IN THE CASE OF:  	  

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140014788 


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 as an exception to policy (ETP) that he be allowed to retain entitlement to a $10,000 Reenlistment/Extension Bonus (REB) that he contracted for under the provisions of the Army National Guard (ARNG) Selected Reserve Incentives Program (SRIP) for Fiscal Year 2012 (FY12).

2.  The applicant states his request for an ETP to retain his REB was denied due to the fact that he took a State Wide Vacancy Announcement (SWVA) position which resulted in him transferring from military occupational specialty (MOS) 35F (Intelligence Analyst) to MOS 31B (Military Police).  He received an email from the office of the State's Deputy Chief of Staff, Personnel which stated that he had applied for and been selected for a statewide vacancy announcement position and that he would need to meet certain criteria in order to be fully qualified for the position; to include completing the appropriate Noncommissioned Officer Education System (NCOES) course and becoming MOS qualified (MOSQ) in MOS 31B.  He reenlisted 2 months later with the intention of fulfilling the 31B obligation.  He was MOSQ for 31B within a year and 6 months later attended the 31B Advanced Leader Course (ALC).  The applicant feels the MOS information in his reenlistment contract was entered incorrectly for his intended career course.  He is not sure how the contract process works or what information is available.  He feels this was an oversight by both himself and the contracting person.




3.  The applicant provides:

	a.  email correspondence;

	b.  NGB Form 600-7-3-R-E-DSIPP (Annex R to DD Form 4 or DA Form 4836 – Reenlistment/Extension Decentralized State Incentive Pilot Program (DSIPP) Addendum ARNG of the United States);

	c.  Certificate of Completion for the 31B Basic Military Police Course;

	d.  Diploma issued to him upon graduation from the 31B Military Police ALC;

	e.  a memorandum showing the National Guard Bureau (NGB) denial of his request for an ETP; and

	f.  a memorandum rendered by Incentive Manager, Michigan National Guard Joint Force Headquarters, Recruiting and Retention, Lansing, MI.

CONSIDERATION OF EVIDENCE:

1.  Following a 3-year period of enlisted service in the Regular Army, the applicant enlisted in the Michigan Army National Guard (MIARNG) on 20 March 2009 for a period of 3 years and MOS 35F.  Upon completion of training, he was awarded MOS 35F effective 23 March 2010.  He was promoted to the rank/pay grade of staff sergeant/E-6 effective 12 July 2012.

2.  The applicant was ordered to active duty in support of Operation Enduring Freedom on 16 October 2011 and deployed to Afghanistan on 2 February 2012.

3.  The applicant provides email correspondence which shows he applied for and was subsequently selected for a sergeant first class (SFC)/E-7, 31B, Law and Order NCO position in the 46th Military Police Command by a Statewide Vacancy Board.  The applicant was notified of his selection on 15 August 2012.  On 16 August 2012, it was stated that in order to be promoted to SFC/E-7 he would have to meet the following criteria:

* Obtain an updated Physical Health Assessment
* Meet Time in Grade requirements
* Complete NCOES
* Become MOSQ
* Obtain Enlisted Promotion List (EPL) status

4.   The applicant accepted the offer and was personally advised of the aforementioned criteria for promotion to SFC/E-7 after occupying this position.

5.  State of Michigan, Department of Military and Veterans Affairs, Orders 229-033, dated 16 August 2012, show the applicant was relieved from an Intelligence Analyst, 35F duty position and reassigned to the Law and Order NCO, 31B position effective 16 August 2012.  The reason for reassignment was due to SWVA for a higher graded position.

6.  The applicant redeployed from Afghanistan on 20 September 2012 and was released from active duty on 21 October 2012.  His annual DA Form 2166-8 (NCO Evaluation Report (NCOER)) for the period 6 October 2011 through 4 October 2012 shows his primary MOS as 35F and his principal duty title as Intelligence Sergeant.

7.  His record contains a DA Form 4836 (Oath of Extension or Reenlistment) which shows on 16 October 2012, he reenlisted in the MIARNG for a period of 6 years. 

