IN THE CASE OF:  

		BOARD DATE:  11 June 2015

		DOCKET NUMBER:  AR20140017103


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, in effect:

	a.  correction of her records to show she completed a National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) – Non-Prior Service Enlistment Bonus (NPSEB) Addendum – Army National Guard (ARNG) of the United States (ARNGUS));

	b.  an exception to policy (ETP) to retain her entitlement to the NPSEB and Student Loan Repayment Program (SLRP), both of which she contracted for at the time of her enlistment in the California ARNG (CAARNG); and

	c.  termination of ongoing recoupment actions pertaining to her NPSEB and/or the SLRP.

2.  The applicant states she was promised a bonus, but because she never read or signed the bonus addendum she did not know that accepting temporary employment as a military technician (Mil Tech) would result in the termination of her bonus eligibility.  She checked with a former Incentives Noncommissioned Officer (NCO), who told her that accepting employment with the ARNG would not affect her bonus.  The Incentives NCO updated and corrected her loan repayment paperwork because it had not previously been paid.

3.  In a separate memorandum to the Army Board for Correction of Military Records (ABCMR), dated 1 October 2012, the applicant states:
	a.  She visited a recruiting office in September 2006 to inquire about specific Army specialties she could enlist for that would be most similar to combat arms specialties.  Her recruiter told her that for females, the closest specialty was Military Police (MP).  She told her recruiter she wanted to enlist for that specialty.

	b.  She was informed that the bonus for enlisting to be an MP was only $5000 and there was a waiting list of applicants for that specialty.  Her recruiter informed her that other specialties qualified for a larger bonus.  She asked about the bonuses and which specialties qualified for a higher bonus, and she was told about critical military occupational specialties (MOS) that would qualify for a $20,000 bonus; MOS 42A (Human Resources Specialist) was the critical skill that would get her to Basic Training in the shortest amount of time.  She enlisted for MOS 42A, based on the $20,000 bonus and the short timeframe to ship, as well as the bills she had to pay and the fact that he told her she could reclassify to the MP MOS during her second year. 

   c.  She enlisted in the CAARNG on 13 October 2006.  She signed her paperwork and had them print a copy for her records, and she was present the entire time during this process.  She doesn't remember a full Bonus Addendum being produced.  She didn't think anything of it; as a new recruit, she wouldn't have had the knowledge to know what paperwork should have been present.

	d.  More recently, she was informed that her entire enlistment bonus and SLRP payments would be recouped because she accepted temporary employment as a Mil Tech and because there was no record of a bonus addendum in her interactive Personnel Electronic Records Management System (iPERMS) record.  She remembers her recruiters told her that the only condition under which her bonus would be terminated was her acceptance of an Active Guard Reserve (AGR) position; she is positive about that.

	e.  On 10 February 2012, Lieutenant Colonel (LTC) MP emailed her brigade commander and command sergeant major to inform them that she was allegedly notified of her incentive default situation by memorandum, postmarked                 9 February 2012, which she contends she didn't receive.  Her Noncommissioned Officer in Charge (NCOIC) informed her on 14 March 2012 of her incentive default situation.  She informed her NCOIC that she did not receive notification of the audit and asked if someone could get her the Incentives Task Force (ITF) memorandum.

	f.  She wasn't sent another ETP packet request until around September 2012. She accepted temporary employment as a Mil Tech at the request of her first sergeant (1SG) and sergeant major (SGM), despite not being informed of the consequences of taking such employment.  She wouldn't have accepted employment as a Mil Tech if she had known it would result in the termination of her incentives.  Also, she wouldn't have signed for up for a bonus with the knowledge it was false and could possibly be taken from her at a later date.

4.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) and DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 13 October 2006
* NGB Form 600-7-5-R-E (Annex S to                DD Form 4 – SLRP Addendum – ARNGUS), dated 13 October 2006
* an NGB memorandum, dated 29 October 2008, subject: Change to Active Guard Reserve (AGR) and Mil Tech Termination and Recoupment Rules
* DA Form 1059 (Service School Academic Evaluation Report), dated          8 May 2009
* an NGB memorandum, dated 14 September 2009, subject: Clarification of Continuing SLRP Benefits Upon Acceptance of an AGR and/or Mil Tech Position
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 September 2010
* her memoranda to the ABCMR and the State Incentive Manager for the CAARNG, each dated 1 October 2012
* a CAARNG memorandum, dated 27  May 2014, subject: Denied ETP Request – Non-Prior Service Critical Skills Bonus ($20,000)/SLRP ($428.25)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CAARNG on 13 October 2006.  Item 32 (Specific Option/Program Enlisted For, Military Skill, or Assignment to a Geographical Area Guarantees), found on page 3 her DD Form 1966, shows her contracted incentives included the NPSEB and the SLRP.

