BOARD DATE: 13 September 2016 DOCKET NUMBER: AR20150015251 BOARD VOTE: ___x_____ __x______ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 September 2016 DOCKET NUMBER: AR20150015251 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 records of the individual concerned be corrected by showing an exception to policy was approved by the National Guard Bureau and the applicant was, and is, fully eligible to receive the $20,000 Non-Prior Service Enlistment Bonus he contracted for on 27 December 2007. ___________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. BOARD DATE: 13 September 2016 DOCKET NUMBER: AR20150015251 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, an exception to policy (ETP) to retain his eligibility for payment of the second portion of the Non-Prior Service Enlistment Bonus (NPSEB) he contracted for under the Army National Guard (ARNG) "Active First" Enlistment Option Program, in the amount of $20,000, which he contracted for at the time of his enlistment in the Idaho Army National Guard (IDARNG). 2. The applicant states, in effect, that he enlisted under the ARNG "Active First" Program and now requests to be paid the second portion of his enlistment bonus. He applied for an ETP; however, it was denied by the NGB, citing the fact that he enlisted under the program and was accessed on active duty. The program entitled him to a $60,000 incentive; $40,000 was payable throughout an active duty tour (Regular Army (RA)) and the remainder ($20,000) was payable after he resumed his service in the ARNG. He is confused as to the true meaning of the program, he has done everything he was supposed to do, and he feels he is being taken advantage of. 3. The applicant provides: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 27 December 2007 * DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 27 December 2007 * NGB Form 600-7-1-R-E (Annex E to DD Form 4 – NPSEB Addendum – ARNG of the United States), dated 27 December 2007 * a memorandum from the NGB to the State Incentive Manager, IDARNG, dated 1 September 2015, subject: Request for ETP for NPSEB (Applicant) 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 ARNG and IDARNG on 27 December 2007 for a period of 8 years. In accordance with the applicant's enlistment, his recruiter prepared a DD Form 1966 series document. a. Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), section a, shows the applicant enlisted for, in pertinent part, "Active First $40,000 (48 Month Enlistment), Non-Critical Skill Projected Vacancy, [$20,000] 6-year, 8 years, 0 weeks [in military occupational specialty (MOS)] 11B1[0] [Infantryman]." b. Section VI (Remarks) shows "I am enlisting in the National Guard Active First Enlistment Option under the 48-month Active First enlistment option. I understand that I will serve 48 months on active duty after completion of IADT [initial active duty training] and will serve the remainder of my MSO [military service obligation] as a drilling member in the National Guard." It also shows an Active First control number of #AF2008-507. c. The applicant and his recruiter signed the document on 27 December 2007. 3. Additionally, the applicant's recruiter prepared a Guard Annex form (Enlistment/Reenlistment Agreement – ARNG – Service Requirements and Methods of Fulfillment), which shows in: a. Section III (Explanation to Applicant) that the applicant's initial enlistment was as an NPS member. Subparagraph k shows, "I understand that I will receive the following incentive under this option: (1) I will receive a $40,000.00 enlistment bonus under this option, which I will receive after arrival at my first permanent duty station in the Regular Army. Initial payment will be a lump sum in the amount of $10,000.00 and the remaining payments will be made in annual installments on my enlistment anniversary date." b. The applicant and an Army counselor signed the form on 27 December 2007. 4. NGB Form 600-7-1-R-E shows the applicant enlisted into a non-critical skill under the 6x2 or 8x0 enlistment option and would receive an NPS Non-Critical Skill Bonus (50/50 payment). a. Section III (Payments) shows he would receive a total enlistment bonus in the amount of $20,000.00, less taxes. b. He would receive his first bonus payment of 50%, less taxes, upon completion of IADT and being awarded his MOS. c. He would receive the second and final payment of 50% on the 36-month anniversary of his date of enlistment. d. The applicant and service representative signed the form on 27 December 2007. 