8.  His record contains (and he also provides) an NGB Form 600-7-3-R-E-DSIPP rendered in conjunction with his reenlistment on 16 October 2012.  This form shows the following pertinent information:

	a.  In Section II (Eligibility):

		(1)  paragraph 4, he acknowledged that he must reenlist/extend DMOSQ in an MOS within a Modified Table of Equipment or Medical Table of Distribution and Allowances unit only unless he was Non-DMOSQ due to unit transition only.

		(2)  paragraph 16b, he indicated he was reenlisting/extending DMOSQ in MOS 35F only for 6 years as the primary position holder in a rank and grade commensurate with this position.

	b.  Section III (Bonus Amount and Payments):

		(1)  paragraph 1b, he indicated he was reenlisting/extending for a period of 6 years to receive a total bonus payment of $10,000.  He also certified he was reenlisting DMOSQ or Non-DMOSQ (Due to mobilization/deployment, unit transition as the primary position holder and was not coded as either 9993 (Excess to authorized strength of unit) or 9994 (Excess due to reorganization).  The bonus would be paid in a lump sum and processed for payment the day after his current expiration term of service (At the time, his current ETS date was 19 August 2013).
		(2)  paragraph 3, he acknowledged his understanding that he would not receive payment if he did not meet all eligibility requirements on his contract start date (Day after his current ETS).

		(3)  paragraph 5, he indicated that he had read Section III and understood the contents thereof.

	c.  Section VI (Termination):

		(1)  paragraph 1b, he acknowledged he could be terminated from incentive eligibility with recoupment if he voluntarily changed his Reenlistment/Extension Bonus (REB) MOS during the contractual obligation unless assigned as an Officer Candidate School Candidate or Simultaneous Membership Program Cadet.  The termination date would be the date of transfer on his order.

		(2)  paragraph 1m(2), he acknowledged he could be terminated from incentive eligibility with recoupment if he voluntarily transferred within the state or Interstate Transfer out of his current REB MOS into a Non-DMOSQ MOS.  The termination date would be the date of transfer on his order.

		(3)  paragraph 2, he acknowledged his understanding that any other additional termination with recoupment condition that is not included in this addendum can be found in 601-210 (Active and Reserve Components Enlistment Program).

	d.  Section VII (Statement of Understanding), he indicated he had read this entire addendum and understood all of the above statements regarding his REB.
He also understood that this addendum would be void if he did not meet all of the requirements at the time of signature.  If his REB was terminated, recouped or depreciated, he understood that it did not affect the terms of his contractual agreement.  No other promises had been made to him in connection with this addendum.

9.  The applicant was ordered to Full Time National Guard Duty - Operational Support for the period 26 November 2012 - 30 September 2013.

10.  State of Michigan, Department of Military and Veterans Affairs, Orders 354-005, dated 19 December 2012, show the applicant was released from an Intelligence Analyst, 35F duty position and transferred to a Law and Order NCO, 31B position effective 19 December 2012.  The reason for transfer was due to his demobilization.  Orders 355-013 from the same authority amended the effective date to 14 January 2013.
11.  His record contains a DA Form 1059 (Service School Academic Report), dated 26 July 2013, which shows he completed Phase 1 of the Basic Military Police, 31B, Course from 12 to 26 July 2013.

12.  His record contains a DA Form 1059, dated 10 August 2013, which shows he completed Phase 2 of the Basic Military Police, 31B, course from 27 July to 10 August 2013.  He provides a copy of the Certificate of Completion issued to him to commemorate the Basic Military Police, 31B, Course.

13.  His record contains a DA Form 1059, dated 24 January 2014, which shows he completed Phase 1 of the Military Police ALC from 10 24 January 2014.

14.  His record contains a DA Form 1059, dated 7 February 2014, which shows he completed Phase 2 of the Military Police ALC from 24 January to 7 February 2014.  He provides a copy of the Certificate of Completion issued to him to commemorate the Basic Military Police, 31B, Course.