	a.  Her record is void of an NGB Form 600-7-1-R-E (Annex E to DD Form      4 – NPSEB Addendum – ARNGUS); however, CAARNG records indicate a valid bonus control number (BCN) was requested and approved on the date of her enlistment.

	b.  Her NGB Form 600-7-5-R-E documents her entitlement to loan repayment under the SLRP.  In Section V (Termination) of this form, she acknowledged her understanding that her SLRP eligibility would be terminated if she accepted a    Mil Tech position.  She signed this form, attesting to her understanding and acceptance of the information contained therein.
2.  She entered active duty on 12 March 2007, completed her initial entry training and was awarded MOS 42A, and was honorably released from active duty and returned to the CAARNG on 28 July 2007.

3.  She accepted employment as a Mil Tech on 22 June 2008.  Her record is void of any documentation that specifies the nature of this employment; specifically, whether she was hired on a temporary or permanent basis.  Nevertheless, she remained employed as a Mil Tech until 30 September 2009.

4.  She was mobilized and entered active duty on 10 August 2009.  She deployed to Iraq in support of Operation Iraqi Freedom, and she was promoted to the rank/grade of sergeant/E-5, effective 14 June 2010. 

5.  She was honorably released from active duty at the end of her required period of active service and returned to the CAARNG on 6 September 2010. 

6.  The Soldier Incentives Assistance Center (SIAC), CAARNG, audited her incentive records, terminated her entitlement to the NPSEB and SLRP, and on 12 September 2012 levied a debt against her in the amount $20,428.45.

7.  She formally requested an ETP from the State Incentive Manager on              1 October 2012, wherein she requested relief from, and termination of, the levied recoupment action in the amount of $20,428.45 that resulted from the termination of her incentive entitlements.

8.  She was honorably discharged from the CAARNG on 12 October 2012 and assigned to the U.S. Army Reserve (USAR) Control Group (Annual Training) the following day.

9.  The SIAC Commander denied her ETP request on 27 May 2014 on the basis that the requested relief was beyond the authority of the CAARNG or NGB to grant. 

10.  She was honorably discharged from the USAR effective 14 October 2014.
11.  She provides two NGB memoranda, dated 29 October 2008 (Change to AGR and Mil Tech Termination and Recoupment Rules) and 14 September 2009 (Clarification of Continuing SLRP Benefits upon Acceptance of an AGR and/or Mil Tech Position).  These memoranda provided that ARNG enlisted Soldiers who accepted a Mil Tech position would have their entitlement to SRIP incentives terminated without recoupment; however, any unpaid portion of the incentive would still be paid to the Soldier.

12.  In the processing of this case, advisory opinions were obtained from the SIAC Commander, CAARNG, and the Chief, Personnel Policy Division, NGB.
	
	a.  In an advisory opinion dated 5 November 2014, the SIAC Commander recommended approval of the applicant's request for administrative relief and the cancellation of her recoupment action (emphasis added), citing the following points:
		
		(1)   The SIAC audited the applicant's incentive records and discovered she was not eligible to receive payments for the NPSEB and an SLRP incentive. There was no evidence of fraud on her part.  She was eligible to contract for the $20,000 NPSEB incentive; however, no bonus addendum was on file, rendering payment of this bonus a violation of subsection (c)(2) of section 308c of Title 27 of the United States Code (U.S.C.). 

		(2)  She contracted for the SLRP incentive, but became ineligible when she accepted a Mil Tech position.  Despite her ineligibility, she received payments totaling $428.45 in excess of the amount for which she was eligible.  She now requests relief from recoupment. 

		(3)  On 12 September 2012, the SIAC certified a $20,428.45 debt, for the incentives she received, to the USPFO for the State of California to initiate recoupment.

		(4)  She enlisted in the CAARNG on13 October 2006 in MOS 42A.  Although no bonus addendum is on file, a BCN associated with her NPSEB was requested on the date of enlistment (E06100051CA).  She became MOS qualified on 19 January 2007.

		(5)  She accepted a Mil Tech position on 22 June 2008, which she maintained until 30 September 2009.  She entered active duty on 10 August 2009 and served in Iraq from 25 September 2009 through 4 August 2010.  She was released from active duty on 6 September 2010.

		(6)  She was paid a total of $20,000 in connection with the NPSEB BCN requested at the time of her enlistment, in three payments with voucher dates    17 August 2007 ($7,500.00); 14 September 2007 ($2,500.00), and 4 September 2009 ($10,000.00).

