IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140004957 


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 relief from recoupment of his Non-Prior Service Enlistment Bonus (NPSEB) in the amount of $10,000.  He also requests reimbursement of the NPSEB monies previously collected.

2.  The applicant states:

   a.  he is currently repaying one half of the $20,000 NPSEB incentive that was paid to him after he graduated from advanced individual training;
   
   b.  he also lost his Montgomery GI Bill and kicker and wants repayment of what he lost or cancellation one half of the bonus payment;
   
   c.  the error or injustice occurred when he enlisted at the age of 17 and was told he would be able to serve a mission with his church and that the time he spent during the mission would be credited toward his Individual Ready Reserve status;
   
   d.  however, the time he spent during the mission was actually credited towards his years of service and therefore caused a breach in his contract of bonus payment; and
   
   e.  he was informed of the error too late after the bonus was being recouped by the military.


3.  The applicant provides:

* Idaho Army National Guard (IDARNG) Memorandum for Record (MFR)
* DA Form 2823 (Sworn Statement)

CONSIDERATION OF EVIDENCE:

1.  An NGB Form 600-7-1-R-E (NPSEB Enlistment Bonus Addendum) prepared during the applicant's enlistment processing shows he acknowledged in:

   a.  Section II (Eligibility) and Section III (Payments) – 
   
* he enlisted into a critical skill military occupational specialty (MOS) under the 6x2 or 8x0 enlistment option and would receive a $20,000 NPS critical skill bonus
* he would receive fifty percent (50%) minus taxes upon completion of initial active duty training (IADT)
* he would receive the second and final payment of 50% on the 36th month anniversary date of his enlistment

b.  Section IV (Suspension) – he would be suspended from bonus eligibility if he entered a period of non-availability (placement in the Inactive National Guard (ING).  Maximum periods of non-availability are:

* 1 year for personal reasons
* 3 years for missionary obligations
* Reinstatement of bonus eligibility is not guaranteed.  If bonus eligibility is regained, payments will be processed effective on the date the suspension is lifted or on the adjusted anniversary date of satisfactory creditable service

   c.  Section V (Termination with Recoupment) includes -  termination from bonus eligibility would occur if he failed to extend within 30 days of return from an inactive status for anytime served in the ING.
   
2.  His Official Military Personnel File includes a DA Form 5435 (Statement of Understanding – The Selected Reserve Montgomery GI Bill (MGIB) prepared during the applicant's enlistment processing.  It shows the applicant acknowledged he must contract to serve at least 6 years in the Selected Reserve to qualify for the Selected Reserve MGIB.
   
3.  The applicant enlisted in the IDARNG on 27 March 2007, for a period of 6 years.  On 11 August 2009, he entered IADT and served until he was honorably released from active duty (REFRAD) on 2 October 2009.

4.  The DD Form 214 issued upon his REFRAD confirms he completed 6 weeks IADT and was transferred to the IDARNG.  It also shows he was awarded MOS 21B (Combat Engineer). 
	
5.  On 19 November 2009, IDARNG, Headquarters, 116th Brigade Special Troops Battalion (BSTB), published Orders Number 86-02, releasing the applicant from his current assignment in the IDARNG to the ING for the period 
9 December 2009 through 8 December 2011.  It also issued Order# 35-01, dated 20 December 2011, which released him from the ING to his IDARNG unit on 9 December 2011.

6.  IDARNG, MFR, dated 8 September 2012, shows the Commander, Charlie Company, 116th BSTB, stated:
   
   a.  IDARNG unit officials received an email from the G1, Education and Incentives, dated 21 August 2012, asking if the applicant had reenlisted within the 30-day limit after his return from the ING;
   
   b.  after contacting the applicant, it was identified he did not sign an extension and at that time notification was given that the action would be taken to terminate and recoup the applicant's bonus from the date he entered the ING;
   
   c.  it was the commander's belief that the applicant did not fully understand the timeframe he needed to follow to maintain his bonus;
   
   d.  the applicant has attended every drill and has been a viable asset to the unit since his return from the ING;
   
   e.  while it is not the responsibility of the 116th BSTB full-time staff to go through every Soldier's bonus addenda, they take steps to ensure Soldiers that enter the ING are aware of their responsibilities when being released back to the unit; and
   
   f.  for all of these reasons, the commander requests the applicant receive the bonus without termination or recoupment.

7.  On 26 March 2014, the applicant was honorably discharged from the IDARNG.  The National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) shows he completed 6 years of service for the period covered from 27 March 2008 through 26 March 2014; 4 years of service creditable for retired pay; and he served in the ING from 9 December 2009 to 8 December 2011.

