RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            24 February 2004  
	DOCKET NUMBER:   AR2003087602

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Lawrence Foster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that she be paid the second half of her affiliation bonus as an exception to policy.

2.  The applicant states that, while on active duty serving in military occupational specialty (MOS) 95C (Corrections Noncommissioned Officer), she was under the impression that she had a security clearance.  When she separated from active duty, she signed up with a military police unit with the Army National Guard (ARNG) and was granted an affiliation bonus.  Although the unit had no positions for 95Cs, she was accepted for a 95B (Military Police) position.  It was explained to her that she would be awarded MOS 95B after on-the-job training.  She worked as a 95B immediately upon entry into the unit but was not asked to fill out a request for a security clearance until January 2000.  She had to complete the paperwork three separate times, once because the paperwork was lost and once because additional information was needed.  

3.  The applicant provides a statement from the Wisconsin ARNG (WIARNG) Mobilization Plans Officer; her DD Form 214 (Certificate of Release or Discharge from Active Duty); active duty separation orders dated 1 May 1998 with an amendment dated 13 May 1998; a Headquarters, U. S. Army Field Artillery Center and Fort Sill memorandum dated 13 May 1998; a DA Form 5691-R (Request for Reserve Component Assignment Orders) dated 14 May 1998; a  DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States) dated 14 May 1998; a DA Form 7249-R (Certificate and Acknowledgement of Service Requirements and Methods of Fulfillment for Individuals Enlisting or Transferring into Units of the Army National Guard upon REFRAD/Discharge from Active Army Service); a DA Form 5261-3-R-E (Selective Reserve Incentive Program – Affiliation Bonus Addendum); and a recruit eligibility printout.

4.  The applicant also provides a diploma from the Corrections Specialist Course dated 10 November 1995; one page of a Standard Form 86 (United States of America Authorization for Release of Medical Information) dated 15 January 2000; a Primary Leadership Development Course (PLDC) certificate of completion and a PLDC DA Form 1059 (Academic Evaluation Report) dated     18 August 2001; a certificate of completion from the Military Police Investigator Course dated 25 July 2001; a memorandum from the National Guard Bureau (NBG) dated 18 December 2002; and a memorandum from the State of Wisconsin, Department of Military Affairs dated 17 January 2003.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Delayed Entry Program on 26 August 1994.  She enlisted in the Regular Army on 13 July 1995.  She completed basic training and advanced individual training and was awarded MOS 95C.  

2.  On 14 May 1998, the applicant enlisted in the ARNG for the remainder of her military obligation (4 years, 1 month, and 13 days) and voluntarily accepted assignment to the 32d Military Police (MP) Company of the ARNG in assignment MOS 95B.  Her DA Form 5261-3-R-E indicated she was being assigned to a unit vacancy in the Selected Reserve which was authorized the grade and MOS she currently held or that service grade and MOS substitution rules applied.  

3.  The applicant would be paid an affiliation bonus.  She would receive an    initial payment of one-half of the bonus amount on completion of the DA Form 5261-3-R-E and assignment to the Selected Reserve unit.  The remainder of the bonus would be paid on the sixth anniversary date of her military service obligation.  In Section VI (Termination), she acknowledged that her entitlement to an affiliation bonus would be terminated should any of several conditions occur before completion of her statutory military service obligation including, in paragraph 3, "Fail to become MOS qualified within 12 months, if required to perform on-the-job training, or within 24 months if required to attend a service school, following reassignment to a duty position authorized an MOS for which I am not qualified or other than that for which I have herein contracted.  This could result in a recoupment action as explained in section VII below."

4.  She was released from active duty on 12 July 1998 in pay grade E-4 with a reserve obligation termination date of 25 August 2002.

5.  The applicant completed the MP Investigator Course on 25 July 2001.

6.  The WIARNG Mobilization Plans Officer stated that the applicant joined the 32d MP Company, WIARNG in July 1998 as a 95C.  In accordance with her affiliation bonus contract, she had 12 months to become qualified in MOS 95B.  Upon her entry into the 32d MP Company, the readiness noncommissioned officer (NCO) requested she be awarded MOS 95B.  The request took 18 months for approval and at that time the readiness NCO was notified the applicant needed a confidential security clearance in order to be awarded the MOS.  There was much confusion over the applicant's security clearance.  She graduated from and was awarded the additional skill identifier for the Military Police Investigation course.  That course requires a confidential (secret pending) security clearance.  The applicant completed an application for a security clearance in 2000 but her clearance was delayed several times.  She was granted an interim security clearance around August 2002.  

7.  [Corrected] WIARNG Orders 253-002 dated 10 September 2002 promoted the applicant to Sergeant, E-5 with a date of rank and effective date of 19 August 2001.  These orders withdrew her primary MOS 95C10 and awarded her primary MOS 95B20 and secondary MOS 95C20.

8.  On 18 December 2002, NGB disapproved a request to pay the applicant the second half of her affiliation bonus, citing Title 37, U. S. Code.