		(7)  She was not eligible to receive NPSEB payments due to the absence of a written agreement.  Subsection (c)(2) of section 308c of Title 37, USC authorizes payment of a bonus on the condition that the recipient executes a written agreement.  This requirement is also found in ARNG Selected Reserve Incentive Program (SRIP) Policy 07-01, which was in effect on the date of her enlistment.  Although she was otherwise eligible to contract for the incentive, she was not eligible to receive payment on the NPSEB absent a written agreement.

		(8)  Furthermore, had she executed a written agreement the bonus would have been terminated in accordance with Department of Defense Instruction (DoDI) 1205.21 (Reserve Component Incentive Programs Procedures), paragraph E3.l.8.2, which, along with subsection (c) of section 6 of SRIP 07-01, lists as a ground for termination without recoupment acceptance of a Mil Tech position where membership in the ARNG is a condition of employment, when the Soldier has served at least 6 months of the incentive contract term.  The NPSEB would have been terminated on 22 June 2008 and the recoupment of payments already made would have been waived to the extent permitted under paragraph E3. l.5.  Because she contracted for a $20,000 bonus over a 72-month term, and she had satisfactorily served 20 months prior to termination, she would have been allowed to keep $5,555.55 with an obligation to refund as overpayment $4,444.45 of the $10,000 she had already received prior to the date of termination, pursuant to paragraph E3.l.5 of DoDI 1205.21.  She was never eligible for the final $10,000 payment, which was paid on 4 September 2009.

		(9)  She was eligible to contract for the SLRP incentive, and an SLRP addendum is on file.  She was eligible to receive payments up to 22 June 2008, the date she accepted a Mil Tech position.  Per SRIP 07-01, she would have been eligible for 15% of her $5,125 student loan debt for each year she maintained her eligibility for SLRP.  Although a lump sum $1,709.70 payment was disbursed to her Sallie Mae Federal Perkins Loan on 6 October 2008 (credited to Fiscal Year (FY) 06-08 at the rate of $569.90 per fiscal year), the total amount she was actually eligible for was $1,281.25 (15% X $5,125.00 for FY 07 plus a prorated amount ($512.50) for the eight months she retained her eligibility in FY 08).  Ultimately, her SLRP incentive was overpaid by an amount equal to $428.45.

		(10)  It may be worth noting that starting 29 October 2009 (effective date: 9 October 2008) the NGB published, then rescinded, a convoluted series of policy updates (including NGB-EDU 09-001, 09-058, 12-021, 12-022, and        13-003) regarding termination and recoupment of incentives upon acceptance of a Mil Tech position.  However, because the effective date of these updates appears to be 9 October 2008, some 4 months after the service member accepted a Mil Tech position, they do not appear relevant to her case. 

		(11)  Based upon the fact that she was fully eligible for the NPSEB, a contract should be created to support her eligibility for this incentive, relief from recoupment should be granted for the amount she received in excess of the $5,555.55 she was eligible for (emphasis added).

		(12)  Relief from recoupment should be granted for the $428.45 overpayment she received on her SLRP incentive (emphasis added).

	b.  In an advisory opinion dated 20 November 2014, the Chief, Personnel Policy Division, NGB recommended granting partial approval of the applicant's request for administrative relief and the cancellation of her recoupment action (emphasis added).  Specifically, NGB recommended relief from recoupment of past payments associated with her NPSEB incentive and recoupment of the overpayment associated with her SLRP incentive, an amount equal to $428.45.
NGB citing the following points:
		
		(1)  [Applicant] enlisted in the CAARNG on 13 October 2006, at which time she met the eligibility requirements for both the NPSEB and SLRP.  She was in Mil Tech status from 22 June 2008 through 30 September 2009.

		(2)  She was paid the full $20,000 for the NPSEB; however, the bonus faces recoupment because there is no contract addendum on file; written agreements are required in accordance with Title 37 USC section (§) 331.  She is not at fault for the lack of a contract addendum.

		(3)  A BCN was requested on the date of enlistment.  The fact that a BCN was created on the date of enlistment indicates there was a source document to prompt this, presumably a contract addendum.

		(4)  Accepting a Mil Tech position results in bonus termination without recoupment.  There is no recoupment because the she served more than six months of the contract before accepting the Mil Tech position.  She received the first half of the bonus ($10,000), while still eligible, prior to becoming a Mil Tech.

		(5)  The CAARNG failed to terminate the NPSEB and made the payment of the second half of the bonus ($10,000), one year after she accepted a Mil Tech position.  The erroneous payment may be waived by the Secretary of the Army, up to $10,000, in accordance with 10 USC § 2774, paragraph (a).

		(6)  [Applicant] was fully eligible for SLRP payments.  The incentive was terminated without recoupment when she accepted the Mil Tech position; however, she was overpaid by $428.45 (emphasis added).

