BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160002238 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: 27 July 2017 DOCKET NUMBER: AR20160002238 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 Army National Guard records of the individual concerned be corrected by: a. showing the applicant's request for an exception to policy to retain the $5,000.00 reenlistment bonus was approved and b. cancelling the recoupment action, if any, as a result of the above correction and returning to him any monies that have been recouped. ___________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: 27 July 2017 DOCKET NUMBER: AR20160002238 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 an exception to policy to retain a $5,000.00 reenlistment bonus. 2. The applicant states: a. He contracted for a $5,000.00 enlistment bonus in military occupational specialty (MOS) 35F (Intelligence Analyst) on 9 February 2014 with an enlistment contract starting date of 14 November 2014. His unit at the time failed to produce a command-directed reassignment order reassigning him into a new MOS position. The command informed him he would be transferred into a new position that they needed filled via a command-directed move. If the reassignment order had been completed, it would not have affected his bonus. b. He attended training for MOS 25B (Information Technology Specialist) and was awarded that MOS effective 26 September 2014. Prior to the unit directive to move him into MOS 25B, he was selected for promotion against an MOS 25B required position elsewhere. He asserts he did not take actions that would have terminated his bonus. It was his unit's failure to follow procedure that violated the Selected Reserve Incentive Program (SRIP). c. He requests continued receipt of his bonus due to administrative oversights that were no fault of his own. His former commander has written a memorandum accepting responsibility for the change in MOS and, therefore, he believes he has not violated his bonus contract. 3. The applicant provides: * February 2014 Oath of Extension of Enlistment or Reenlistment * Annex R (Extension/Reenlistment Bonus Addendum) * March 2014 duty appointment * October 2014 MOS orders * November 2014 correction to his extension document * January 2015 promotion orders * April 2015 exception to policy request and recommendation * November 2015 denial letter CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Idaho Army National Guard (IDARNG) on 14 November 2008. He entered active duty for training on 24 March 2009 and completed required training for award of MOS 35F (Intelligence Analyst). 2. He was honorably released from training on 15 October 2009. He was promoted to specialist (SPC)/E-4 while assigned to Headquarters and Headquarters Company (HHC) and/or Company B, 145th Support Battalion, Lewiston, ID. 3. He entered active duty on 17 September 2010 and served in Iraq. He was honorably released from active duty on 29 October 2011. 4. On 9 February 2014 while assigned to the 145th Support Battalion in MOS 35F, he executed a 3-year extension in the IDARNG. With his extension, he also signed Annex R (Reenlistment/Extension Bonus Addendum, ARNG). 5. In the Addendum, which was assigned a bonus control number and was signed by him and a witnessing official, the applicant acknowledged that: * if he is a Non-Duty MOS Qualified (DMOSQ) at the time of extension, he must become DMOSQ within 24 months from the contract start date * he is reenlisting/extending DMOSQ in MOS 35F for 3 years as the primary position holder in the rank/grade commensurate with this position * he is reenlisting/extending for 3 years and will receive a total bonus of $5,000.00 * the bonus would be terminated with recoupment if he voluntary changed his reenlistment bonus MOS during the contractual obligation * he acknowledged his understanding of the termination with or without recoupment of the bonus 6. On 27 February 2014, IDARNG published Orders 058-050 promoting him to sergeant (SGT)/E-5 and awarding him primary MOS 35F2O effective 27 February 2014. He was assigned to Company A, 116th Brigade Special Troops Battalion. 7. On 28 March 2014, IDARNG published Orders 087-027 reducing him from (SGT)/E-5 to SPC/E-4 (voluntary reduction) and awarding him primary MOS 35F1O effective 4 March 2014. He was assigned to HHC, 145th Support Battalion. 8. He attended training for MOS 25B from 26 July 2014 to 5 September 2014. On 15 October 2014, Headquarters, 145th Support Battalion, published Orders 288-01 awarding him primary MOS 25B1O and secondary MOS 35F1O effective 26 September 2014. 