9.  The applicant's normal expiration term of service (the expiration of her military reserve obligation date) was 25 August 2002.  She is being retained in the service for the convenience of the Government as a result of STOP LOSS.  As of 28 January 2004, she is still in the ARNG and is due to deploy soon.

10.  Title 37, U. S. Code, section 308e provides that the Secretary concerned may pay a bonus for reserve affiliation to any person who is serving on active duty, has 180 days or less remaining of his active duty obligation, and upon discharge or release from active duty upon the completion of the active duty obligation will have a reserve service obligation.  To be eligible to receive the affiliation bonus, a person must, in part, hold and be qualified in a military specialty designated for the purposes of this section.  Section 308e shall be administered under regulations prescribed by the Secretary of Defense for the armed forces under the jurisdiction of the Secretary of Defense.  

11.  Department of the Army Pamphlet 621-1 (Military Occupational Classification and Structure), dated 31 March 1999, states that initial award of MOS 95B requires a security clearance of confidential and that formal training (completion of the MOS 95B course conducted under the auspices of the U. S. Army Military Police School) is mandatory.  The regulation it superseded, Army Regulation  611-201 (same title), dated 26 June 1995, also required a security clearance of confidential and formal training for initial award of MOS 95B.  

12.  Department of the Army Pamphlet 621-1 states that initial award of MOS 95C requires, in part, that no information be in the individual's Provost Marshal Office, Intelligence Office, Military Personnel Record Jacket, or medical records that would prevent the granting of a security clearance.

13.  Department of the Army Pamphlet 351-4 (U. S. Army Formal Schools Catalog) provides that Active Army or Reserve Component enlisted military police, holding primary MOS 95B, with certain qualifications, or MOS 95C, with certain qualifications, may attend the Military Police Investigator course.  No security clearance is required.

DISCUSSION AND CONCLUSIONS:

1.  There appears to be a clear case of an injustice and Government error in this case.

2.  Even if the applicant was unaware of her security clearance status, the official who enlisted her in the ARNG should have verified her security clearance status before enlisting her for assignment in a unit requiring she hold MOS 95B, which in turn required she have at least a confidential clearance.  

3.  Once the applicant arrived in the 32d MP Company, the readiness NCO should have verified her security status prior to requesting she be awarded MOS 95B.  Attendance (in 2001) at the Military Police Investigator course was not verification that she held a clearance since a clearance is not required to attend the course.

4.  In addition, Government officials failed to take into account another factor affecting the applicant's ability to become qualified in MOS 95B.  Formal school training is required.  The government regulation does not make exceptions for soldiers currently holding MOS 95C.  It appears the applicant was erroneously informed she could become 95B qualified through on-the-job training.  It appears the applicant is still technically not qualified to hold MOS 95B.

5.  Clearly, the above errors have created an injustice by preventing the applicant from becoming eligible to be paid the second half of her affiliation bonus.  The errors occurred through no fault of the applicant and do not appear to have hurt her performance of 95B duties (albeit evidently unauthorized).  She was recommended for award of 95B when she entered the unit.  She was recommended for promotion in MOS 95B and was promoted to Sergeant, E-5 in MOS 95B in August 2001.

6.  Title 37, U. S. Code, section 308e governs the payment of the Selected Reserve affiliation bonus.  However, the only statutory requirement is that the individual hold and be qualified in a military specialty designated for the purposes of this section.  Armed forces regulations actually administer section 308e.

7.  The applicant's DA Form 5261-3-R-E, Section VI, paragraph 3 informed her that her entitlement to an affiliation bonus would be terminated if she failed to become MOS qualified within 12 months if required to perform on-the-job training or within 24 months if required to attend a service school following her assignment to the 32d MP Company.

8.  The applicant's DA Form 5261-3-R-E, Section VI, paragraph 3 should be amended, as an exception to policy, to read, "Fail to become MOS qualified prior to the expiration of my statutory military service obligation (or prior to my separation, if involuntarily extended for the convenience of the Government) following reassignment to a duty position authorized MOS 95B.  Successful on-the-job training as determined by the unit will satisfy the training requirement for award of MOS 95B as an exception to the formal training prerequisite required by Army Regulation 611-201."

BOARD VOTE:

__rvo___  __mvt___  __lf____  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 records of the individual concerned be corrected by amending her DA Form 5261-3-R-E, Section VI, paragraph 3, as an exception to policy, to read, "Fail to become MOS qualified prior to the expiration of my statutory military service obligation (or prior to my separation, if involuntarily extended for the convenience of the Government) following reassignment to a duty position authorized MOS 95B.  Successful on-the-job training as determined by the unit will satisfy the training requirement for award of MOS 95B as an exception to the formal training prerequisite required by Army Regulation        611-201."

2.  That she be paid the second half of her affiliation bonus after the above correction is made.

		__Raymond V. O'Connor_
		        CHAIRPERSON

INDEX

CASE ID	AR2003087602	
SUFFIX		
RECON		
DATE BOARDED	20040224	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.