BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20140003377 


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 his entitlement to a $7,500.00 Prior Service Enlistment Bonus (PSEB) vice a $10,000.00 Enlistment Affiliation Bonus (EAFB) and cancellation of the recoupment payment of $3,750.00.  He also requests the hold placed on his 2011 reenlistment bonus be released.

2.  He states:

   a.  On 12 February 2007, he signed a 3-year enlistment with the California Army National Guard (CAARNG) subsequent to signing a $10,000.00 EAFB addendum.  At the time of signing the addendum, his recruiter assured him and he believed that he was fully eligible to receive the bonus.  Even if he was not eligible to receive the EAFB, he would have been eligible to receive a $7,500 PSEB.
   
   b.  At the time of his enlistment in the CAARNG from the Individual Ready Reserve (IRR), he still had almost 20 months remaining on his first enlistment contract with the Army Reserve.  He was still eligible for a PSEB because he enlisted in a valid and vacant position.  Additionally, he had less than 16 years of total military service.  However, the CAARNG Incentive Task Force (ITF) challenged his eligibility for the PSEB on the basis that he did not receive an honorable discharge from the U.S. Army Reserve (USAR) prior to enlisting in the ARNG.
   
   c.  The ITF assertion is incorrect and offers that he reenlisted in military occupational specialty (MOS) MOS 25Q (Multichannel Transmission Systems Operator-Maintainer), MOS position (Unit Identification Code X4EA2), and he was qualified as a 25Q on 21 May 2001.  He received an honorable discharge upon completion of all prior period of service.  The order that reassigned him to the IRR as an unsatisfactory participant was merely a reassignment and not a discharge order. 
   
   d.  He further states that on 8 September 2011 he signed an addendum to receive a reenlistment bonus in the amount of $15,000.00 for a 6-year enlistment in the CAARNG.  The ITF audited this bonus and found that he was eligible to receive the full amount of the bonus.  However, a hold was placed on that money due to an audit and the recoupment action is currently pending on his previous bonus.  Based on the Board's decision, he requests the release of the hold on his 2011 reenlistment bonus.  

3.  He provides:

* Memorandum, Subject:  Notification of Termination/Recoupment of Incentives, dated 4 October 2012
* ITF Bonus Audit Form
* Annex B to DD Form 4 (EAFB Addendum ARNG)
* Memorandum, Subject:  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 1 January 2007 to 31 March 2007 (Policy Number 07-04), dated 1 January 2007
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Annex A to DD Form 4 (Enlistment/Reenlistment Agreement - ARNG)
* Certificate of Graduation, dated 21 May 2001
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 0290-00013, dated 17 October 2002
* Orders C-04-709906, dated 4 April 2007
* Annex R to DD Form 4 or DA Form 4836 (Reenlistment/Extension Decentralized State Incentive Pilot Program Addendum ARNG)  
* Memorandum, Subject:  Army Board for Correction of Military Records (ABCMR) Appeal for Applicant, dated 9 January 2014 
* Email
* Excerpts from National Guard Regulation 600-7 (SRIP), Army Regulation  135-178 (ARNG and Army Reserve - Enlisted Administrative Separations) and Title 10, U.S. Code, section 2774

CONSIDERATION OF EVIDENCE:

1.  On 12 October 2000, the applicant enlisted in the USAR for a period of 
8 years.  He was subsequently ordered to active duty for training where he was awarded MOS 31R (Multichannel Transmission System Operator Maintainer) on 21 May 2005.  This MOS was later re-designated as 25Q.  He was honorably released from active duty that same day and reassigned to his Reserve unit.

2.  Orders 02-290-0013, dated 17 October 2002, reassigned him from 
A Company, Signal Telecommunication, 319th Signal Communications Battalion to the USAR Control Group (Reinforcement) effective that same day for "Unsatisfactory Participation."  His record is void a discharge order or any documentation that address his character of service. 