5. Orders 112-3065, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia on 21 April 2008, awarded the applicant MOS 11B10, effective 6 June 2008. 6. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 19 February 2008, was honorably released from active duty training on 6 June 2008, and was awarded MOS 11B. 7. Orders 424-047, issued by the IDARNG on 13 June 2008, honorably discharged the applicant from the ARNG, and as a Reserve of the Army, effective 6 June 2008. 8. An NGB Form 22 (Report of Separation and Record of Service) shows he enlisted on 27 December 2007 and he was honorably discharged from the IDARNG and as a Reserve of the Army on 6 June 2008, under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-35b(3), for enlistment in another component of the U.S. Armed Forces. 9. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the RA on 7 June 2008 for a period of 4 years. It further shows his enlistment documentation included an "Active First Annex, AF Annex B"; however, this annex was not available for review in his records. 10. A DD Form 214 shows he entered active duty on 7 June 2008, was honorably released from active duty (REFRAD) on 6 June 2012 based on completion of required active service, and he was transferred to a Colorado ARNG (COARNG) unit. Upon his REFRAD, he had completed 4 years of net active service this period. 11. The applicant initiated and was approved for an interstate transfer from the COARNG back to the IDARNG, effective 4 August 2013. 12. He provides a memorandum from the NGB, addressed to the State Incentive Manager, IDARNG, dated 1 September 2015, subject: Request for ETP for NPSEB (Applicant). The official notes the following: a. Reference: ARNG Selected Reserve Incentive Program (SRIP) Policy Guidance for Fiscal Year 2007 (Policy Number 07-06) effective 10 August 2007. b. An ETP to retain the $20,000 NPSEB is disapproved for the discrepancy: that he enlisted under the Active First program and was accessed into the Active Army. Receipt of an NPSEB violates Title 37 United States Code (USC), section 308(c). c. Contract/agreement details: * State enlisted/accessed: ID; UIC: YLHAA * Date of agreement/enlistment: 27 December 2007 * Contracted bonus addendum/agreement amount: $20,000 * Contracted (area of consideration (AOC)/MOS: 11B; Current AOC/MOS: 13D (there is no evidence in the applicant's record that shows he held another MOS besides 11B) d. The ARNG does not have the authority to approve this request. The State Incentive Manager will terminate the incentive with recoupment effective the contract start date. e. The applicant may file a claim with the ABCMR in accordance with Army Regulation 15-185, if there is belief that an error or injustice still exists. 13. Orders 324-017, issued by the IDARNG on 20 November 2015, honorably discharged the applicant from the ARNG and as a Reserve of the Army, effective 26 December 2015. 14. An NGB Form 22 confirms he was honorably discharged on 26 December 2015, by reason of expiration term of service (ETS). He completed 4 years, 3 months, and 18 days of prior active federal service and 8 years of total service for pay. 15. Defense Finance and Accounting Service (DFAS) records show he enlisted in the RA on 7 June 2008 and received an enlistment bonus of $40,000. DFAS records further show he was released from active duty on 6 June 2012, a total of 4 years after his entry. DFAS shows no other bonus monies received. REFERENCES: 1. An NGB memorandum dated 2 October 2007, subject: ARNG "Active First" Enlistment Option Pilot Program (NGB ARN Policy Memo #07-033), outlines the framework and policy governing the program. a. The Active First enlistment option is to allow ARNG the ability to offer a tour of active service followed by a Selected Reserve tour in the ARNG. The period of the pilot program was from 1 October 2007 to August 2013. The period of active duty service will be not less than 30 and no more than 48 months. Applicants enlist for an 8 year service obligation to be served in the Active Army and ARNG respectively. Soldiers that enlist for the Active First enlistment option will be contractually obligated to serve the remainder of their MSO in the ARNG, if they elect not to re-enlist in the Active Army. b. It also shows, in pertinent part, that depending of the length of the Active Army enlistment, the Soldier will receive the Active First bonus after completion of in-processing at their first Active Army unit. For a 48 month enlistment that applicants will receive a bonus of $40,000 with an initial payment of $10,000 with the remaining payments made in annual installments at their Active Army enlistment anniversary date. c. Upon completion of the initial Active Army enlistment, any unfulfilled period of the Soldier's statutory MSO not served in the Active Army must be served in a modified table of organization and equipment (MTOE)/table of distribution and allowances (TDA) unit in the ARNG. If the Soldier is otherwise qualified and subject to applicable law and regulation, the Soldier will receive a unit "Active First" affiliation bonus upon his transition from the Active Army to their ARNG TPU. If the Soldier elects to re-enlist in the Active Army, that portion of the "Active First" annex which requires the unfulfilled MSO to be served in an ARNG MTOE/TDA unit will be voided. 