IN THE CASE OF: 

		BOARD DATE:	  3 April 2014

		DOCKET NUMBER:  AR20140002871 


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 military service records to show entitlement to a $20,000.00 Non-Prior Service Enlistment Bonus (NPSEB).

2.  The applicant states he enlisted in August 2008 for an NPSEB and training in military occupational specialty (MOS) 94T (Avenger System Repairer) beginning 8 April 2009.  The Military Entrance Processing Station (MEPS) counselor reported the applicant would be denied a security clearance due to unresolved credit issues and that he would be ineligible for MOS 94T.  As a result, his movement date was deferred for training in MOS 91D (Power Generation Equipment Repairer); however, he never signed a new contract.  He adds that MOS 94T only requires a Confidential security clearance and he was never denied a security clearance.

   a.  An Army National Guard (ARNG) Personnel - Vulcan printout listed MOS 91D (formerly MOS 52D) as a critical skill (CS) MOS that qualified for the NPSEB.

   b.  He completed basic and advanced individual training, was awarded MOS 91D, returned to his home station duty MOS qualified (DMOSQ), and received the first half of his NPSEB.

   c.  In August 2011, after initiating an inquiry into payment of the second half of his NPSEB, a determination was made that he wasn't under contract for MOS 91D and his NPSEB was terminated.

   d.  He states his enlistment contract does list MOS 94T; however, there is also a "change order" showing MOS 91D.  He adds that he was eligible for a Secret security clearance and he fulfilled every aspect of the terms of the "supposed" contract.

   e.  A request for exception to policy (ETP) was submitted on behalf of the applicant that explained the circumstances surrounding his situation; however, the National Guard Bureau (NGB) denied the request.

3.  The applicant provides copies of documents related to actions taken to obtain his enlistment bonus.

CONSIDERATION OF EVIDENCE:

1.  On 5 August 2008, the applicant enlisted in the Army National Guard of the United States (ARNGUS) for a period of 8 years and the South Carolina Army National Guard (SCARNG) for a period of 6 years.

2.  An Enlistment/Reenlistment Agreement ARNG Service Requirements and Methods of Fulfillment shows in:

   a.  Section III (Explanation to Applicant) that the applicant's initial enlistment was as an NPS member.  It further shows, "Unless otherwise stipulated on an Annex attached to the DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), I will enter and satisfactorily complete an initial period of active duty for training (ADT) to become qualified in an MOS as soon as a training space is available.  If for any reason beyond my control I am unable to complete the training during the period for which I was initially ordered to ADT, I agree to:

    	(1)  remain on ADT for such additional period as is required to become qualified in my selected MOS, or

    	(2)  accept training in an alternate MOS if offered, and remain on initial ADT (IADT) for such additional training as is required to complete such training.
   
   b.  Section IV (Acknowledgement), in pertinent part, "I am enlisting under the program or programs as indicated below:  School course, I have been assured of attending the school course for:  MOS 94T - Avenger System Repairer."

   c.  Section VII (Addendums) states, "The following addendums have been attached and are part of my enlistment agreement:" and, in pertinent part, shows "Enlistment Bonus Form."
   d.  The applicant and an Army counselor signed the form on 5 August 2008.

3.  MEPS, Charlotte, NC, Orders 8261013, dated 17 September 2008, ordered the applicant to IADT on 11 August 2009 for 10 weeks of basic training and reporting on 26 October 2009 for 18 weeks of MOS training (or until complete) in MOS 91D1O.

4.  Annex E to DD Form 4 (NPSEB Addendum - ARNGUS) shows the applicant enlisted into MOS 94T, a CS MOS, and he would receive an NPS CS bonus (50/50 payment).

	a.  He would receive a total bonus in the amount of $20,000.00, less taxes.  The first bonus payment of 50 percent of the total was authorized to be paid upon completion of IADT and award of the bonus MOS.  The second payment of 50 percent was to be paid on the 36-month anniversary of the date of enlistment.

	b.  A review of the addendum does not show a security clearance as an eligibility requirement for the MOS.

   c.  The applicant and an Army counselor signed the form on 7 April 2009.