3.  On 12 February 2007, the applicant enlisted in the CAARNG for a period of 
3 years.  In conjunction with this enlistment, he completed Annex A and B to 
DD Form 4 which show in:

   a.  Annex A Section III (Explanation to Applicant) he initialed the block that stated "Enlistment/reenlistment of a prior service member with a remaining statutory military service obligation.  I am currently a member of another Armed Force of the United States, or a member of the USAR and I have been granted a conditional release to permit enlistment in the ARNG. .  . ."  "I understand that I will undergo training in primary MOS 25Q."  “I have satisfactorily completed a term of enlistment or a contractual active duty obligation of not less than 2 years.”
   
	b.  Annex B:

		(1)  Section IV (Payments), paragraph 1, the entry "For a 3-year enlistment I will receive a total affiliation bonus in the amount of $10,000.00 to be paid in two 50 percent (%) installments of $5,000.00 less taxes.  The first 50% installment will be processed for payment upon accession into the ARNG.  The second and final 50% installment will be processed for payment on the 36-month anniversary of the date of enlistment." 

		(2)  Section VIII (Statement of Understanding), is authenticated by the signature of the applicant on 12 February 2007.

		(3)  Section IX (Certification by Service Representative) is authenticated by the signature of the enlisting official on 12 February 2007.  A Bonus Control Number (BCN) is not listed.

4.  Orders C-04-709906, dated 4 April 2007, show the applicant was released from the USAR Control Group (Reinforcement) and assigned to the CAARNG. The effective date is listed as 12 February 2007. 

5.  On 8 September 2011, the applicant extended his enlistment in the CAARNG for a period of 6 years.  In conjunction with this reenlistment/extension, he completed Annex R to DD Form 4 which shows he was reenlisting/extending for 6 years and would receive a total bonus payment of $15,000.00.

6.  On 4 October 2012, the applicant was notified of the termination/recoupment of his incentive in the amount of $3,750.00.  The reason cited was listed as the payment was made in violation of federal laws and National Guard Bureau (NGB) policy.

7.  The ITF Bonus Audit Form, dated 19 October 2012, shows that the applicant was not eligible for either the EAFB or the PSEB when he enlisted in the CAARNG on 12 February 2007.  However, there is no information concerning an audit being conducted on his 8 September 2011 contract or documentation indicating that the bonus amount of $15,000.00 is being held pending the outcome of his previous enlistment contract audit.

8.  In a memorandum, Subject:  ABCMR Appeal for Applicant, dated 9 January 2014, the Commander, Soldier Incentives Assistance Center (SIAC), stated the applicant's records were audited and it was discovered that he was not eligible to contract for or receive payment on the EAFB he contracted for on 12 February 2007.  The memorandum stated:

* There is no evidence of fraud on the part of the applicant
* The applicant enlisted in the CAARNG for 3 years as an E-1 in a valid UIC in MOS 25Q for $10,000.00 paid in two installments of $5,000.00 each
* The State Incentive Manager (IM) at the time (currently incarcerated for incentives fraud) initiated termination of the applicant's EAFB on 19 April 2007
* The same day, the IM requested a PSEB BCN
* On 23 May 2007, the applicant was paid a $3,750 PSEB without a contract
* The second bonus payment scheduled for 12 February 2010 was not processed due to a lack of a PSEB addendum in the applicant's record
* The applicant was fully eligible to contract for a $7,500 PSEB at the time of his enlistment on 12 February 2007


9.  During the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB.  This official recommended partial approval of the applicant's request.  He recommended that the applicant receive  relief from the recoupment of $3,750 and he be denied the additional bonus payment.  The advisory opinion further stated:

* The applicant enlisted in the CAARNG on 12 February 2007 and he signed a $10,000.00 EAFB addendum
* He was not eligible to receive the bonus because he did not transition from active duty and had not satisfactorily completed all terms of service
* The State IM terminated his EAFB contract on 19 April 2007 and he was erroneously paid $3,750.00 as a PSEB without a contract
* As of 3 January 2014, the applicant has repaid $788.55
* The applicant did not meet all the requirements for a PSEB when he enlisted on 12 February 2007
* ARNG SRIP Guidance states Soldiers are eligible for a PSEB if they have received an honorable discharge upon completion of all periods of service
* On 17 October 2002, the applicant was discharged from the USAR due to being an unsatisfactory participant
* In accordance with Army Regulation 135-185 (Enlisted Administration  Separations) a discharge for unsatisfactory participation is normally characterized as under other than honorable conditions

10.  On 12 March 2014, the applicant responded to the NGB advisory opinion.  He said he agreed with NGB's recommendation to cancel the recoupment of his debt of "$3,500.00" (i.e., $3,750.00).  However, he disagreed with their recommendation to deny him the additional payment on the grounds that he was not eligible to receive the PSEB because he did not receive an honorable discharge.  He reiterates his reasons as cited in his application to the Board and stated that his actual discharge date was 12 February 2007, the date he enlisted in the CAARNG.  Based on this information, he was fully eligible to receive the PSEB at the time of his enlistment in the CAARNG.

