IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20150007743 


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 correction of his records to show he is authorized to retain his Non-Prior Service Enlistment Bonus (NPSEB) offered at the time of his enlistment in the Connecticut Army National Guard (CTARNG) on 30 September 2009.

2.  The applicant states:

* his NPSEB was cut in half due to no fault of his own
* he joined the CTARNG on 30 September 2009
* he was ready to ship out on his projected date
* there was a problem with his paperwork and he did not ship on his original date
* in keeping with good faith, he participated in the ARNG Recruit Sustainment Program every month while waiting to ship

3.  The applicant provides an approved request for exception to policy (ETP) to retain his NPSEB, dated 18 April 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CTARNG on 30 September 2009 for a period of 8 years.  His NPSEB Addendum shows he enlisted for a bonus in the amount of $10,000.00.

2.  Section IV (Payments) of the NPSEB Addendum states, "I understand that I will forfeit 50% of the total bonus amount if I do not ship on the original scheduled IADT [initial inactive duty training], STO [Standard Training Order] 1 or STO 2 ship date.  Ship Date:  6 Jan [January] 2010."

3.  He was ordered to IADT with a reporting date of 3 August 2010 and he was released from active duty on 12 January 2011.

4.  He provided a memorandum from the National Guard Bureau (NGB), dated 18 April 2103, subject:  Request for ETP for NPSEB (Applicant), which states:

	a.  The request for an ETP to retain the $10,000.00 NPSEB is approved.

	b.  The applicant contracted for the critical unit identification code (UIC) option; however, the UIC cannot be validated as an authorized critical UIC which violates ARNG Selected Reserve Incentives Program (SRIP) Policy Number 
07-06.

	c.  The applicant's contract/bonus addendum contains signature dates that are not the same for the applicant and enlisting official which violates ARNG SRIP Policy Number 07-06.

	d.  A review of the agreement/addendum supports an incentive being offered at the time of the agreement/contract.

	e.  The applicant accepted an incentive offer in good faith and has otherwise fulfilled the obligations under the contract as of the date of this request.  Therefore, withholding payment of this incentive would be against equity and good conscience and contrary to the best interest of the Army.

5.  He also provided a memorandum from the CTARNG Incentive Manager, dated 22 April 2013, which states:

* your ETP request has been reviewed by NGB
* your ETP request was approved
* this has been annotated in your personnel records and the issue is considered resolved
* any remaining payments will be made in accordance with payment schedule 

6.  He was advanced to specialist/E-4 effective 11 May 2013.

7.  His records also contain a memorandum from NGB, dated 29 December 2014, subject:  Second Review Request for ETP for NPSEB (Applicant), which states:

	a.  The request for an ETP to retain the $10,000.00 NPSEB is denied.  The State Incentive Manager will terminate with recoupment.

	b.  The applicant's bonus control number (BCN) was requested after the date of enlistment which violates ARNG SRIP Policy Number 07-06.

	c.  The applicant contracted for the critical UIC option; however, the UIC cannot be validated as an authorized critical UIC which violates ARNG SRIP Policy Number 07-06.

	d.  The applicant's contract/bonus addendum contains signature dates that are not the same for the applicant and enlisting official which violates ARNG SRIP Policy Number 07-06.

	e.  The applicant failed to ship in accordance with his contracted ship date which violates ARNG SRIP Policy Number 07-06.

	f.  A review of the applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) and DD Form 1966 (Record of Military Processing – Armed Forces of the United States) does not support an incentive being offered at the time of enlistment.  The BCN was requested after the date of entry; therefore, NGB cannot approve the ETP and the State Incentive Manager will terminate effective the contract starting date.

8.  Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), section 0201 (General Provisions), provides that a member of the Uniformed Services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202.

9.  Department of Defense Financial Management Regulation, volume 7A, chapter 2, section 0202 (Repayment and Non-repayment Conditions), provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following:

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his NPSEB bonus was cut in half due to no fault of his own.

2.  The evidence shows:

	a.  He signed an NPSEB Addendum for a bonus in the amount of $10,000.00 on 30 September 2009.  He had a contracted ship date of 6 January 2010.

	b.  He failed to ship on his contracted ship date.

3.  Although he failed to ship by 6 January 2010 in accordance with his NPSEB Addendum as noted in the second review by NGB, the first NGB decision to approve his request for ETP did not cite this as an issue.

4.  The applicant states he did not ship on his original date of 6 January 2010 due to a problem with his paperwork, but neither he nor NGB address what the problem was.  It doesn't seem reasonable to hold him accountable for an administrative process he had no control over.

5.  Further, the first NGB decision to approve his request for an ETP stated, "A review of the agreement/addendum supports an incentive being offered at time of agreement/contact," contrary to the second review by NGB.

6.  It seems unjust for NGB to terminate his NPSEB with recoupment over 1 year and 8 months after approving an ETP for him to retain it.  Therefore, notwithstanding the second NGB decision 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 by showing he was granted an ETP to retain the NPSEB and paying him an NPSEB in the full amount of $10,000.00 under the payment terms of his NPSEB Addendum.

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 ARNG records of the individual concerned be corrected by:

	a.  showing the Department of the Army authorized him to receive the bonus as agreed to in his NPSEB Addendum, dated 30 September 2009, and

	b.  paying him the full amount of $10,000.00 under the payment terms of his NPSEB Addendum as a result of the above correction.



      _______ _   _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)                                         AR20150007743



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ABCMR Record of Proceedings (cont)                                         AR20150007743



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