The applicant contends that the bonus should have been recouped many years ago; therefore, he should not be responsible to pay it back.  However, there is no statutory time limit on recoupment of a bonus.  As a result, the advisory official recommended concurrence with the ARNG's denial of the applicant's request.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to submit a response; however, he chose not to respond.

8.  National Guard Regulation 600-7 (SRIP), paragraph 2-8, provides that entitlement to and eligibility for an enlistment bonus is terminated effective the date the Soldier accepts a position as a military technician (includes temporary military technician over 179 days and indefinite technician) where membership is a condition of employment effective on the date of employment.  Soldier must have served at least 6 months of the incentive contract following the date of bonus payment eligibility.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for cancellation of recoupment of the reenlistment bonus he received for his 6-year extension which began 28 July 2006 was carefully considered.

2.  The evidence of record shows the applicant signed a written agreement for a $15,000 bonus at the time of extension in the IDARNG for a period of 6 years on 23 January 2006.  At the time, his ETS date was 27 July 2006; therefore, his extension began on 28 July 2006 and ended on 27 July 2012.

3.  The terms of his written agreement for the bonus stipulated, in part, that his eligibility for the incentive would be subject to termination with recoupment if he voluntarily transferred out of the position for which he had contracted in order to accept a MilTech position if he had served less than 6 months of the incentive contract following the date of bonus payment eligibility.

4.  The evidence clearly shows that he extended on 28 July 2006 and accepted an indefinite MilTech position on 6 August 2006, which converted to a permanent MilTech position on 6 August 2007.  As a result, the applicant only served 9 days in the position for which he accepted a bonus.  In view of the foregoing, the applicant clearly breached the terms of his contract and is not entitled to retain the bonus.

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)                                         AR20140002344



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ABCMR Record of Proceedings (cont)                                         AR20140002344



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