IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140003277 


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, cancellation of recoupment of the first payment of $10,000.00 and receipt of the second payment of $10,000.00 of a $20,000.00 Non-Prior Service Enlistment Bonus (NPSEB). 

2.  He states he enlisted at the San Jose Military Entrance Processing Station (MEPS) for a $20,000.00 enlistment bonus.  He was given a bonus control number (BCN) but was unaware that he needed an addendum for the bonus until 2012.  He received the first payment of $10,000.00 after graduating from advanced individual training.  In December 2010, he contacted several people in the California Army National Guard (CAARNG) in an effort to get the second payment of his NPSEB but was told that he had to wait until he completed the contract in January 2012.  In 2012, the Army stopped payment of the second payment of his NPSEB and requested recoupment of the first payment.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored statement
* Reservation letter
* Emails
* Wage and Tax Statement (W-2)
* Goodwill donation receipt
* Election registration mail
* Support statement0020
* Memorandum, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 21 April 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the CAARNG on 14 January 2009 for a period of 8 years of which he agreed to serve 3 years in a troop program unit.

2.  His Enlistment/Reenlistment Agreement shows he enlisted in military occupational specialty (MOS) 09L (Translator Aide).  Section VII (Addendums) of his agreement shows the Montgomery GI Bill was the only addendum attached and a part of his enlistment agreement.

3.  Section VI (Remarks) of his DD Form 1966 (Record of Military Processing - Armed Forces of the United States) contains the statement of:  "Applicant is part of the 09L Program and is awarded pay grade of E-4, along with an incentive of $20,000.00.  Enlistment is for 3 years.  Per:  ECM (Enlistment Criteria Memorandum) FY07 (Fiscal Year 2007).  Control Number E08010029CA."

4.  On 17 September 2009, the applicant successfully graduated from the 09L Interpreter/Translator Course and was awarded primary MOS 09L.

5.  On 5 April 2010, he was ordered to active duty in support of Operation Iraqi Freedom and served in Iraq from 17 May 2010 to 12 November 2010.  He was retained on active duty to complete medical care and treatment.  He was retired due to permanent disability on 29 December 2013.

6.  In a memorandum, dated 7 November 2014, the Soldier Incentives Assistance Center (SIAC) recommended approval of the applicant's request for an additional payment of $10,000.00 and termination without recoupment of the $10,000.00 already paid.  The commander stated that the applicant would have been otherwise eligible for the $20,000.00 NPSEB if not for the absence of the written agreement.

7.  He said the applicant enlisted NPS into the CAARNG for 3 years on 
14 January 2009 as an E-4 in MOS 09L.  A BCN for his bonus was validated and approved by the State Incentives Manager at the time who is currently incarcerated for incentives fraud. The BCN was annotated on the applicant's DD Form 1966.  He received a payment of $10,000.00 on 1 December 2009, but never received the second payment of $10,000.00.  Although otherwise eligible to contract for this incentive per Education and Incentives Operational Message (EIOM) 09-020, there is no written agreement on file in the Interactive Personnel Electronic Records Management System (iPERMS).

8.  In connection with the processing of this case, on 14 November 2014, an advisory opinion was obtained from the Deputy, Personnel Policy Division, National Guard Bureau (NGB) who recommended approval of the applicant's request.  The advisory official stated:

   a.  On 14 January 2009, the applicant enlisted NPS into the CAARNG.  A BCN E09010029CA was validated and approved by the State Incentives Manager on 25 January 2009.  He received his first payment of $10,000.00 on 1 December 2009 but never received the second payment of $10,000.00 payment.  The applicant went through his chain-of-command in December 2010 inquiring about the second payment of his bonus, but was informed by his platoon leader that he would have to wait until his current enlistment was completed in January 2012.

   b.  The applicant acted in good faith and although there is a missing addendum, an approved BCN was validated and the first bonus payment was made.  The missing addendum is the fault of the State representative who failed to follow proper procedures.  The Office of the Under Secretary of Defense published a memo, dated 21 May 2008, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends.  This memo 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."
   
   c.  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 the contract and the terms of the contract should be upheld and relief from recoupment and second and final payment should be granted.

   d.  The ARNG Incentives Branch stated that the applicant did not complete the NPS incentive addendum which is required by the Department of Defense Instructions 1205.21.  Although the required BCN was approved on 
25 January 2009, after the date of enlistment (14 January 2009), there is substantiating information to support the incentive being offered, even though no addendum was executed.  The applicant completed all required training and 
was receiving language pay.  He was discharged for permanent disability on 29 December 2013.  In conclusion, the Soldier was eligible for the incentive and would have been entitled to the second and final payment.  If the Soldier is granted relief and payment authorized, there would be no recoupment based upon the type of separation the Soldier received.

9.  On 23 July 2013, he was provided a copy of this advisory opinion, but he did not respond. 

10.  National Guard Regulation 600-7 (Selective Reserve Incentive Programs), chapter 2, paragraph 2-3, provides that a person is eligible for an NPSEB if they meet the following requirements:

* contract for a term of 8 years (6 years must be in the ARNG)
* meet eligibility requirement for enlistment as an NPSEB applicant 
* enlist for assignment to a vacant position
* meet the educational requirements
* has an Armed Forces qualification test score of 31 or higher
* is not enlisting for a MilTech position
* completes the NGB Form 600-7-1-R-E (Annex E to DD Form 4 NPSEB Addendum ARNG)
* only contracts for one bonus at a time

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the CAARNG in good faith for a period of 8 years with the expectation of a $20,000.00 enlistment bonus.  Although there is no copy of his bonus addendum, the NGB advisory official confirmed that the missing addendum was the fault of the State representative who failed to follow proper procedures.

2.  Evidence of record indicates he met the eligibility requirements and an approved BCN was validated and the first bonus payment of $10,000.000 was made on 1 December 2009, but he never received the second payment.  Further, had it not been for the missing addendum, the applicant would have received his second payment.  In view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's record to show he signed a bonus addendum authorizing him a NPSEB 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 that the evidence presented was 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 showing that on 14 January 2009 he completed an addendum authorizing him a $20,000.00 NPSEB; the document was assigned a bonus control number and it was properly signed by all required officials; paying him the second half of the NPSEB in the amount of $10,000.00; and terminating any recoupment action being considered.



      ____________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)                                         AR20140003277





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ABCMR Record of Proceedings (cont)                                         AR20140003277



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