IN THE CASE OF:  	  

		BOARD DATE:  9 July 2015	  

		DOCKET NUMBER:  AR20140018107 


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 cancellation of the recoupment of his reenlistment/
extension bonus (REB) based on his reenlistment in the California Army National Guard (CAARNG) on 15 April 2007.

2.  The applicant states:

	a.  Errors and injustices in his military records should be corrected to reflect that he was eligible for the $15,000.00 REB in 2007 per his DA Form 4836 (Oath of Extension of Enlistment or Reenlistment).  His time in service (TIS) was less than 20 years.  He relied upon unit retention personnel.

	b.  The erroneous recoupment of the REB should stop.

	c.  The National Guard Bureau (NGB) erroneously and unjustly determined he was not eligible for the REB he received in 2007 based on his TIS.  This determination is erroneous because his TIS was less than 20 years.

	d.  As for clerical errors in completion of the form, the form was completed by and under the supervision of the expert unit retention personnel and reviewed prior to payment by the CAARNG Incentives Branch.

3.  The applicant provides, in order of submission:

* DA Form 4836, dated 15 April 2007
* page 2 of his NGB Form 600-7-3-R-E (Annex R to DD Form 4 (Enlistment/
Reenlistment Document – Armed Forces of the United States) or DA Form 4836 – REB Addendum – ARNG of the United States) (14 December 2004)
* CAARNG memorandum, dated 19 August 2012, subject:  Request for Documentation Supporting Your Incentive(s)
* U.S. District Court for the Central District of California Plea Agreement for former CAARNG Incentives Manager
* CAARNG memorandum, dated 11 September 2012, subject:  ETP Request for (Applicant)
* NGB memorandum, dated 18 July 2013, subject:  Request for ETP for REB (Applicant)
* CAARNG memorandum, dated 2 September 2014, subject:  Notification of Bonus Incentive Termination
* Title 37, U.S. Code, section 308b, excerpt
* ARNG SRIP Policy Number 07-06
* National Guard Regulation 600-7 (SRIP)
* memoranda of recommendation
* Department of Veterans Affairs (VA) Rating Decision, dated 12 February 2009
* VA letter, dated 3 October 2014
* CAARNG Orders 311-1001, dated 7 November 2013
* CAARNG memorandum, dated 29 October 2013, subject:  Medical Discharge
* leave and earnings statement for the period 1 August 2013
* blank NGB Form 600-7-3-R-E (Revised 10 August 2007)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests copies of communications and notices in this matter.

2.  Counsel makes no additional statement.

3.  Counsel provides a 12-page continuation of the applicant's DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) wherein the applicant states, in summary:

	a.  One month after 11 September 2001, he reenlisted in the CAARNG for a period of 6 years.  During this enlistment, his unit was activated and deployed to Iraq in support of Operation Iraqi Freedom in 2003.  He was on convoys – experiencing combat, firefights, and convoys hit by improvised explosive devices.  He received commendations and awards.

	b.  In April 2007, he was informed by the company commander and the retention noncommissioned officer (NCO) that he could receive an REB in the amount of $15,000.00 if he extended his enlistment for 6 years.  He relied on the information provided by his company commander and retention NCO, whose military jobs were to be experts in the area of incentives and reenlistments.  He extended his enlistment for 6 years in exchange for the REB.

	c.  After returning from deployment, he was diagnosed by the VA with post-traumatic stress disorder (80 percent).  Due to PTSD, he was no longer able to pursue his civilian career as a police officer.  He continued to serve in the CAARNG until 2013 when his PTSD forced him into retirement after more than 20 years of honorable service.

	d.  One year before his retirement in 2012, he received a notice from the CAARNG requiring him to justify the REB incentive he received in 2007.  This request was due to no fault of his own or misconduct on his part.  Rather, the former CAARNG bonus and incentive manager pled guilty to fraudulently processing enlistment incentives in 2011.  According to the plea agreement, the incentive manager's misconduct was estimated to have resulted in approval of improper incentive bonuses totaling between $7,000,000.00 and $20,000,000.00.

	e.  In 2012, he submitted a request for an exception to policy (ETP) to retain the REB, but NGB denied his request because his TIS exceeded the authorized TIS criteria which violated ARNG SRIP Policy Number 07-06 and he failed to initial one section of the bonus addendum.

	f.  He did nothing wrong.  He acted in good faith and in reliance upon the expertise of the responsible retention and incentives officers in the proper chain of command and in compliance with their directions.  Any and all mistakes, errors, and wrongdoings are not attributable to any conduct by him.  He upheld his end of the contract.

	g.  He was clearly eligible for the REB when he reenlisted in 2007.  He suffers daily from the effects of combat-induced PTSD.

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the CAARNG, U.S. Army Reserve, and U.S. Air Force Reserve, the applicant enlisted in the CAARNG on 21 December 2000.

2.  His DD Form 4836, dated 15 April 2007, shows he reenlisted/extended for a 6-year period.  His current expiration term of service (ETS) was 19 December 2007 and his new ETS was established as 19 December 2013.

