IN THE CASE OF: 

		BOARD DATE: 23 April 2015

		DOCKET NUMBER:  AR20140014641 


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 qualified to retain the Reenlistment/Extension Bonus (REB) he contracted for with the North Dakota Army National Guard (NDARNG) and any monies recouped be returned to him.

2.  The applicant states that:

	a.  He would like to have the board reconsider his bonus recoupment based on his financial situation and hardships endured.  He has provided a sworn statement that explains his circumstances.

	b.  He lost his house in the massive flood in North Dakota in 2011.  His unit gave him the choice to go into the Inactive National Guard (ING) to deal with these matters and try to find a place for his pregnant wife and him to live. 

	c.  He was counseled at the time regarding his bonus, but he was under extreme duress at the time and does not remember this counseling.  He was later told by his unit that he needed to return to drilling status or he would lose the bonus.  He returned to drilling status immediately, and thought that everything was taken care of.  He was not counseled upon returning to drilling status to inform him that his contract had been broken.

	d.  He is in a very tough financial situation.  During the flood, his wife lost her job because they had to move.  With losing her job, they lost her healthcare and she gave birth to their son without insurance.  He has been working on paying back $35,000 of medical bills for the birth of their son in addition to losing their house in the flood.  They have many thousands of dollars of bills to pay, and this recoupment is adding even more to the burden.  He tried everything in his power to fulfill his contract.

3.  The applicant provides a DA Form 2823 (Sworn Statement), dated 
25 September 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NDARNG on 30 November 2001.  

2.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 
14 June 2007, shows he extended his original enlistment for a period of 6 years.

3.  An NGB Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus Addendum) completed in conjunction with his service extension shows he agreed:

	a.  He would receive a bonus of $15,000 less taxes for a 6-year extension to be paid in lump sum.

	b.  That he would be suspended for bonus eligibility if he entered a period of non-availability (placement in the ING).  Maximum periods of non-availability are: one year for personal reasons and three years for missionary reasons.

	c.  That he would be terminated from bonus eligibility with recoupment if he failed to extend within 30-days of his return to active status for any time in the ING or exceeded the maximum time in the ING.

4.  Orders show he was transferred to the ING from 22 August 2011 to 1 January 2013 (1 year, 4 months, and 10 days).

5.  On 13 May 2014, the Deputy G1, Army National Guard, NGB, denied the applicant's request for an ETP to retain the $15,000 bonus with recoupment.  The denial official states that the applicant exceeded the authorized period of non-availability within the required time period upon returning to an active status.  He was in the ING 1 year, 4 months, and 22 days.  He returned to active drilling status 1 January 2013.  He separated from the NDARNG on 29 November 2013 and he did not extend for the time in the ING.


6.  In support of his request, he provides a sworn statement in which he states:

	a.  In August 2011, his unit offered to transfer him into the ING because he was dealing with personal issues stemming from losing his home in Minot, North Dakota, due to the flood of 2011.

	b.  He was counseled on 29 July 2011 regarding entering the ING and the effects it would have on his bonus.  Due to the high levels of stress he was under at the time he did not remember the counseling.  He was focused on trying to find a place for his family to live as his spouse was pregnant.

	c.  When he received notice from his unit that he needed to return to active drilling status or face bonus recoupment, he agreed to immediately return.  On 
1 January 2013, he returned to duty with the 191st Military Police Company.  He was under the impression that everything was in order and the situation was remedied.  He was not informed that he had violated his contract or forfeited his bonus.  He was not counseled upon his return to drilling status.

	d.  On 24 September 2013, he learned that his bonus was being recouped, starting back to 22 August 2011 due to breach of contract.

	e.  He returned to drilling status with the goal of retaining his bonus and fulfilling his contract.  If he had been informed that his bonus was already forfeited he would have chosen to stay in the ING. 

	f.  He is already in a tough financial situation due to the loss of his house.  He loses money every time he attends drill or annual training due to the travel costs and lower amount he makes from drill compared to his civilian employment.  He has still performed his duties, and he felt obliged to fulfill his contract even though he was unaware that the contract had already been violated and his bonus forfeited.

	g.  He feels his bonus should not be recouped, or at least only recouped for the period he spent in the ING.  He fulfilled the last part of his contract and should not lose that portion of the bonus. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bonus recoupment based on his financial situation and hardships endured should be stopped and he should be allowed to retain the $15,000 REB.

2.  The available evidence clearly shows that the applicant extended his service in the NDARNG on 14 June 2007 or a period of 6 years and completed the bonus addendum that day.  He was transferred to the ING for a period of 1 year, 4 months, and 10 days and then returned to his active drilling unit.

3.  In the bonus addendum he agreed that he would be suspended for bonus eligibility if he entered a period of non-availability (placement in the ING).  Maximum periods of non-availability are one year for personal reasons and three years for missionary reasons.  He also indicated he understood that he would be terminated from bonus eligibility with recoupment if he failed to extend within 30 days of his return to active status for any time in the ING or exceeded the maximum time in the ING.

4.  There is no evidence the applicant requested to extend his service for the period he was in the ING.  As a result, he was no longer authorized or entitled to the bonus.  He did not fulfill the contractual obligation he agreed to. 

5.  In view of the above, his request should be denied.

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)                                         AR20130013837



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ABCMR Record of Proceedings (cont)                                         AR20140014641



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