IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140020164 


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 payment of the remaining unpaid portion of his $20,000.00 enlistment bonus and the reimbursement of all funds previously recouped as a result his bonus being terminated.

2.  The applicant states his unit miscoded him as absent without leave (AWOL), which resulted in his $20,000.00 enlistment bonus being terminated with recoupment by the Defense Finance and Accounting Service.  

	a.  He submitted supporting documentation to his chain of command, followed by an Inspector General (IG) complaint.  The investigation determined that his unit incorrectly coded him as AWOL and that this code had later been corrected and erased from the system.  Everyone in his chain of command and the IG seem to be in agreement that he was incorrectly coded as AWOL.

	b.  Nevertheless, he is being denied the full payment of his original bonus for the 6-year enlistment he successfully completed in August 2014.  He fulfilled his obligation, held up his end of the bargain, and the National Guard Bureau (NGB) is now denying him his bonus.

3.  The applicant provides:

* a Unit Absent Report, dated 14 July 2009
* a memorandum from the New Jersey Army National Guard (NJARNG), dated 21 July 2009, subject:  Termination of Incentives
* letter from his civilian employer, dated 6 September 2012
* DA Form 2823 (Sworn Statement), dated 10 September 2012
* a Bonus Termination and Suspension printout, dated 28 September 2012
* a memorandum from his company commander to the NGB, dated 2 April 2013
* a memorandum from the NGB, dated 3 February 2014
* email transmission, dated from 6 to 15 May 2014
* email transmissions, dated 6 November 2014

CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service in the U.S. Marine Corps (USMC), the applicant enlisted in the NJARNG for a period of 6 years on 26 August 2008.  

2.  His enlistment contract contains an NGB Form 600-7-4-R-E (Annex B to DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) (Enlisted Affiliation Bonus Addendum ARNG of the United States)), dated 
26 August 2008 that shows:

* he enlisted for 6 years for an affiliation bonus (AB) in a military occupational specialty qualified (MOSQ) modified table of organization and equipment (MTOE) unit for the amount of $20,000
* the bonus was to be paid in two 50 percent (%) installments
* the initial installment of 50% would be processed for payment upon his enlistment into the ARNG
* the second installment of 50% will be processed for payment on the third year anniversary of enlistment
* this addendum also shows he understood he would be terminated from bonus eligibility, with recoupment, if he became an unsatisfactory participant

3.  His record contains a memorandum, issued by the NJARNG incentives manager on 21 July 2009, which informed him he had been terminated from enlistment bonus participation, with recoupment, effective 30 November 2008, based on his unsatisfactory participation (9th AWOL as of 30 November 2008).

4.  He provided a letter from the Human Resources Coordinator of his civilian employer, Triple Canopy, dated 6 September 2012, who attested to the applicant's employment with the company.  According to this official, the applicant had worked overseas in Iraq in all capacities during the following periods:

* 5 December 2006 to 2 February 2007 (Mobile Training Team)
* 21 November 2007 to 22 April 2008 (Site Lead)
* 4 September 2008 to 1 February 2009 (Shift Supervisor)

5.  The applicant provided a sworn statement, dated 10 September 2012, wherein he stated:

	a.  During his initial enlistment into the NJARNG on 28 August 2008, he was employed by Triple Canopy, a private and personnel protection company based out of Herndon, VA.  His employment duration was from 5 December 2006 to 
1 February 2009.  In all capacities he worked overseas.  

	b.  After signing his enlistment contract, it was clarified and cleared with his recruiters and his chain of command that he was leaving for work/deployment and he would make up his time when he arrived back in the United States from contracting.  While he was in Baghdad, he received a phone call from Second Lieutenant (2LT) Sxxxxxx, who informed him the State had him listed as AWOL.  He and 2LT Sxxxxxx clarified the matter and the applicant informed 2LT Sxxxxxx that he was not AWOL and that somewhere in the chain of command the word about his employment was not passed up.  2LT Sxxxxxx was informed of his employment and the time frame his contract would expire, and that he would make up all of his time as soon as he returned to the United States.  

	c.  After the applicant's contract ended he returned to the United States and reported to the New Jersey City Armory where he immediately began making up his time. He reported for a period of about 2.5 weeks straight to Staff Sergeant (SSG) Mxxxxxxx.  The noncommissioned officers (NCO) present during that period were Staff Sergeant (SSG) Mxxxxxxx, SSG Dxxxxxx, Sergeant First Class Mxxxxxx, and SSG Vxxxxxxxxx.  The Officer's in Charge (OIC) were 2LT Sxxxxxx and First Lieutenant (1LT) Mxxxx.

6.  He provided a bonus termination and suspension report, dated 28 September 2012.  This report shows his bonus was terminated effective 30 November 2008 and the recoupment amount was listed as $9,166.67.

