IN THE CASE OF:  	  

		BOARD DATE:  2 July 2015	  

		DOCKET NUMBER:  AR20140017978 


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 an exception to policy (ETP) to retain his $20,000.00 Non-Prior Service Enlistment Bonus (NPSEB).

2.  The applicant states:

* he enlisted for assignment to the 249th Army Band and his age was a factor
* the only training seat available to accommodate his age at the time and paying the same $20,000.00 NPSEB as military occupational specialty (MOS) 42R (Musician) was for MOS 11B (Infantryman)
* he was sent for additional hearing tests during processing at Fort Benning, GA, resulting in being assigned a permanent physical profile for hearing loss and he required a change in MOS or duty station

3.  The applicant provides:

* DA Form 3349 (Physical Profile)
* memorandum for record, dated 8 October 2014
* ETP denial letter, dated 4 August 2014

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 West Virginia Army National Guard (WVAARNG) on 18 October 2006.

3.  In connection with his enlistment, he executed:

* Annex E (Enlistment Bonus Addendum – ARNG of the United States) to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)

4.  Section VI (Remarks) of his DD Form 1966 shows:

	a.  He was eligible for a cash bonus.

	b.  He was enlisting in pay grade E-4 for:

* MOS 42R, paragraph 102, line 07
* MOS 11B, paragraph 302, line 06
* MOS 92A (Automated Logistical Specialist), paragraph 304A, line 13

	c.  The following comment:

APPLICANT WILL TURN 42 YEARS OF AGE 23 OCT 2006.  PER ECM [ENLISTMENT CRITERIA MEMORANDUM] APPLICANT MUST SHIP TO TRAINING BEFORE 42ND BIRTHDAY.  PER PHONE CONVERSATION WITH SSG W____ AT FT BENNING, GA, APPLICANT WILL SHIP ON 20 OCT 2006 AND WILL START NEXT CLASS FOR 11B

5.  His Annex E shows he acknowledged:

* he was enlisting for MOS 11B which had been identified as eligible for a $20,000.00 critical MOS and for unit identification code (UIC) WQNMB0, Troop B, 1st Battalion, 150th Armored Reconnaissance Squadron, paragraph number 102, line number 004
* he would receive 50 percent of the bonus, less taxes, upon completion of initial active duty for training and he was awarded the MOS for which he enlisted
* he would receive the final bonus payment, less taxes, upon his third year enlistment anniversary
* he would not receive a payment until all requirements had been met and entitlement had been verified and certified by the State Incentive Manager
* termination and recoupment of the bonus would occur if he voluntarily transferred to a non-critical skill and non-bonus unit (if enlisted for a critical skill he must remain in that critical skill for the first 3-year period) – recoupment would be effective the date of transfer

6.  His Annex E also shows he was assigned a bonus control number EXXXXXXXXWV and the statement, "Contract was verified by the State Incentive Manager for accuracy."  This document is void of a signature and date for the State Incentive Manager.

7.  Military Entrance Processing Station Orders 6291007, dated 18 October 2006, ordered him to initial active duty for training for MOS 11B at Fort Benning, GA, with a reporting date of 20 October 2006.

8.  WVARNG Orders 335-603, dated 1 December 2006, released him from attachment to the 249th Army Band, Morgantown, WV, and attached him to Company D, Recruit Sustainment Program, 249th Army Band, Williamstown, WV, for training, pay, and administration effective 1 November 2006.

9.  Headquarters, U.S. Army Infantry Center, Orders 356-3089, dated 22 December 2006, awarded him MOS 11B effective 16 February 2007 or upon completion of MOS training.

10.  On 16 February 2007, he was honorably released from initial active duty for training.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded MOS 11B.

