IN THE CASE OF:  

		BOARD DATE:  6 January 2015	  

		DOCKET NUMBER:  AR20140007178 


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 the action to recoup his enlistment bonus be stopped:

a. the $8,333.33 that has been recouped be refunded; and

b. the remaining amount $1,936.90 that is to be recouped be cancelled.  

2.  The applicant states he believes the recoupment is unjust.  He initially enlisted in the Kentucky Army National Guard (KYARNG) on 17 July 2007.  When he signed up for the Simultaneous Membership Program (SMP), his commander at the time counseled him with the National Guard Bureau (NGB) Form 594-1 (Annex X- SMP Agreement, ARNG).  This form clearly shows that while going through the SMP his bonus would be terminated but without recoupment.  Because of this counseling, he was unaware that his actions at the time would cause his bonus to be terminated with recoupment.  Additionally, he submitted an exception to policy to the NGB requesting to retain the incentive.  The NGB denied his request but ordered the incentive terminated without recoupment.  Unfortunately, officials at the Defense Finance and Accounting Service (DFAS) would not accept the exception to policy from the NGB.  He was a new Soldier and he did not know his rights.  He was denied due process in that DFAS never informed him of the debt or advised him of his options. 

3.  The applicant provides:

* NGB denial of exception to policy
* Exception to policy with chain of command recommendations
* NGB Form 594-1
* DD Form 4 (Enlistment/Reenlistment Agreement)
* Annex E to DD Form 4 (Non-Prior Service Enlistment Bonus Addendum, ARNG)

CONSIDERATION OF EVIDENCE:

1.  On 17 July 2007, the applicant enlisted in the KYARNG for training in military occupational specialty (MOS) 11B (Infantryman) and assignment to Company E, 1st Battalion, 149th Infantry.  

2.  In connection with this enlistment, he completed several forms as follows: 

	a.  Guard Annex, wherein he indicated he enlisted for a 6-year or 8-year troop program unit enlistment into the ARNG College First Program and would undergo training in MOS 11B.  There are three addenda attached to his enlistment:  Enlistment Bonus, Montgomery GI Bill Kicker, and Montgomery GI Bill. 

	b.  Annex E, wherein he indicated he was enlisting in the ARNG for 6 years and would serve in Unit Identification Code (UIC) WTT1E0, under the 6x2 enlistment option and he was eligible for a $20,000 Non-Prior Service Enlistment Bonus (NPSEB).  He agreed that his bonus would be paid at the rate of 50 percent upon completion of training and the remainder would be paid on the third anniversary of his enlistment.  He further indicated he understood his bonus would be:

* terminated without recoupment in the event he becomes a participant in the SMP/Reserve Officers' Training Corps (ROTC) advanced course or receives an ROTC scholarship and has served more than 1-year of the enlisted incentive contract term
* terminated with recoupment in the event he becomes a participant in the SMP/ROTC advanced course or receives an ROTC scholarship and has not served more than 1-year of the enlisted incentive contract term

3.  He entered active duty for training (ADT) on 28 August 2007 and successfully attended and completed training for MOS 11B.  He was honorably released from ADT on 12 December 2008.  

4.  On 14 February 2008, the applicant executed a DA Form 597 (Army Senior ROTC Non-Scholarship Cadet Contract).  He agreed to receive monthly pay subsistence allowance for participation in the non-scholarship program in exchange for his appointment as a Reserve commissioned officer of the Army upon satisfactory completion of this program. 
5.  On 17 May 2008, he executed an SMP Agreement in the ARNG.  He indicated that his enlistment in the ARNG is for the purpose of directly participating in the SMP.  He indicated he understood that as a current ARNG member, participating in the SMP, upon acceptance, he would not be eligible to continue in the ARNG Incentive program, he would not be entitled to further incentive payments, and that acceptance into the SMP does not constitute a condition where recoupment of incentive payment is required.  He and the Commander, E Company, 1st Battalion, 149th Infantry authenticated this agreement with their signatures. 

6.  On 6 November 2008, KYARNG published Orders 311-817 advancing him to sergeant/E-5 and authorizing him to wear the SMP insignia with the title of Cadet. 

7.  The applicant entered active duty on 1 June 2011 and he served in Kuwait/Iraq from 31 July to 8 December 2011.  He was honorably released from active duty on 5 January 2012.    

