IN THE CASE OF:  	  

		BOARD DATE:  23 June 2015	  

		DOCKET NUMBER:  AR20140018606 


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, termination of recoupment of his non-prior service enlistment bonus (NPSEB) and payment of the second half of his NPSEB. 

2.  The applicant states, in effect, that he enlisted in the West Virginia Army National Guard (WVARNG) for training in military occupational specialty (MOS) 25U (signal support systems specialist) and a $20,000 NPSEB.  He completed his training and returned to his unit; he was placed in an excess position and did not receive his NPSEB.  He was subsequently placed in a valid position and got the first half of his bonus. He was then advised by unit personnel that if he retrained into another critical specialty he would be able to remain eligible to receive the other half of his bonus.  He completed training in MOS 31B (military police) and was assigned to a vacant 31B position in the same unit.  However, he was unable to receive the second half of his NPSEB and was informed that because he reclassified to another MOS, he had violated his contract.  He was not properly advised by his unit, and if he'd known he would lose his NPSEB, he would have remained in his original MOS.  He was misled and all attempts to resolve this matter have failed. 

3.  The applicant provides copies of his bonus addendum, his request for an exception to policy, and the notification of his debt to the Government.



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 WVARNG on 24 April 2008 for a period of 6 years and 2 years in the inactive Reserve.   He completed Annex E to DD Form 4 (NPSEB Addendum – Army National Guard of the United States) wherein he indicated:

* he was non-prior service
* he enlisted in the 863rd Military Police (MP) Company
* training in the critical skill/MOS of 25U
* NPSEB of $20,000 less taxes (50/50 payment)
* first payment (50 percent) paid upon completion of advanced individual training and award of MOS 25U
* second payment on the 36th month anniversary of his enlistment date
* he would not receive payments until all requirements were met and verified by the proper authority
* termination with recoupment if voluntarily transferred into a non-critical skill MOS or transfer from the unit for which the bonus was awarded upon enlistment (recoupment is calculated from date of transfer)
* he acknowledged he read and understood the addendum

3.  He completed his training and returned to his WVARNG unit, the 863rd MP Company.  Upon completion of his schooling in April 2009, he was MOS qualified and was initially assigned to an excess position by his unit commander.  In order to assist the applicant in obtaining his bonus, the unit moved him to a valid 25U position in a different detachment and geographic location on 24 July 2009 as per Orders 205-627 published by the WVARNG.  He received the first half of his NPSEB in August or September 2009.

4.  Per the recommendation of a unit representative, the applicant agreed to retrain into another critical skill in order to remain in the primary unit and geographic location to maintain his bonus eligibility.  He completed both phases of training in MOS 31B on 14 September 2009.  He completed training through the Ohio Regional Training Institute (2nd Battalion, 147th Regiment).  No orders awarding him MOS 31B are filed in his Official Military Personnel File (OMPF).  

5.  On 24 April 2010, the applicant was advanced to private first class.  A review of the DA Form 4187 (Personnel Action) shows his MOS as 31B.

6.  On 19 May 2011, the applicant's company commander requested by memorandum payment of the second portion of the applicant's NPSEB.  The commander stated the applicant voluntarily transferred from Detachment 1, 863rd MP Company to the main company for a valid position in MOS 31B, also a critical skill MOS.    

7.  On 3 November 2011, the WVARNG military personnel officer endorsed the unit letter stating the applicant through no fault of his own was assigned initially in an excess manning position in MOS 25U in the 863rd MP Company.  He then was transferred to Detachment 1 and received his first NPSEB payment.  

8.  The applicant submitted a request for an exception to policy to retain his NPSEB with the support of his chain of command.  On 10 January 2012 the National Guard Bureau (NGB) denied his request and directed partial recoupment of his NPSEB effective 20 October 2009.  The NGB official stated the applicant had violated his enlistment contract which terminated his eligibility for the NPSEB and also required recoupment of the portion of the NPSEB paid to the applicant.  

9.  On 10 February 2012, the WVARNG advised the applicant by letter that partial recoupment action was initiated based on the date of transfer out of his contracted MOS.  In addition, payment of his second portion of the NPSEB was denied by the NGB.  

10.  On 12 December 2012, the applicant was honorably discharged from the WVARNG due to continuous and willful absences.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that recoupment action on his NPSEB debt should be terminated has been carefully considered and found to have merit. 

2.  The evidence of record shows that the applicant enlisted for a critical skill MOS and a $20,000 NPSEB and that he did everything he could to fulfill his contract.   It is also evident by the support of his chain of command that he was in fact advised that if he completed training as a military policeman, another critical skill, he would be able to retain his bonus.  He followed the advice of his chain of command and to his detriment he was denied the remaining half of his bonus and was required to repay part of the first half of the bonus .

3.  It is not reasonable to expect a new Soldier to know the intricacies of a critical skills enlistment contract or the process for obtaining a vacant slot in a unit to meet the requirements of an enlistment contract; however, it is expected that a Soldier new to the Army would follow the advice of his superiors.

4.  It also appears that the applicant made every attempt to honor his contract and that the department made very little effort to ensure he maintained his NPSEB eligibility.

5.  Therefore, as a matter of equity, the recoupment action should be terminated and any funds recouped from him for the first half of his NPSEB be returned.
 
6.  Inasmuch as the applicant was discharged from the WVARNG after serving 4 years of service, he should not receive the second half of his NPSEB due to violating the requirement to maintain active unit attendance status for 6 years as stated in his contract.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that his first payment of his NPSEB was valid and by terminating all recoupment actions associated with the first payment of his NPSEB and returning all funds recouped from the individual concerned. 

2.  The Board further determined that 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 payment of the second half of his 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)                                         AR20140018606



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ABCMR Record of Proceedings (cont)                                         AR20140018606



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