8.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, dated 6 November 2014.  It shows the Chief recommended approval of the applicant's request to retain his incentive, to terminate the NPSEB recoupment action, and to reimburse him all funds previously collected, based on the following:

	a.  in a sworn statement, dated 28 October 2012, the Soldier (applicant) states he informed his recruiter of a pending mission trip with his church of affiliation.  He states he was informed his participation in the mission would not be a problem or affect his bonus or time of service.  Within 2 days of returning from the mission, he followed his leadership's guidance by informing them of his return and desire to continue his service.  The applicant indicates he was told to attend Drill in January 2012 and everything would be taken care of.

	b.  The applicant indicates he followed up with various personnel in March/April 2012 on more than one occasion, but did not press the issue because he was informed the situation was being looked into.  In August 2012, he was contacted regarding signing an extension related to the time he served in the ING.  This request should have been made by personnel upon the applicant's return to an active status.  As a result of an administrative error, the required documentation was never completed or submitted for action.  This is due to circumstances beyond the applicant's control and no fault of his own.

	c.  The applicant signed the NGB Form 600-7-1-R-E on 27 March 2008.  Section III of the addendum shows the bonus payments were to be paid in two parts: 50% upon completion of IADT and the remaining balance on his 26th month anniversary.  The applicant received the initial $10,000.00, but the balance was cancelled along with the recoupment of a prorated amount of the initial payment due to the Soldier not extending for the required amount of time within the allotted timeframe.  An exception to policy request was submitted by the IDARNG for the applicant to retain the $20,000.00 NPSEB; but the request was denied by the NGB, HRM-I, on 14 March 2014.

	d.  Recommend the applicant retain the initial payment without recoupment of funds previously received by Soldier and reimbursement of any funds already collected.  Currently there is no evidence that shows anything other than an administrative error was cause for the chain of events that took place relating to this issue.  The regulation indicates incentives may be subject to recoupment.  This implies discretion can be given when considering the circumstances surrounding individual cases.

9.  On 7 November 2014, the applicant was forwarded a copy of the advisory opinion to submit comments or rebuttal.  No response was received.

10.  National Guard Regulation 614-1 (Inactive Army National Guard) provides prescribes policies and procedures for enlisting Soldiers into the ING, effective management of Soldiers in the ING, and transfer of Soldiers into and out of the ING.  Paragraph 2-21b states Soldiers transferred to the ING who transfer to active status and fill an existing vacancy in the Selected Reserve authorizing the Soldier's grade and MOS in a bonus authorized unit or a bonus authorized MOS may have their previously suspended participation in the SRIP reinstated. Within 30 days of returning to active status, the Soldier must extend their enlistment or reenlistment agreement for the period of time equal to or greater than the time served in the ING.  This will allow the Soldier to serve out the full incentive contract period in the Selected Reserve.  A Soldier who does not comply with this requirement will be terminated from the SRIP Incentive Program and may be subject to recoupment of incentives previously received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to terminate recoupment of the initial half of NPSEB payment has been considered and found to have merit.

2.  The available evidence shows the applicant was authorized a $20,000 NPSEB for 6 years of service in a critical skill MOS with the IDARNG, as stipulated in his ARNG contract.  He was paid the initial amount of $10,000 upon completion of IADT.  The second half of his NPSEB came due on his 36th anniversary month of his date of enlistment (27 March 2008); however he entered the ING from 9 December 2009 to 8 December 2011, entering a period of non-availability for 2 years.  As a result, the second half of his NPSEB was not processed or paid to him on 26 March 2011, his 36th month anniversary.

3.  By regulation, upon return to active service from the ING, a member must extend their enlistment, the time equal to the time served in the ING within 30 days of their return to an active status to allow the Soldier to serve out the full incentive contract period in the Selected Reserve.  A Soldier who does not comply with this requirement will be terminated from the SRIP Incentive Program and may be subject to recoupment of incentives previously received.


4.  The evidence of record also shows that upon completion of the applicant's time spent in the ING, he immediately returned to active service on 9 December 2011 and continuously served until he was honorably discharged from the IDARNG on 26 March 2014.  His NGB Form 22 confirms he completed 6 years total service of which 4 years was creditable towards retired pay.  Therefore, he did not satisfy or fulfill his 6 year contractual obligation and was not authorized or paid the second half of his NPSEB.

5.  The NGB official in this case opined unit personnel should have taken action to request the applicant extend his service in the IDARNG upon his return from the ING within 30 days, as required by regulation.  Accordingly, an administrative error occurred and the applicant should not be penalized for actions beyond his control and of no fault of his own.

6.  While the applicant did not sufficiently serve out his total contractual obligation to receive his total NPSEB in the amount of $20,000.00, given the administrative error in this case and his completion of four years active service in the IDARNG, more than half of his contractual obligation, he should retain his initial NPSEB $10,000.00 payment, recoupment action should be terminated, and he should be reimbursed any monies previously paid as a result of the recoupment.

7.  Finally, the applicant indicates he lost entitlement to the MGIB.  However, he does not provided any evidence of this action.  Further, his ability to use MGIB benefits is not within the purview of the ABCMR.  It is a function maintained by the Department of Veteran Affairs.  Accordingly, any questions related to this matter must be resolved through that agency.

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 Department of the Army and State Army National Guard records of the individual concerned be corrected by showing the Army National Guard terminated his Non-Prior Service Enlistment Bonus recoupment action, allowing the applicant to retain the initial $10,000.00 payment, and reimbursing him all monies previously collected as a result of the recoupment.




      __________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)                                         AR20140004957



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ABCMR Record of Proceedings (cont)                                         AR20140004957



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