5.  The applicant was promoted to private first class (E-3) on 1 November 2009.

6.  U.S. Army Combined Arms Support Command, Fort Lee, VA, Orders 
324-00360, dated 20 November 2009, awarded the applicant primary MOS (PMOS) 91D1O effective 5 February 2010 (or upon course completion).

7.  The applicant was promoted (in MOS 91D) to:

* specialist (E-4) effective 9 March 2010
* sergeant (E-5)  effective 1 September 2013

8.  In support of his application, the applicant provides the following documents:

	a.  Joint Clearance Access Verification System (JCAVS) Person Summary that shows a personnel security investigation pertaining to the applicant was opened on 11 August 2008, closed on 22 September 2008, and the Army Central Clearance Facility (CCF) made a determination he was eligible for a Secret security clearance on 1 April 2009.

   b.  SCARNG Orders 195-851, dated 14 July 2009, reassigned the applicant from an MOS 94T duty position to an MOS 52D1O duty position effective 8 July 2009 based on reclassification.
   c.  ARNG Personnel, Recruit Sustainment Program (Vulcan) - SC, in pertinent part, shows the applicant:

* had an MOS change from 94T to 91D on 20 April 2009
* successfully graduated from MOS training on 15 February 2010

   d.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 11 August 2009, was honorably released from ADT on 5 February 2010, and transferred to an SCARNG unit.  It also shows he completed the Power Generation Equipment Repairer course and was awarded PMOS 52D1O.

   e.  SCARNG Orders 159-801, dated 8 June 2010, reassigned the applicant from/to a 91D1O duty position, effective 8 June 2010, based on unit vacancy.

   f.  Two Defense Finance and Accounting Service Forms 702 (Leave and Earnings Statements), dated 12 December 2012 and 23 January 2013, show the applicant's original debt of $10,000.00 for a Reserve bonus and the debt balance.

	g.  An NGB memorandum, dated 28 January 2014, subject:  Request for ETP for NPSEB (Applicant), shows the NGB Deputy G-1 stated:

		(1)  in accordance with ARNG Selected Reserve Incentive Program (SRIP) Guidance, Policy Number 07-06 (10 August 2007 to 28 February 2009), eligible applicants were offered the NPSEB.

		(2)  the applicant enlisted for the NPSEB in CS MOS 94T.  

    	(3)  The NPSEB addendum was signed after the date of enlistment.  In addition, the applicant is not serving in the MOS for which contracted due to the inability to obtain the required security clearance and his current MOS is 91D.  Thus, his situation violates ARNG SRIP Guidance 07-06.

		(4)  The applicant's request to retain the $20,000.00 NPSEB was denied and the State Incentive Manager (IM) was instructed to terminate the incentive with recoupment.

9.  Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 56 (Selected Reserve Accession, Affiliation, Enlistment, and Reenlistment Bonuses), paragraph 560302 (Affiliation Bonus), provides that the Secretary concerned will designate the skills, units, and pay grades for which an affiliation bonus may be paid.
	a.  Any skill, unit, or pay grade so designated will be a skill, unit, or pay grade for which there is a critical need for personnel in the Selected Reserve of the Ready Reserve of an Armed Force, as determined by the Secretary concerned.

	b.  The Secretary concerned will establish other requirements to ensure that members accepted for affiliation meet required performance and discipline standards.

		(1)  The amount of a bonus may not exceed $20,000.00.

		(2)  Upon acceptance of a written agreement by the Secretary concerned, the total amount of the bonus payable under the agreement becomes fixed.  The agreement will specify whether the bonus will be paid by the Secretary concerned in a lump sum or installments.

