IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140008397 


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 Wisconsin Army National Guard (WIARNG) on 16 February 2007.

2.  The applicant states, in effect:

	a.  He requested an exception to policy (ETP) for his Selected Reserve incentives contract, but it was denied.

	b.  His records were in error because his prior unit entered the incorrect attendance codes.  However, these attendance codes were subsequently corrected from unexcused absences to excused absences.

	c.  He was told his ETP was denied because his $15,000.00 debt was established before the attendance codes were corrected.

3.  The applicant provides:

* ETP denial letter
* memorandum from his commander, dated 9 September 2013
* Military Pay Voucher
* letter from a Member of Congress, dated 17 December 2014



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the WIARNG on 16 February 2007 for 8 years.  His NPSEB Addendum shows he enlisted for military occupational specialty (MOS) 19D (cavalry scout) and a bonus in the amount of $15,000.00.  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 (IADT) and the second and final payment of 50 percent would be paid on the 36-month anniversary of his date of enlistment.

2.  Section V (Termination) of this addendum states, "I understand that I will be terminated from bonus eligibility with recoupment if I become an unsatisfactory participant by accumulating 9 unexcused absences within a 12-month period effective on the date of the 9th unexcused absence."

3.  He completed IADT on 19 February 2009 and was awarded primary MOS 19D.  He was promoted to specialist effective 7 April 2010.

4.  He provided a Military Pay Voucher, dated 18 November 2011, which shows 12 unexcused unit training assemblies during the period 31 July 2010 to 12 September 2010 were excused by the applicant's commander due to hardship.

5.  He was honorably discharged from the WIARNG on 15 February 2013 and assigned to the U.S. Army Reserve Control Group (Annual Training).

6.  He provided a memorandum from his commanding officer, dated 9 September 2013, subject:  Request for ETP, which states:

	a.  The purpose of this memorandum is to request an ETP.

	b.  The applicant was coded as absent without leave (AWOL) on the original DA Form 1379 (U.S. Army Reserve Components Unit Record of Reserve Training), but on 18 November 2011 a pay code correction was sent to the Military Pay Office changing the code from an unexcused absence code of "U" to an excused absence code of "A" due to hardship.

7.  He provided a memorandum from the National Guard Bureau, dated 11 April 2014, subject:  Second Review Request for ETP for NPSEB (Applicant), which states:

	a.  An ETP request to retain the $15,000.00 NPSEB is denied.

	b.  The applicant had nine or more periods of unsatisfactory service which violates ARNG Selective Reserve Incentive Program (SRIP) Policy Number 
07-04.

	c.  The applicant did not complete MOS training within the required time which violates Title 10, U.S. Code, section 10105.

	d.  The applicant was not serving in the MOS for which he contracted which violates ARNG SRIP Policy Number 07-04.  His current MOS is 11B (infantryman).

	e.  The Department of the Army memorandum, dated 24 March 2014, for approval of the 24-month training requirement violation is approved and enclosed in the applicant's ETP record (this memorandum is not available).  The change in MOS is based on unit reorganization which does not violate the terms of the incentive.

	f.  Although the applicant's attendance record was corrected, the ETP was requested after the debt was established with the Defense Finance and Accounting Service (DFAS).  Since the debt has been established, the ARNG no longer has the authority to release the debt.

8.  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.

9.  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 NPSEB.

2.  The evidence confirms he enlisted in the WIARNG on 16 February 2007 for an NPSEB in the amount of $15,000.00.

3.  The evidence shows the request for ETP to retain the NPSEB was denied for the following reasons:

* the applicant had nine or more periods of unsatisfactory service
* he did not complete MOS training within the required time
* he was not serving in the MOS for which he contracted

4.  The evidence of record also shows:

	a.  the applicant's attendance record was corrected in 2011 to show his unexcused absences in 2010 were excused;

	b.  the 24-month training requirement violation was approved by the Department of the Army on 24 March 2014 (this memorandum is not available); and

	c.  the change in MOS was based on unit reorganization and did not violate the terms of the incentive.

5.  Based on the foregoing evidence, it appears he was eligible for the NPSEB bonus.  Therefore, 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 $15,000.00.



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 ETP to retain the NPSEB in the amount of $15,000.00; and

	b.  paying him any portion of the NPSEB not already paid up to the amount of $15,000.00.



      _____________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)                                         AR20140008397



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ABCMR Record of Proceedings (cont)                                         AR20140008397



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