		(7)  When accepting a Mil Tech position, the incentive terminates without recoupment (emphasis added), in accordance with Army Regulation 135-7 (Incentive Programs), paragraph 5-1.6d, and National Guard Regulation 600-7 (SRIP), paragraph 5-5g.
  
13.  The advisory opinions were provided to the applicant on 24 November 2014, for review and as an opportunity to respond or rebut the findings and recommendation contained within the provided opinions; however, she did not respond.

14.  Army Regulation 135-7 establishes a single reference for incentives authorized within the ARNG, ARNGUS, and the USAR.  It covers incentive benefits, and identifies eligibility criteria and entitlement, termination, suspension, and recoupment requirements.  Paragraph 5-1.6 provides specific guidance relative to the termination of a Soldier's entitlement to the SLRP incentive.  In pertinent part, it provides that entitlement and eligibility to the SLRP will stop if/when a Soldier accepts a permanent civilian position where ARNGUS membership is a condition of employment. 

15.  National Guard Regulation 600-7 provides ARNG policies regarding the implementation of the SRIP.  It sets responsibilities, lists benefits, describes eligibility criteria and entitlement, sets suspension, termination, and recoupment requirements, and prescribes processing and payment procedures.  Paragraph 5-5 of the version in effect at the time provided specific guidance relative to the termination of a Soldier's entitlement to the SLRP incentive.  In pertinent part, it provided that entitlement and eligibility for the SLRP would be terminated upon a Soldier's acceptance of a Mil Tech position (including temporary technician positions over 179 days in duration and indefinite technicians), wherein ARNG or ARNGUS membership was a condition of employment, effective on the date of employment.  However, such terminations were not subject to recoupment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for correction of her records to show she completed an NGB Form 600-7-1-R-E at the time of her enlistment; an ETP to retain her entitlement to the NPSEB and SLRP; and termination of ongoing recoupment actions pertaining to her NPSEB and SLRP were carefully considered.

2.  When she enlisted in the CAARNG on 13 October 2006, her contracted incentives included both the NPSEB and the SLRP.  Her record does not contain an NPSEB Addendum; however, as stated in the NGB advisory opinion, she is not at fault for the lack of a contract addendum in her official records.

3.  A BCN was requested on the date of her enlistment, and the fact that a BCN was created on the date of her enlistment indicates there was a source document to prompt this, presumably a contract addendum.  Therefore, it would be appropriate to correct her records to show she completed a valid NPSEB Addendum on the date of her enlistment.

4.  After becoming MOS qualified on 19 January 2007, she received NPSEB payments totaling $10,000 on 17 August and 14 September 2007.

5.  She accepted employment as a Mil Tech on 22 June 2008.  In accordance with policies in effect at the time, her entitlement to the NPSEB and SLRP should have been terminated without recoupment at that time; however, any unpaid portion of the incentive should have been paid to the Soldier.  The CAARNG paid her the second half of her NPSEB ($10,000) on 4 September 2009.

6.  NGB policy in effect at the time allowed for the continued payment of unpaid incentives following the termination of a Soldier's entitlement to SRIP incentives.  As such, it appears her prior NPSEB payments were both legitimate and appropriate.  Both the CAARNG and NGB recommend the waiver of her debt and relief from recoupment of prior NPSEB incentive payments.  

7.  Her record does contain an SLRP Addendum and she was entitled to annual payments under the SLRP until she accepted employment as a Mil Tech on       22 June 2008.  According to the CAARNG and NGB advisory opinions, it appears SLRP payments exceeded her entitlement by an amount equal to $428.25.  The CAARNG recommends this debt be waived; however, NGB recommends it be recouped.

8.  Since her NPSEB payments appear to be legitimate and since she served an additional 4 years after her entitlement to payments under the SLRP was terminated, there is no harm to the government in forgiving her NPSEB and SLRP debts and terminating any related recoupment actions. 

9.  She requests an ETP to retain her entitlement to the NPSEB and SLRP.  In accordance with regulation and policy in effect at the time, her entitlement to both incentives was properly terminated following her employment as a Mil Tech in June 2008.  She has since received the entirety of the NPSEB incentive she contracted for.  However, there is no remaining entitlement to payments under the SLRP.  Therefore, there is no basis to grant this portion of the requested relief.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records and recommendation to her Army National Guard records of the individual concerned be corrected by:

* showing she completed a valid NPSEB Addendum at the time of her enlistment 
* waiving any debt attributed to NPSEB or SLRP payments she received 
* stopping the recoupment action against her
* reimbursing her any previously-recouped payments

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting an exception to policy for continuing entitlement to NPSEB and SLRP incentives.



      _______ _   __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)                                         AR20100024747



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ABCMR Record of Proceedings (cont)                                         AR20140017103



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