15.  On 24 July 2014, the Deputy G1, ARNG, NGB, informed the applicant's State Incentive Manager that his request to retain the $10,000 REB was denied and directed the State Incentive Manager to terminate the incentive with recoupment effective the date of transfer (19 December 2012).  The Deputy G1 stated the applicant was not serving in the MOS for which he contracted due to voluntarily accepting a promotion in MOS 31B which violates the career management field progression of Department of the Army Pamphlet 611-21 (MOS Smart Book).  On 25 July 2014, an incentive manager, MI National Guard Joint Force Headquarters, Recruiting and Retention Command, informed the applicant that his request for an ETP had been denied by NGB and provided him a copy of the correspondence.

16.  Army Regulation 135-7 (ARNG and Army Reserve - Incentive Programs) prescribes policies and procedures for the administration of the ARNG and the USAR incentive programs.  Incentives and entitlements prescribed by this regulation may specify that an applicant be in a non-prior service, prior service, or in service status.  They may also mandate the completion of specified initial entry training.  Soldiers will have their incentive eligibility and entitlement stopped when any of the termination reasons apply as listed within the applicable chapters of this regulation.  This regulation provides that various reenlistment bonuses are offered to Soldiers who meet several requirements, to include agreeing to serve in a critically short MOS.  Once being declared ineligible as a result of a voluntary action, termination of bonus will not affect a Soldier's responsibility to serve his or her current statutory or contractual service commitment.

17.  The Chief, Personnel Policy Division, NGB published ARNG-HRH Policy Memorandum Number 11-003 on 6 June 2011.  He stated this memorandum was created as clarifying guidance in response to reports from States that the provisions of AR 600-8-19 (Enlisted Promotions and Reductions), chapter 7, as currently written, sometimes result in the States being unable to fill a vacant position.  The SWVA program was developed to assist States with filling valid vacancies and to afford Soldiers an accelerated opportunity for promotion.  The regulation intended to provide for a fair, equitable, and orderly process for promotion of enlisted Soldiers and non-commissioned officers.  The regulation was never intended to provide an obstacle to filling positions.  Therefore, in order to ensure the operation of the regulatory provisions according to their spirit and intent, clarifying guidance was provided, to include:

	a.  This policy is the only NGB-recognized process to fill higher-grade positions outside the standard Enlisted Promotion System (EPS) procedures announced in AR 600-8-19. 

	b.  States may advertise a vacancy through a SWVA only after completing the mandatory requirements in paragraph 3b and still failing to obtain a qualified Soldier.  Such vacancies must be announced for a minimum of 30 days and include distribution to deployed units to ensure all Soldiers have an opportunity to apply.

	c.  Upon selection and subsequent acceptance, the Soldier will be assigned to a valid vacancy.

	d.  Although non-duty MOSQ Soldiers selected to fill a vacancy by SWVA may be assigned to the position prior to achieving MOSQ for the position, they may not be promoted until achieving such qualification.  After which, they will be promoted as soon as possible.  Upon meeting all requirements for promotion, the following conditions apply:

		(1)  Soldiers with promotion list status will be administratively assigned to the new career progression MOS (CPMOS) list.  Upon posting of the new promotion list, Soldiers may be promoted.

		(2)  Soldiers without list status will be notified and scheduled for the next annual or supplemental board.  Upon posting of the new promotion list, Soldiers may be promoted.

		(3)  Soldiers are authorized to be promoted out of sequence because their original selection was against an exhausted promotion list.

	e.  All transfer orders for Soldiers selected under the SWVA will reflect the control number in the additional instruction.  The additional instructions will also include all requirements that must be met to meet the promotion criteria of the duty position to which assigned (e.g., MOS qualification, completion of requisite NCO Education System, zone of consideration, etcetera).

18.  NGB policy memorandum Subject:  ARNG SRIP for FY12, dated 25 July 2012, provided guidance to help leadership and personnel managers meet and sustain ARNG readiness requirements.  SRIP provides recruiting and retention incentives to help fill critical shortages.  Incentives are used when other less costly methods have proven inadequate or ineffective, and only when necessary to support unit and skill requirements.  This policy memorandum provided, in part, the following guidance in the paragraphs indicated:

	a.  7b - The recipient must fill a valid, Automated Unit Vacancy System (AUVS) position in the Recruit Quota Enlistment System (REQUEST) or the Army Automated Reenlistment Reclassification System (RETAIN).  The AUVS is the system of record for determining valid vacancies for incentives.