		(3)  A member who enters into an agreement and receives all or part of the bonus under the agreement, but who does not commence to serve in the Selected Reserve or does not satisfactorily participate in the Selected Reserve for the total period of service specified in the agreement, will be subject to the 
repayment provisions of chapter 2.

   c.  Chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, 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 the following: 

    	(1)  contrary to a personnel policy or management objective;

    	(2)  against equity and good conscience; or 

    	(3)  contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show entitlement to a $20,000.00 NPSEB because he was not offered training in CS MOS 94T due to an erroneous belief that he would be ineligible for a security clearance, he received training in CS MOS 91D, he is DMOSQ in the MOS, and he qualified for a Secret security clearance.

2.  Records show the applicant enlisted for an NPSEB for CS MOS 94T in the amount of $20,000.00 on 5 August 2008.

   a.  On 17 September 2008, orders were issued for the applicant to attend basic training in August 2009 with training in MOS 91D in October 2009.

   b.  On 1 April 2009, the Army CCF determined he was eligible for a Secret security clearance.
   
   c.  On 7 April 2009, the Army counselor prepared Annex E for an NPSEB based on MOS 94T.  Both the applicant and Army counselor signed the document.

   d.  There is no evidence of record that shows the applicant was unqualified for MOS 94T or that he declined training in MOS 94T.

   e.  Nonetheless, based on previously-issued orders, the applicant complied with his IADT orders, was awarded PMOS 91D1O on 5 February 2010, and he received the initial NPSEB payment of $10,000.00.

3.  The evidence of record shows the initial $10,000.00 bonus payment is being recouped from the applicant.

4.  On 28 January 2014, the NGB denied the applicant's request for ETP for the $20,000.00 NPSEB.  Accordingly, the State IM was instructed to terminate the incentive with recoupment.

5.  While the applicant's enlistment contract specifies eligibility for the NPSEB based on the CS bonus MOS 94T, this is not the overriding issue in this case.
   
   a.  There is no evidence of record that shows the applicant was ineligible/ unqualified for training in MOS 94T or that he declined training in MOS 94T.

   b.  The fact that the Army counselor prepared the NPSEB addendum after the date of enlistment is not the fault of the applicant and appears to be an error on the part of the government.

	c.  The evidence of record shows MOS 91D is also a CS bonus MOS.  It also shows the applicant was awarded MOS 91D after being ordered to attend training in MOS 91D.  Thus, he accepted training in the alternate MOS he was offered and he remained on IADT to complete the alternate training.  In addition, he completed the 36-month service requirement on 4 August 2011.

   d.  It is not clear why, just one month after enlisting for MOS 94T, orders were issued ordering the applicant to attend training in MOS 91D for a class to be held more than 1 year after the orders were issued.  However, there is no evidence of record that shows the applicant renegotiated his contract or otherwise declined to comply with the terms of his enlistment contract that included training in MOS 94T.  In fact, on 7 April 2009, just 6 days after the Army CCF determined he was eligible for a Secret security clearance, the applicant affirmed his commitment to the terms of his enlistment contract and the NPSEB for MOS 94T.  Nonetheless, the Army failed to ensure the applicant received training in MOS 94T.

	e.  Thus, the applicant's contention has merit.

6.  In view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show he satisfied the requirements for entitlement to a $20,000.00 NPSEB.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:

	a.  showing he satisfied the requirements for entitlement to a $20,000.00 Non-Prior Service Enlistment Bonus in a critical skill bonus military occupational specialty and

	b.  paying him the Non-Prior Service Enlistment Bonus specified for critical skill bonus military occupational specialty 91D out of Army National Guard funds.


2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment to the applicant any amount that may have been recouped from the initial payment of his Non-Prior Service Enlistment Bonus and payment of the second installment of the enlistment bonus (less any withholdings).



      __________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)                                         AR20140002871



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ABCMR Record of Proceedings (cont)                                         AR20140002871



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