2. An "Armywide News" article, dated 25 January 2008, discusses the "Active First" program with the then-Secretary of the Army and the Director of the ARNG, who stated the program had three-phases. First, Recruits joined their hometown ARNG unit, which prepared them for the second phase: basic training and an active Army tour. After finishing their active-duty commitments, the Soldiers returned [phase three] to the ARNG to resume their 8-year military obligation. In addition, the program offered a $40,000 bonus for troops who signed up for four years of active duty and those "Active First" recruits who returned to the National Guard after their active-duty commitments received another $20,000. 3. Title 37, U.S. Code, section 308c, outlines criteria for special pay as it relates to bonuses for affiliation or enlistment in the Selected Reserve: a. The Secretary concerned may pay an affiliation bonus to an enlisted member of an armed force who has completed fewer than 20 years of military service; and executes a written agreement to serve in the Selected Reserve of the Ready Reserve of an armed force for a period of not less than three years in a skill, unit, or pay grade designed after being discharged or released from active duty under honorable conditions. b. The Secretary concerned shall designate the skills, units, and pay grades for which an affiliation bonus may be paid. Any skill, unit, or pay grade so designated shall be a skill, unit, or pay grade for which there is a critical need for personnel in the Selected Reserve of the Ready Reserve of an armed force, as determined by the Secretary concerned. c. The Secretary concerned may pay an accession bonus to a person who has not previously served in the armed forces or has served in the armed forces, but was released from such service before completing the basic training requirements of the armed force of which the person was a member and the service was characterized as either honorable or uncharacterized; and executes a written agreement to serve as an enlisted member in the Selected Reserve of the Ready Reserve of an armed force for a period of not less than three years upon acceptance of the agreement by the Secretary concerned. d. The amount of a bonus under subsection (a) or (c) may not exceed $20,000. DISCUSSION: 1. The applicant's request for an ETP to retain eligibility for the second portion of his NPSEB bonus that he contracted for under the ARNG "Active First" Program, in the amount of $20,000, was carefully considered. 2. The evidence of record shows he enlisted in the ARNGUS and IDARNG under the "Active First" Program for MOS 11B. He completed IADT and was awarded MOS 11B. He enlisted in the RA on 7 June 2008, served honorably for a period of 4 years, and transferred to a COARNG unit without a break in service. He then transferred back to the IDARNG. 3. He served the remainder of his MSO in the ARNG, as he contracted for, and was honorably discharged by reason of ETS on 26 December 2015. He served a total of 8 years. 4. The evidence of record shows he was paid the $40,000 bonus for his service in the RA. However, the ARNG failed to authorize payment of the additional bonus of $20,000 following his return to the ARNG for a Non-Critical Skill Projected Vacancy in MOS 11B, as outlined in the terms of his initial ARNG enlistment contract. 5. As evident by the NGB policy memorandum and the Armywide News article, recruits that enlisted in the "Active First" Program were entitled to an affiliation bonus upon their return to the ARNG. He contracted for this bonus ($20,000) in good-faith, served the requisite 4-year period in the RA, and returned to the ARNG upon his REFRAD. He fulfilled the remaining 4 years of his MSO in the ARNG. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015251 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015251 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2