8.  It appears he submitted an exception to policy requesting no recoupment action be associated with his incentive termination:

	a.  On 6 February 2013, his squad leader submitted a memorandum to the Education, Incentives, and Employment Office, KYARNG, requesting the applicant's incentive be terminated without recoupment.  He pointed out the discrepancy between Annex E (terminate with recoupment) and the NGB Form 594-1 (acceptance in the SMP does not cause a condition where recoupment of incentive is required).  He also opined that the applicant was not advised of his rights or offered due process that is currently offered to Soldiers.  Finally, the recoupment action would cause financial hardship to him and his family.

	b.  On 18 February 2013, his immediate commander submitted a memorandum to the Education, Incentives, and Employment Office, KYARNG, regarding the termination of the incentive.  He stated the applicant did not receive clear guidance of the effects of the SMP agreement on his enlistment bonus.  He recently found out he should have been notified of the termination and given a chance to dispute it at the time.  Since he was not informed of this option at the time, he (the commander) opines the applicant is now entitled to due process and consideration of relief from recoupment.  Additionally, the recoupment action is causing financial hardship to him and his family.

	c.  On 23 April 2013, his battalion commander submitted a memorandum indicating his concurrence with the company commander's recommendation.  His SMP agreement states that he would not have to pay back any money.  At the time of his contract, he was not informed by his leaders that he would lose the enlistment bonus.  Additionally, at the time the recoupment began, he was told he could not appeal the decision.  Additionally, the recoupment action is causing financial hardship to him.

	d.  On 4 June 2013, his brigade commander also concurred with the exception to policy request.  He opined that the applicant was not counseled on the repercussions of going into the SMP.  He served for 10 months (2 months shy of the 1-year requirement) prior to signing the SMP contract.  His NGB Form 594-1 states acceptance into the SMP does not constitute a condition where recoupment of the incentive payment is required. 

	e.  On 24 June 2013, the KYARNG G-1 recommended approval.  He stated the applicant's bonus was terminated with recoupment in accordance with his bonus addendum.  However, he was never notified in advance nor was he given the opportunity for due process.  Additionally, the NGB Form 594-1 he signed clearly states his bonus will not be recouped based on contracting for the SMP.  The KYARNG recommends his bonus be terminated without recoupment and the amount of $8,333.33 be refunded. 

9.  On 23 September 2013, the NGB stated the applicant's entrance into the SMP violated the Selected Reserve Incentive Program 07-05.  His exception to policy request to retain the $20,000 NPSEB was denied.  The State Incentive Manager would terminate the incentive without recoupment.

10.  NGB Policy Memorandum Number 07-06, dated 10 August 2007, subject:  SRIP Guidance for Fiscal Year 2007, 10 August 2007 to 31 March 2008, with updates provides for various enlisted and officer bonus incentives. 

11.  Army Regulation 135-7 (Incentive Programs) establishes a single reference for incentives authorized within the ARNG and U.S. Army Reserve.  Paragraph 
1-7 states that Selected Reserve incentives will be offered in designated units and selected skills only when a valid position vacancy exists and the specialty is designated as a critical specialty by the Department of the Army. 

12.  Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentives Program Procedures) states the PSEB is authorized and is offered to eligible members with the execution of an agreement.  

	a.  Paragraph 6.8. Termination and Recoupment.  If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date.  Unless granted relief, as covered in paragraphs 6.6. and 6.7., the member must refund a prorated amount to the Government, if such termination is for any of selected reasons (none applies to the applicant). 

	b.  Paragraph 6.9. 6.9. Exceptions to Recoupment. Recoupment is not required in certain circumstances when an incentive is terminated.  Sub-paragraph 6.9.2, when a member becomes a simultaneous member of an authorized officer commissioning program or accepts an immediate appointment as an officer in a Reserve component, and, in either case, has served more than 1 year of the incentive contract term following receipt of the initial incentive payment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the KYARNG on 17 July 2007 under the 6x2 option.  He agreed to train in MOS 11B and serve with E Company, 1st Battalion, 149th Infantry (UIC: WTT1BO).  He agreed to serve for 6 years in the critical MOS of 11B and in the infantry unit in exchange for a $20,000 enlistment bonus to be paid in two installments, the first upon completion of training and the second on the 36th month anniversary of his enlistment.  

2.  His bonus addendum stipulated that his bonus would be terminated without recoupment in the event he becomes a participant in the SMP/ROTC advanced course or receives an ROTC scholarship and has served more than 1-year of the enlisted incentive contract term and terminated with recoupment in the event he becomes a participant in the SMP/ROTC advanced course or receives an ROTC scholarship and has not served more than 1-year of the enlisted incentive contract term.

3.  Seven months into his contract, on 14 February 2008, he signed an Army Senior ROTC Non-scholarship Contract.  He agreed to receive monthly monetary benefits in exchange for his appointment as a Reserve commissioned officer upon satisfactory completion of academic, military, and other requirements.  Additionally, ten months into his contract, on 17 May 2008, he signed an Annex F (SMP Agreement).  

4.  By signing the SMP contract, the applicant breached his contract.  By signing the SMP contract, the applicant clearly indicated he had no intention of serving his 6-year contractual agreement.  As a result, he was no longer authorized or entitled to the incentive.  He did not fulfill the contractual obligation he agreed to.

5.  While it is true that the language in the SMP contract appears to contradict that on his bonus addendum, whenever there is a contradiction in the governing regulation, the higher regulation is consulted.  DODI states when a member becomes a simultaneous member of an authorized officer commissioning program and has served more than 1 year of the incentive contract term following receipt of the initial incentive payment, recoupment is not required.  Unfortunately, this is not the case here.  The applicant is not entitled to the requested relief. 

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)                                         AR20140007178



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ABCMR Record of Proceedings (cont)                                         AR20140007178



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