IN THE CASE OF:	 

		BOARD DATE:	19 March 2015

		DOCKET NUMBER:  AR20140008836 


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 relief from recoupment of her Non-Prior Service Enlistment Bonus (NPSEB) payment.

2.  The applicant states her incentive was erroneously terminated with recoupment.  Per the termination without recoupment rules stated on her bonus contract, her incentive should have been terminated without recoupment effective 22 September 2009 because she had served more than one year before contracting for participation in the Simultaneous Membership Program (SMP) with the Reserve Officers' Training Corps (ROTC) on that date.

3.  She provides:

* Texas Military Forces, Army National Guard (ARNG), Adjutant General's Department, Orders 139-1104, dated 19 May 2009
* Texas Military Forces, ARNG, Adjutant General's Department, Orders 022-085, dated 22 January 2014
* a self-authored statement

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Texas ARNG (TXARNG) on 28 March 2008 for a period of 8 years.

3.  In connection with the applicant's enlistment, she and her recruiter signed a National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E (NPS Enlistment Bonus Addendum) to her DD Form 4 (Enlistment/Reenlistment Document)).  This form shows in:

	a.  Section II (Eligibility), paragraph 7, the entry "I am enlisting into a NON-CRITICAL SKILL MOS (military occupational specialty) under the 6x2 or 8x0 enlistment option and will receive a NPS Critical Skill Bonus (50/50 payment)."

	b.  Section III (Payments):

		(1)  paragraph 1, the entry "I will receive a total bonus of $20,000.00 for the enlistment bonus option above, less taxes."

		(2)  paragraph 2, the entry "I will receive my first bonus payment of 50% of the total authorized amount entered above, less taxes, when I complete IADT (Initial active duty training), and I am awarded the MOS for which I enlisted."

		(3)  paragraph 3, the entry "The second and final payment of 50% will be paid on the 36th-month anniversary of my date of enlistment."

	c.  Section V (Termination Without Recoupment), "I understand that I will be terminated from bonus eligibility, without recoupment, if I...(paragraph 4)
Become a participant in the SMP/ROTC advance course or receive an ROTC scholarship and have served more than one year of the enlisted incentive contract term."

4.  The applicant completed IADT, was awarded her contracted MOS and was paid the initial 50% of her contracted NPSEB.

5.  Texas Military Forces, ARNG, Adjutant General's Department, Orders 139-1104, dated 19 May 2009, as amended by Orders 022-085, dated 22 January 2014, show the applicant was released from her initial unit of assignment (349th Adjutant General Detachment, also known as 349th Personnel Services Detachment) and transferred to another unit, effective 3 April 2009, as a result of the "INACTIVATION, REORGANIZATION OR RELOCATION" of her unit.

6.  The applicant's record contains a DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract) which shows that on 22 September 2009, the applicant's enrollment as an ROTC nonscholarship cadet was confirmed with an effective date of 31 August 2009.  Her education commenced on 31 August 2009 and was scheduled to be completed on 15 May 2011.

7.  Texas Military Forces, TXARNG, Permanent order 316-1131, dated 12 November 2009, shows the 349th Personnel Service Detachment was inactivated effective 1 September 2009.

8.  The applicant's record contains an NGB 594-1 (Annex B DD Form 4/DA Form 4836 ARNG SMP Agreement), dated 8 December 2009, which shows she amended her previous enlistment agreement in order to remain a member of the ARNG while participating in the ROTC program.  Paragraph 4 of the document contains the following statement:  “As a current ARNG member, my original enlistment/reenlistment agreement is to be held in abeyance in order that I may participate in the SMP.  As a participant in the SMP, I understand that upon acceptance into SMP, I am not eligible to continue in the ARNG Incentive Program.  I will not be entitled to further incentive payments.  Acceptance into the SMP does not constitute a condition where recoupment of incentive payments is required.”