7.  His commanding officer, Captain Lxx, sent a memorandum, dated 
2 April 2013, to the NGB on his behalf, requesting an exception to policy for relief from recoupment of the Enlisted Affiliation Bonus.  His commander stated:

	a.  The bonus was retracted because the applicant was not present at drill and incorrectly placed in an AWOL status while he was working as a securities contractor for Triple Canopy in Iraq.  His placement in an AWOL status was incorrect because he informed his chain of command of the situation and made up the drill period when he returned home.  

	b.  As a result of this error, the applicant's drill pay is currently being garnished for the repayment of his bonus.

	c.  The applicant is an outstanding Soldier and NCO who has repeatedly and honorably served the country with both the USMC and the ARNG.  In August 2008, he was offered employment to help provide security as a contractor for Triple Canopy and took the opportunity to use his skill and training to contribute to the American effort in Iraq.  A letter verifying his service was attached.

	d.  While overseas, the applicant spoke to 2LT Sxxxxxx, his OIC at the time, who ensured him that it was known he was overseas and that he would be able to make up the drills when he returned.  SSG Dxxxxxx confirmed that the applicant came into the armory upon his return and performed his required duty.

	e.  The applicant is an exceptional Soldier and this situation needs to be rectified.  He is always present at drill and goes above and beyond what is required if him.  At no time was the applicant notified he had been categorized as AWOL.  This is not something he takes lightly since it does reflect his outstanding record of service.  This is also creating a substantial financial impact on the applicant.

	f.  The commander recommended the applicant retain his bonus that he earned through his service and be reimbursed for any wage garnishment that had been taken as repayment of the bonus.  The commander also recommended that the AWOL status resulting from this error be removed from his record.

8.  On 3 February 2014, the NGB denied the exception to policy request to allow the applicant to retain the $20,000.00 Enlisted Affiliation Bonus and indicated that the State incentive manager would terminate the applicant's bonus without recoupment.  The NGB further stated the applicant had been coded as having had 9 or more periods of unsatisfactory service which violates the ARNG Selected Reserve Incentive Program (SRIP) 07-06 (10 August 2007 to 28 February 2009).  However, the unit corrected his status after the first payment had been recouped.

9.  He provided a report Unit Absent Report (for the period 1 August 2008 through 30 July 2009), dated 7 September 2014, which shows he was AWOL for 12 periods (unit training assemblies) during the period covered.

10.  ARNG SRlP guidance for fiscal year (FY) 2007, (10 August 2007 - 31 March 2008), (Policy Number 07-06), dated 10 August 2007 and the subsequently issued memorandum for the continuation of current bonus authorities, dated 
29 January 2009 show:
	a.  Paragraphs 5a states termination with recoupment will occur if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments except for payments for service performed before the termination date.  A failure to participate satisfactorily in required training during the entire period of service agreed to, in accordance with the written agreement, unless the failure to participate satisfactorily was due to reasons beyond the control of the member (i.e., death, injury, illness, or other impairment) is one of the most common reasons for termination.  However, the appropriate chapter of National Guard Regulation (NGR) 600-7 (SRIP) contains the complete termination rules for each respective incentive.  

	b.  Paragraph 6 addresses termination without recoupment and states the appropriate chapter of NGR 600-7 contains the all inclusive termination rules for each respective incentive.

	c.  Paragraph 14j(15)(a) addresses AB eligibility and states the ARNG offers two AB options to MOSQ Soldiers who affiliate in the ARNG for 3 or 6 years.  The two options are: affiliate MOSQ in a critical unit identification code or affiliate MOSQ in any MTOE unit.  The AB for affiliation in a Non-Critical MTOE unit applies to MOSQ applicants who affiliate in a valid position for a 6-year enlistment option in a Non-Critical MTOE unit, up to 125% of their unit's authorized war-time strength at the MOS level will receive a $20,000.00 bonus.  The $20,000.00 critical skill AB will be paid in two 50% installments.  The initial installment of 50% ($10,000.00) will be processed for payment upon enlistment into the ARNG.  The second and final installment of 50% ($10,000.00) will be processed for payment on the third year anniversary of enlistment.  Note:  Soldiers transitioning directly from the active component will only receive their payment when they report to their gaining ARNG unit.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's unit was aware of his job obligation in Iraq and that his being listed as AWOL was an administrative error, which resulted in the termination of his bonus and the recoupment of his first installment. 

2.  His chain of command attempted to rectify the error by requesting an exception to policy on his behalf.  However, the NGB denied their request because he was AWOL, even though his unit stated that the AWOL entries had been corrected.

3.  He should not be held accountable for the administrative error his unit made or for their lack of communication, especially considering his unit had indicated an error was made.  Therefore, his record should be corrected to show his bonus was never terminated.  He should be reimbursed all monies that were taken from him to repay the first 50% installment of his bonus, and he should be paid the second 50% installment of his bonus.  

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State ARNG and Department of the Army records of the individual concerned be corrected by:

* showing he was never AWOL and his bonus was never terminated
* reimbursing him all monies that were recouped to repay the first 50% installment of his bonus
* paying him the second and remaining 50% installment of his bonus





      __________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)                                         AR20140020164





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ABCMR Record of Proceedings (cont)                                         AR20140020164



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