11.  WVARNG Orders 179-608, dated 28 June 2007, show:

* he was awarded primary MOS 42R and secondary MOS 11B effective 22 June 2007
* MOS 11B was withdrawn as his primary MOS
* he had an enlisted cash bonus
* his duty title was Instrumentalist

12.  On 4 August 2014, the National Guard Bureau (NGB) Deputy G-1 denied the applicant's request for an ETP to retain his $20,000.00 NPSEB.  The NGB Deputy G-1 directed the State Incentive Manager to terminate the applicant's bonus with recoupment and stated:

* the applicant voluntarily transferred from the contracted MOS prior to completion of 3 years in accordance with his contract
* he voluntarily transferred to MOS 42R on 22 June 2007
* he violated ARNG Selected Reserve Incentive Program (SRIP) 
Policy 07-01, effective 1 October 2006

13.  The applicant provided a memorandum for record from the ARNG Senior Bandmaster, 249th Army Band, dated 8 October 2014, wherein he states:

	a.  The applicant's intent was to enlist in the band career management field.  His auditions and all processing were conducted with that intent.

	b.  The 249th Army Band was authorized a $15,000.00 NPSEB at the time.  Because of his upcoming birthday, the applicant had to be shipped quickly and outside of the peak training period (also authorizing a $5,000.00 quick-ship bonus).  Going to the Military Entrance Processing Station (MEPS), he was expecting a contract for a $20,000.00 bonus.

	c.  It became apparent at the MEPS that the applicant had to be accessed prior to his 42nd birthday and he needed a training seat starting in 1 week.  There were no MOS 42R training seats so some maneuvering took place in which the MEPS counselor decided to assign the applicant to an infantry training seat.  In order to do this, the applicant enlisted for an MOS 11B position.  He was then told to "sign here" and not to worry because he would remain assigned to the 249th Army Band.

	d.  Records show he was never assigned to the 150th Armored Reconnaissance Squadron (UIC WQNMB0).  Further research shows the 2005 150th Armored Reconnaissance Squadron modified table of organization and equipment (MTOE), effective until 2008, had no MOS 11B positions.  The paragraph and line entries in his DA Form 1966 indicate paragraph 102 and line 006; however, this paragraph and line never existed on the MTOE in effect.  The applicant's bonus addendum indicates an enlistment against paragraph 102, line 004, which was an MOS 42 position, not MOS 11B.  The assignments were not in line with the actual manning documents, including the MOS.  Most likely the recruiter and MEPS counselor were aware of this, but were more interested in securing the enlistment than following actual enlistment rules.

	e.  He was tracking the 125-percent assigned strength rule for the 249th Army Band to ensure compliance.  On the date the applicant enlisted, the unit was holding at 124 percent strength.  His records showed a projection of two losses within the next 6 months and he had four losses within the period in question.  The applicant was a qualified bonus enlistee for the band and MEPS personnel circumvented the rules.  (A copy of the 249th Army Band's MTOE for the period in question was not provided.)

14.  The applicant also provided a copy of his DA Form 3349, dated 24 October 2006, that shows he was assigned a permanent physical profile rating of 2 for moderate high-frequency sensorineural hearing loss, left ear.

15.  NGB memorandum, subject:  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007, 1 October 2006-31 December 2006, Policy Number 07-01, dated 1 October 2006, established policy to administer ARNG incentives for the subject period.

	a.  The ARNG offered the following incentives at the time:

* $20,000.00 NPSEB for a 6 or 8-year enlistment in one of the "Top Ten" approved critical skill MOSs
* $20,000.00 NPSEB for a 6 or 8-year enlistment in one of the 20 NGB-approved State critical skill MOSs
* $15,000.00 NPSEB for a 3, 6, or 8-year enlistment in the MTOE unit, regardless of MOS
* $5,000.00 NPS "Quick Ship" bonus (shipment to initial active duty for training within 45 days of enlistment), regardless of MOS or unit

	b.  MOS 11B was listed in the "Top Ten" and MOS 42R was listed for the WVARNG.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an ETP for retention of his $20,000.00 NPSEB was carefully considered.

2.  The evidence shows the applicant enlisted for a $20,000.00 NPSEB for MOS 11B and he agreed to serve in this MOS for a 3-year period.  He completed initial active duty for training and was awarded MOS 11B; however, he was transferred to MOS 42R prior to completion of the required 3-year period.

3.  He would have been eligible for a $15,000.00 NPSEB and a $5,000.00 NPS "Quick Ship" bonus had he enlisted in MOS 42R.

4.  Since he was transferred to an MOS that had a combined bonus amount of $20,000.00, his records should be corrected to show an ETP was approved for a $20,000 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 State ARNG records of the individual concerned be corrected by showing his request for an ETP was approved, authorizing the $20,000.00 NPSEB.



      _______ _   _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)                                         AR20140017978



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ABCMR Record of Proceedings (cont)                                         AR20140017978



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