9.  On 3 July 2014, the Officer in Charge (OIC), Education and Incentives, Texas Military Forces, Joint Force Headquarters, Texas Military Department, rendered a memorandum wherein she recommended granting the applicant relief from recoupment and reimbursement of any funds already recouped.  The OIC stated that the applicant's bonus contract was incorrectly terminated with recoupment based on her transfer out of her contracted MOS because the assign/loss reason [on her orders] was due to individual's request.  The assign/loss reason should have been due to reorganization, and the order was amended on 22 January with the correct assign/loss reason.  After serving more than one year on the bonus contract, the applicant became a contracted ROTC cadet, which requires termination without recoupment in accordance with Incentive Policy Number 07-06 for fiscal year (FY) 2007 (10 August 2007 through 31 March 2008).




10.  During the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion, dated 11 July 2014.  The advisory official recommended granting the applicant relief from recoupment of her NPSEB based upon the following rationale:

	a.  The applicant contracted for an NPSEB on 28 March 2008 in the TXARNG.

	b.  Her unit was deactivated on 1 September 2009 and she was transferred out of the contracted slot.  Her transfer orders initially indicated it was due to the individual's request, but were later amended to reflect unit deactivation.  A voluntary transfer would result in termination with recoupment, in accordance with the terms of her NPSEB contract addendum and NGR Regulation 600-7 (Selected Reserve Incentive Programs (SRIP)).

	c.  The applicant entered the SMP and ROTC status on 22 September 2009.

	d.  Section V, paragraph 4 of the applicant's contract addendum for the NPSEB states the bonus is terminated without recoupment if the Soldier becomes "A participant in the SMP/ROTC advanced course or receives an ROTC scholarship and has served more than one year of the enlisted incentive contract term."  The applicant served approximately one and a half years of her enlisted contract prior to entering the SMP/ROTC program.

	e.  The ARNG SRIP Guidance for FY 2007, 2008, 2009, 10 August 2007 through 30 September 2009, Policy Number 07-06, paragraph 15b, states termination without recoupment occurs when a Soldier "serves more than one year of an enlisted incentive contract term (contract term starts the date the initial payment of the bonus is authorized) before accepting a commission as an officer, appointment as a warrant officer, becoming a contracted ROTC Cadet in the SMP, or accepting any ROTC scholarship.  Termination is effective the date of acceptance of commission or appointment, the ROTC contract effective date for SMP participants or the college class start."

	f.  In accordance with her contract, the applicant received 50% of the bonus (less taxes) upon reenlistment and was to receive the second 50% after 36 months.  The [first] 50% of the bonus received should not be recouped in accordance with the contract and applicable SRIP.

	g.  The TXARNG concurs with this recommendation.


11.  The applicant was provided an opportunity to respond to the advisory opinion, but she did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the TXARNG for a $20,000.00 noncritical MOS NPSEB on 28 March 2008.  

2.  Evidence of record clearly shows that SRIP policy and the terms of the applicant's contract provide that the applicant would be terminated from bonus eligibility without recoupment if she became a participant in the SMP/ROTC advance course or received an ROTC scholarship and had served more than one year of the enlisted incentive contract term.

3.  On 3 April 2009, more than a year subsequent to her enlistment, she was transferred to another unit as part of the drawdown of her original unit prior to its inactivation effective 1 September 2009.

4.  On 22 September 2009, the applicant's enrollment as an ROTC nonscholarship cadet was confirmed with an effective date of 31 August 2009 which coincided with the commencement of her education.

5.  Evidence shows the applicant fulfilled her contractual agreement by completing IADT, being awarded the appropriate MOS, and serving more than one year of her enlistment prior to becoming a member of the SMP/ROTC program effective 31 August 2009.

4.  In view of the foregoing, the applicant's eligibility for the NPSEB should have been terminated without recoupment effective 30 August 2009 and she should be reimbursed any previously recouped portion of the bonus.

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 Army National Guard records of the individual concerned be corrected by:

	a.  showing her entitlement to the NPSEB was terminated effective 30 August 2009;

	b.  cancelling any action to recoup her previously paid NPSEB; and

	c.  repaying her any portion of the NPSEB that may have already been recouped.



      ___________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)                                         AR20140008836





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ABCMR Record of Proceedings (cont)                                         AR20140008836



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