3.  His NGB Form 600-7-3-R-E (14 December 2004 edition), dated 15 April 2007, shows he extended for a bonus in the amount of $15,000.00.

	a.  Section II (Eligibility) states:

Upon my reenlistment or extension in the Army National Guard of the United States I am eligible for a Reenlistment or Extension Bonus under the Selected Reserve Incentive Program (SRIP) if I meet the following criteria (Initial as appropriate item 7 or 8).

7.  I have less than 16 years of total military service at current Expiration Term of Service (ETS) and I am re-enlisting for 6 years within 90 days prior, or 24 hours after, completion of my current ETS.  ____

8.  I understand that if I am being mobilized and I am contracting for the re-enlistment/extension bonus, I must initiate and sign this addendum while in a Combat Zone in order to receive the tax-free option.  ____

	b.  Neither item 7 nor item 8 were initialed.

	c.  Section III (Bonus Amount and Payments) states:

1.  I will receive a bonus of $7,500 or $6,000 for a 3-year reenlistment/
extension or $15,000 for a 6-year reenlistment/extension as indicated below.

c.  ____  For a 6 year reenlistment/extension I will receive a bonus of $15,000.  I will receive the bonus in a lump sum payment, which is payable upon the effective date of the new contract (day after current contractual ETS).

	d.  Item 1c is initialed.

4.  He was promoted to master sergeant effective 18 June 2010.

5.  On 18 July 2013, NGB disapproved his request for an ETP to retain the $15,000.00 REB because:

	a.  he exceeded the authorized TIS criteria for the incentive which violated ARNG SRIP Policy Number 07-06 and

	b.  he failed to complete the bonus addendum; section II, item 7, was not initialed which violated ARNG SRIP Policy Number 07-06.

6.  NGB directed the State Incentive Manager to terminate the applicant's incentive with recoupment.

7.  His Personnel Qualification Record, prepared on 7 November 2013, shows his pay entry base date (PEBD) as 20 September 1991.

8.  On 29 March 2013, the applicant requested transfer to the Inactive National Guard (ING) because his medical condition prevented his drill attendance.  He was placed in an ING status from 29 March 2013 to 13 November 2013.

9.  He was honorably discharged from the CAARNG effective 14 November 2013.

10.  He provided a blank NGB Form 600-7-3-R-E, revised effective 10 August 2007, which states previous editions of this form are obsolete.

	a.  Section II (Eligibility) of this form states:

Upon my reenlistment or extension in the Army National Guard of the United States I am eligible to receive a reenlistment or extension bonus under the Selected Reserve Incentive Program (SRIP) if I meet the following criteria:

6.  I will:  (Soldier initials the applicable option in a or b below)

b.  not have more than 20 years of total military service upon my current Expiration Term of Service (ETS) and I am re-enlisting or extending for 6 years.  My extension is not more than 1 year prior to, or 24 hours after my current ETS.  ____

11.  ARNG SRIP Fiscal Year 2007, 2008, and 2009 (Policy Number 07-06), dated 10 August 2007, states Soldiers reenlisting/extending for the REB must not have completed more than 20 years of TIS computed from their PEBD at their current ETS.  The current law prohibits bonus payment amounts from including any portion of a reenlistment or extension that, when added to a member's total years of service, exceeds 24 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests payment of an REB in the amount of $15,000.00 per the terms of his NGB Form 600-7-3-R-E.

2.  The evidence confirms he reenlisted for 6 years in the CAARNG on 15 April 2007, opting for an REB in the amount of $15,000.00.  His PEBD was 20 September 1991 and his current ETS was 19 December 2007.  He had 16 years and 3 months of TIS at the time of his current ETS.

3.  Although the REB Addendum he signed on 15 April 2007 states a Soldier will have less than 16 years of total military service upon his current ETS, the ARNG SRIP Fiscal Year 2007, 2008, and 2009 policy states Soldiers reenlisting/
extending for the REB must have less than 20 years of TIS at the time of current ETS.  Further, NGB Form 600-7-3-R-E was revised on 10 August 2007 in connection with the policy change to show Soldiers reenlisting/extending for a 
6-year period will not have more than 20 years of total military service upon their current ETS.

4.  Item 7 of section II of his REB Addendum is not initialed, but this appears to be a minor administrative oversight.

5.  Had the applicant waited to execute his enlistment extension until 10 August 2007, still more than 4 months prior to his ETS, he would have been in full compliance with the governing ARNG SRIP policy.  He relied on the expertise of the unit retention NCO.  In this regard, he did absolutely nothing wrong and the service representative should have verified that he met the eligibility requirements for the REB.

6.  It seems unjust for NGB to terminate his REB with recoupment after he fulfilled the 6-year reenlistment/extension period.  Therefore, notwithstanding the ETP memorandum and in view of the facts of this case, it would be appropriate at this time and serve the interest of justice and equity to correct the applicant's records to show his request for an ETP was approved based on the change in ARNG SRIP policy and pay him the REB in the amount of $15,000.00.

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

	a.  showing the applicant's request for ETP to retain the $15,000.00 REB, dated 15 April 2007, was approved based on the change in ARNG SRIP policy;

	b.  showing the Department of the Army authorized him to receive the bonus in question as agreed to in his NGB Form 600-7-3-R-E, dated 15 April 2007; and

	c.  paying him the $15,000.00 bonus as a result of the above corrections.



      _______ _   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)                                         AR20140018107



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018107



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1