9. In April 2015, he submitted a request for an exception to policy through his chain of command to the National Guard Bureau (NGB) to retain the $5,000.00 bonus. a. His company commander stated he had every intention of ensuring the (administrative requirements) for the applicant were properly completed. The company was preparing for a unit deployment and were short school trained personnel in MOS 25B. The commander sent him to school and the applicant was subsequently awarded MOS 25B. Prior to the paper work being completed showing it was a command-directed MOS change, the applicant was selected for a position in the State Joint Forces Headquarters. He concludes by saying the applicant complied with his intentions and supported the needs of the unit as it prepared to deploy. The commander contends it will be a disservice to the applicant if his reenlistment bonus funds are recouped. b. The IDARNG Director of Personnel and Manpower recommends an exception to policy to allow the applicant to retain his reenlistment bonus. The applicant contracted for a $5,000.00 enlistment bonus in MOS 35F on 9 February 2014 with a contract starting date of 14 November 2014. The Soldier's unit failed to produce a command-directed reassignment order, moving the Soldier to a new MOS position. The commander had informed the Soldier he would transfer him into this new position that he needed filled via a command-directed reassignment. It was felt the command-directed reassignment would not affect the applicant’s bonus. c. The applicant attended MOS 25B training and was awarded that MOS effective 26 September 2014. Prior to the command-directed reassignment moving him to the MOS 25B position, he was selected for promotion to an MOS 25B position elsewhere in the state. The Soldier did not take action that would have met termination requirements. The unit's failure to follow procedures caused the SRIP violations. The State of Idaho requests an exception to policy for relief from recoupment action due to no fault of the applicant. 10. On 30 November 2015, NGB disapproved the applicant’s exception to policy to retain the $5,000.00 reenlistment bonus because the applicant is not serving in the MOS for which he contracted for due to a voluntary transfer which violates Department of Defense (DOD) Instruction 1205.21 (Reserve Component Incentive Programs), paragraphs 6.6.2 and 6.8.3. An additional service obligation is required in order to retain this incentive. He violated the DOD Instruction and the ARNG does not have the authority to approve this request. The State Incentive Manager will terminate the incentive with recoupment effective the date of transfer. 11. On 22 March 2016, the applicant extended his enlistment for 1 year, establishing his new expiration of term of service of 13 November 2018. (His ETS date had been 13 November 2017.) REFERENCES: 1. DOD Instruction 1205.21 governs the Reserve Component Incentive Programs Procedures. It states if the 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. Unless granted relief as covered in paragraphs 6.6 and 6.7, the member must refund a prorated amount to the government, if such termination is for certain reasons. a. Paragraph 6.6.2 states persons whose military specialty is changed at the convenience of the government or whose unit is inactivated, relocated, reorganized, or converted (e.g., weapons systems conversion) are entitled to continue receiving incentive payments provided they meet all other eligibility criteria, and are not separated from the Selected Reserve. b. Paragraph 6.8 states 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. Unless granted relief as covered in paragraphs 6.6 and 6.7, the member must refund a prorated amount to the government, if such termination is for selected reasons, including, subparagraph 6.8.3, moving to a non-bonus skill or unit, unless the move is required by the Reserve Component. 2. DOD 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. 3. DOD 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: 1. The applicant executed a 3-year extension in the IDARNG on 9 February 2014 with an effective date of 13 November 2014. He agreed to serve for 3 years in MOS 35F, in exchange for a $5,000.00 bonus. Shortly after his extension, he was promoted to SGT/E-5. However, he took a voluntary reduction, not a forced move as he contends, to SPC/E-4, attended training for MOS 25B, and is no longer performing in the MOS he contracted for. He was counseled during the execution of his contract and he acknowledged his understanding of the conditions that could lead to termination with or without recoupment. 2. While the documents appear to show the applicant voluntarily retrained in an MOS different from his contractual bonus MOS, his company commander and State Director of Personnel and Manpower assert it was done in good faith to meet mission requirements. The applicant extended and is still serving in the IDARNG. While the documentation does not show he changed his MOS for the convenience of the government, his chain of command affirms through written correspondence it was done for the convenience of the government and that proper documentation was not completed (which was detrimental to the applicant). There is a provision within the DOD Financial Management Regulation, volume 7A, chapter 2, that allows for a decision supporting equity and justice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002238 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002238 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2