IN THE CASE OF:  	  

		BOARD DATE:  22 January 2015	  

		DOCKET NUMBER:  AR20140002749 


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 correction of his records to show he is authorized to retain his Non-Prior Service Enlistment Bonus (NPSEB) offered at the time of his enlistment in the Nevada Army National Guard (NVARNG) on 1 April 2008.

2.  The applicant states:

	a.  On 1 April 2008, he enlisted for the non-critical skill NPSEB ($20,000.00) in military occupational specialty (MOS) 68W (health care specialist).  The second half of the incentive was never paid.

	b.  Upon return from his deployment, he was offered a temporary military technician position with the NVARNG as an assistant health systems specialist.  When he was completing the paperwork for this employment, he was notified that he would not be eligible for the second half of his enlistment bonus upon acceptance of the position.  He told his command sergeant major that he did not accept this position if this was accurate because the bonus was more beneficial to him than the position.  He was instructed to talk to the incentives manager for confirmation.

	c.  The State Incentives Manager informed him that she had contacted the National Guard Bureau (NGB) and was told he would receive his bonus payment in April 2011 because he would not be a temporary military technician for more than 180 days at the time his bonus payment was due.  Therefore, he accepted the position.

	d.  The State Incentives Manager left in March 2011.  When he didn't receive the second installment of his bonus in April 2011, he contacted the new bonus and incentives representative.  He was told he did not meet the requirements for the bonus due to his employment as a military technician.

	e.  He submitted a request for an exception to policy to the NGB twice, but both requests were denied.  He has done nothing wrong and he has done nothing to break his contract.  He only accepted the position because he was informed by the State Incentives Manager at the time in question that he would receive his bonus in full.  This issue was brought up to his chain of command and they were also given false information.

3.  The applicant provides:

* NPSEB addendum
* DA Forms 2823 (Sworn Statement)

 CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NVARNG on 1 April 2008 for a period of 8 years.  His NPSEB Addendum shows he enlisted for MOS 68W and a bonus in the amount of $20,000.00.  The addendum states he would be paid the first bonus payment of 50 percent of the total authorized amount upon completion of initial active duty training and the second and final payment of 50 percent would be paid on the 36-month anniversary of his date of enlistment.

2.  He was ordered to active duty on 15 April 2009 in support of Operation Enduring Freedom.  He served in Afghanistan from 26 June 2009 to 16 March 2010.  On 24 April 2010, he was released from active duty.

3.  He provided a sworn statement from the State Incentives Manager at the time in question, dated 27 February 2012, which states:

	a.  During her time as the Nevada State Incentives Manager she was approached by the applicant with questions regarding the conditions of his bonus.  When he was first hired as a temporary military technician he was told he might have his bonus terminated.  She spoke with the applicant briefly and then sought assistance from regional representatives.

	b.  She was given guidance from the regional representatives that the applicant would be eligible for his bonus anniversary payment because at the time the payment was due (1 April 2011) he would have only been a temporary military technician for 154 days.  She was told that regardless of the length of his military technician orders, on the date of payment he would be eligible since he would not have served more than the 179 days authorized.  She was then told that the bonus would be terminated without recoupment once he exceeded 179 days.  She accepted this response and advised the applicant of his situation and that he would be eligible for his bonus.

	c.  As for his signature on the Notice to "Temporary Employees Tenure 0," dated 27 October 2010, stating that his bonus could be affected by his continuous employment over 179 days and to consult his Military State Incentives Manager, the applicant did exactly that.  He did the right thing and contacted her, the State Incentives Manager, and was advised of his eligibility.

	d.  The applicant was led to believe that he would have no trouble receiving the remainder of his bonus.  He kept his promise to the NVARNG by upholding his portion of the contract and did the right thing by following every step possible.

4.  He was promoted to staff sergeant in the NVARNG on 9 May 2013.

5.  In the processing of this case, a staff advisory opinion was obtained from NGB.  The advisory official recommended granting full administrative relief by paying the applicant the final $10,000.00 installment of the NPSEB.  The opinion stated:

	a.  The applicant enlisted on 1 April 2008 with a $20,000.00 NPSEB.  He received the first half of the bonus according to the payment schedule.  The second installment of the NPSEB was not paid because he was in a temporary military technician status (from 26 October 2010 through 25 October 2011) when the payment was due on 1 April 2011.

	b.  When the applicant was offered a temporary military technician position, he responded that he would take the position if it did not affect the bonus.  He informed his chain of command and he contacted the State Incentives Manager and was informed he would remain bonus eligible.  The interpretation of the rule was that as long as the Soldier had not exceeded 179 days as of the date the bonus installment payment was due, the bonus would be paid.  At the time the second installment was due, the applicant had been in the temporary military technician position for 158 days.  The State Incentives Manager at the time provided a sworn statement stating that is what happened.

	c.  According to the NGB Incentives Oversight Branch, the applicant should have received the second payment, and then at 180 days the incentive should be terminated without recoupment.  In effect, the applicant would receive the entire amount of the bonus because no further payments would have been due past the date of termination.  The bonus being terminated earlier is based on the rules governing permanent or indefinite military technician positions, not temporary military technician positions.

	d.  The State concurs with this recommendation.

6.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond.

7.  Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), section 0201 (General Provisions), provides that a member of the Uniformed Services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "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.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202.

8.  Department of Defense Financial Management Regulation, volume 7A, chapter 2, section 0202 (Repayment and Non-repayment Conditions), provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following:

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be paid the second installment of the NPSEB.

2.  The evidence confirms he enlisted in the NVARNG on 1 April 2008 for an NPSEB in the amount of $20,000.00.  He received the first installment ($10,000.00) according to the payment schedule.

3.  He accepted a temporary military technician position after the State Incentive Manager confirmed he would remain bonus eligible and it appears his second installment of the bonus ($10,000.00) was not paid because he was in a temporary military technician status when the payment was due.

4.  NGB points out the applicant's NPSEB bonus was terminated based on the rules governing permanent or indefinite military technician positions, not temporary military technician positions.

5.  Otherwise, he was eligible for the bonus at the time of enlistment and did absolutely nothing wrong.  In view of the facts of this case and based on the advisory official's recommendation, it would be appropriate at this time and serve the interest of justice and equity to correct the applicant's records and pay him the NPSEB in the amount of $20,000.00.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 he was granted an exception to policy to retain the NPSEB in the amount of $20,000.00; and

	b.  paying him any portion of the NPSEB not already paid up to the amount of $20,000.00.



      _______ _   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)                                         AR20140002749



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ABCMR Record of Proceedings (cont)                                         AR20140002749



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