	b.  7g - An incentive addendum must have an approved automated control number (CN) issued on or before the date of the service agreement.  The CN is valid only for the incentive addendum that it is requested and approved for.

	c.  7h - Soldiers shall serve satisfactorily in the authorized MOS/AOC for the full term of the service agreement, except for authorized exceptions.

	d.  7t - Army Regulation 601-210 governs suspension, reinstatement, termination, and recoupment of incentives.  This policy supplements the regulation with specific criteria for each incentive.

	e.  7u - Soldiers may continue to receive full incentive payment, if otherwise eligible, when they are transferred or reassigned in accordance with AR 601-210.

	f.  12 - Soldiers reenlisting for an REB must be the primary position holders in an authorized military grade and skill qualification commensurate with the positions for which they are reenlisting/extending.

	g.  20 - Entitlement to an incentive will be terminated when any of the termination reasons in AR 601-210 apply before the fulfillment of the service described in the member's written agreement.

	h.  21b - Soldiers whose MOS is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized, or converted are entitled to continue receiving incentives provided they meet all other eligibility criteria, become DMOSQ within 24 months, and are not separated from the SELRES.  Soldiers must be coded 9994, excess due to reorganization to continue receiving incentives provided they meet all other eligibility criteria, become DMOSQ in SIDPERS (9995 Total Army Personnel Database - Guard (TAPDB-G) code).  

	i.  21m - Soldiers who voluntarily transfer out of the CS position for which the incentive is approved will be subject to termination of entitlement with recoupment.

	j.  25 - The Chief, Education, Incentives, and Employment Division is the proponent for this policy and is the authority for ETP determinations.  All ETPs will be initiated by the Soldiers and routed through their chain of command to the State Incentive Manager and State Military Personnel Officer, to the Incentive Operation Team for action.

19.  Army Regulation 601-210, paragraph 10-5, provides guidance for continued receipt of incentives.  It stipulates, in part, the following guidance in the paragraphs indicated:

	a.  10-5a(3) - A Soldier may be eligible for continue receipt of incentives when transfer is at the convenience of the Government and authorized by the Chief, NGB or Chief, Army Reserve.  The Soldier must become MOS qualified in the new skill within 24 months or incentives will be terminated.

	b.  10-8(5) - Incentive eligibility will be stopped and the Soldier shall not be eligible to receive any further incentive payments, except for service performed before the termination date, when they voluntarily move to a nonbonus unit or MOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an ETP in order to retain entitlement to a $10,000 REB that he contracted for under the provisions of the ARNG SRIP for FY12 was carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant signed a written agreement for a $10,000 REB at the time of reenlistment in the MIARNG for a period of 6 years on 16 October 2012.


3.  The terms of his written agreement for the REB stipulated that in order to remain eligible for the incentive, he was obligated to serve in the same skill (MOS 35F) for which the bonus was approved unless excused for the convenience of the Government.  This agreement further stipulated he could be terminated from incentive eligibility with recoupment if he voluntarily transferred out of the MOS for which the incentive was approved.

4.  The evidence shows he voluntarily applied for transfer to an MOS 31B position in order to receive an accelerated promotion under the provisions of the SWVA process.  The applicant admits that he voluntarily transferred from his contracted MOS to 31B under the provisions of the SWVA program, but contends that he intended to execute his reenlistment/extension for MOS 31B and the MOS information was entered incorrectly in the documentation.  This contention is refuted by the fact that MOS 35F is clearly printed in several places on his contract and he acknowledged reading, understanding, and concurring with the contract as written.  Therefore, his allegation is unfounded.

5.  He subsequently requested an ETP which was denied by the NGB due to the fact he was no longer serving in the MOS for which he contracted.  As a result, the State Incentive Manager was directed to terminate the applicant's incentive bonus with recoupment.

6.  The Army has limited funds to apply to bonuses and they must be applied prudently to maximize the Army's return on its investment by ensuring that only those eligible to receive them do so.  As a result, he 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)                                         AR20140014788





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ABCMR Record of Proceedings (cont)                                         AR20140014788



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