11.  ARNG SRIP Guidance for FY2007, 16 June 2007- 31 March 2008 (Policy Number 07-05) (Revised 19 June 2007) states the ARNG offers a PSEB to PS Soldiers who meet the following eligibility requirements:

* Enlist for either 3 or 6 years
* MOS qualified for the position for which enlisting or enlist into a NGB "Top Ten" or State Critical Skill MOS and complete MOS training within 24-months of the date of enlistment
* 
Enlist into a valid, vacant position, or against a projected vacancy within 101% - 125% of the unit's authorized war time strength
* Have not more than 16 years of total military service
* Have received an honorable discharge upon completion of all prior periods of service
* Not enlisting for the purpose of qualifying for employment in a Military Technician or Active Guard Reserve position
* Soldiers who have previously received a Selected Reserve Enlistment, Re-enlistment, or EAFB may now receive the PSEB
* Soldiers with a remaining Military Service Obligation may be authorized to receive the PSEB

12.  ARNG FY2007 MOS List (1 January 2007 - 31 March 2007) lists 25Q as one of the CAARNG Critical Skills MOS. 

13.  Army Regulation 135-178 states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant. Characterization of service normally will be under other than honorable conditions, but a characterization as general (under honorable conditions) may be warranted.

14.  Title 37, U.S. Code, section 373(b) states that pursuant to the regulations prescribed to administer this section, the Secretary concerned may grant an exception to the repayment requirement and requirement to terminate the payment of unpaid amounts of a bonus, incentive pay, or similar benefit if the Secretary concerned determines that the imposition of the repayment and termination requirements with regard to a member of the uniformed services would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States. 

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the recommendation by NGB, the evidence of record shows the applicant was reassigned from Company A, Signal Telecommunication, 319th Signal Communications Battalion to the USAR Control Group (Reinforcement) on 17 October 2002, for "Unsatisfactory Participation."  The regulation stated a member was subject to discharge; it did not require discharge 

and the applicant was not discharged.  Therefore, this period of the applicant's service in the RC is considered honorable for purpose of this Record of Proceedings.

2.  The evidence further shows that he was not eligible for a $10,000.00 EAFB, and he did not meet the requirements for a $7,500.00 PSEB (he had not completed 2 years of active duty or his term of enlistment).  Further, he never signed a contract for the bonus.  Nevertheless, as a matter of equity and in the interest of justice it would be appropriate to cancel any further recoupment of any amount of the PSEB he has already been paid ($3,750.00) under the provisions of Title 37, U.S. Code, section 373(b).  However, no additional payments of either an EAFB or a PSEB should be authorized.

3.  In reference to removing the hold on his 2011 reenlistment bonus, there is no evidence and he has not provided any to show that a hold was placed on his reenlistment bonus as annotated on his 2011 reenlistment contract.  Further, there is no evidence and he has not provided any to show the ITF conducted an audit on his 2011 reenlistment bonus and determined that he was fully eligible to receive the full amount of that bonus.  Therefore, in absence of documentation to verify his claim, there is an insufficient basis to grant his requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X______  __X______  _X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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, as a matter of equity, by showing the California Army National Guard did not issue its 4 October 2012 memorandum to the applicant notifying him of termination and recoupment of the PSEB paid to him ($3,750.00), in effect allowing him to retain any unrecouped portion the PSEB under the provisions of Title 37, U.S. Code, section 373(b).

2.  The Board further determined that the evidence presented was 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 authorizing him a $7,500.00 PSEB and releasing the hold placed on his 2011 reenlistment bonus.



      _______ _  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)                                         AR20140003377





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003377



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1