BOARD DATE: 1 August 2017 DOCKET NUMBER: AR20160015582 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF __x______ __x______ _x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 August 2017 DOCKET NUMBER: AR20160015582 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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: a. showing the applicant's request for an ETP to retain the initial REB payment of $5,000.00 was approved and b. cancelling the recoupment action, if any, and reimbursing him any monies that may have been recouped. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to approving an ETP to allow the applicant to retain the full amount of his REB ($10,000.00). __________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: 1 August 2017 DOCKET NUMBER: AR20160015582 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 approval of an exception to policy (ETP) to retain his $10,000.00 Reenlistment/Extension Bonus (REB). 2. The applicant states he was forced to move from the Indiana Army National Guard (INARNG) to the Georgia Army National Guard (GAARNG). He moved to Georgia to continue viable civilian employment based on his military occupational specialty (MOS). He served as a Warfighter Information Network-Tactical Field Support Engineer with a civilian corporation. a. Working as a civilian in the Fort Gordon/Augusta, Georgia, geographic area and drilling with the INARNG was a financial hardship. Traveling over 700 miles one-way for drill weekends was not viable; therefore, he initiated an ARNG interstate transfer request. He states he was told he would keep his bonus even if he had to transfer to another state. Additionally, he offers his orders reassigning him to the GAARNG as evidence he would retain his bonus. The additional instructions of his transfer order state, "SRIP: Yes Termination: Yes Recoupment: No." b. Once he transferred to the GAARNG, there was not a vacant position for him in either his primary or secondary MOS in either his current grade or one grade below. This forced him into a 00F (Branch Immaterial) position while waiting for an authorized unit manning position for his specific MOS and grade. c. He maintains he is a model Soldier meeting the physical fitness standards, weapons qualification standards, and advanced schooling requirements as a distinguished honor graduate. He received his bachelor's degree and is still working to pay off his student loans. d. He maintains he should not have his bonus recouped based on his civilian employment relocation and the subsequent nonavailability of a unit manning position in his MOS and grade in the GAARNG. He further states he would understand the Board's decision if the second bonus payment was terminated prior to payment. 3. He provides: * self-authored statement * Annex E to DD Form 4 (Enlistment/Reenlistment Document) Enlistment Bonus Addendum ARNG, dated 25 January 2005 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 29 July 2014 * Orders 093-1012, dated 3 April 2015 * memorandum, dated 28 July 2016, subject: Request for ETP for REB (Applicant) CONSIDERATION OF EVIDENCE: 1. On 25 January 2005, the applicant enlisted in the INARNG for 6 years in MOS 25Q (Multichannel Transmission Systems Operator-Maintainer). In conjunction with his enlistment, he received a $6,000.00 enlistment bonus. 2. A DA Form 4836, dated 29 July 2014 shows he extended his initial enlistment for 6 years in the rank and grade of staff sergeant (SSG)/E-6. This form shows his expiration term of service (ETS) date of 24 August 2014 was adjusted to 24 August 2020. 3. He completed a National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 – REB Addendum – ARNG) in conjunction with this extension. This form shows he acknowledged understanding and agreed to the following conditions: a. Section II (Eligibility), he "must be reenlisting/extending Duty Military Occupational Specialty Qualified (DMOSQ) as the primary position holder in a Military Occupational Specialty (MOS) that matches the authorized military grade commensurate with the position for which I am reenlisting/extending…must be reenlisting/extending DMOS in MOS 25Q for 6 years." Additionally, he "must be reenlisting/extending within a Modified Table of Equipment (MTOE) or Medical Table of Distribution and Allowances (TDA) unless assigned in a deployed TDA unit…" b. Section III (Bonus Amount and Payment), "I am reenlisting/extending for the Six-Year DMOSQ REB and will receive a total REB in the amount of $10,000. My REB will be processed in two installments. The first 50 percent REB payment will be processed the day after my current ETS upon verification of my MOS and unit of assignment qualification in GIMS (Guard Incentive Management Subsystem). The second 50 percent REB payment will be processed on the fourth year anniversary of my REB contract start date provided installment 1 was previously processed." c. Section VI (Termination – With Recoupment), "I may be terminated from REB eligibility with recoupment… if I transfer within the state or IST [interstate transfer] for reasons other than those covered under Army Regulation 601-210 (Army Retention Program) and will be governed by the following: …I voluntarily transfer out of my current REB MOS into a different MOS unless otherwise authorized in this addendum. The effective date of termination is my transfer order effective date." d. Section VII (Statement of Understanding), he signed the contract agreement verifying, "I have read this entire REB addendum and understand all of the above Sections and statements concerning my REB." 4. An NGB Form 2-5 (Addendum to DD Form 4 Approval and Acceptance by Service Representative for Interstate Transfer in the ARNG), dated 10 March 2015 shows the applicant voluntarily requested an interstate transfer to the GAARNG. This form states he was transferring to the GAARNG to complete a warrant officer packet. 5. The applicant's record is void of any evidence to show he applied for warrant officer candidate school. 6. Orders 093-1012 published by Joint Forces Headquarters Indiana on 3 April 2015 show the applicant transferred to GAARNG effective 10 March 2015. The additional instructions contain the following entry, "SRIP: YES Termination: Yes Recoupment: No Termination Date: (blank) Termination Reason: A." The MOS for the gaining unit was listed as "00F3O." 7. On 28 July 2016, the Chief, Personnel Programs, Resources and Manpower Division, NGB, denied the applicant's request for an ETP to retain the $10,000.00 REB. In the denial memorandum, the advisory official stated the applicant voluntarily transferred out of his contracted MOS 25Q and he was not serving within the Unit Identification Code for which he contracted. This discrepancy violates Department of Defense Instruction and the ARNG does not have the authority to approve the request. He said the State Incentive Manager should terminate the incentive with recoupment effective the date of the interstate transfer. REFERENCES: 1. Department of Defense (DOD) Instruction Number 1205.21 (Reserve Component Incentive Programs Procedures), dated 20 September 1999, implements the policies, assigns responsibilities, and prescribes procedures for management of the Reserve Components incentive programs. a. Paragraph 6.2 (Written Agreements) states each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member b. Paragraph 6.6 (Relief from Termination) states persons who move from one location to another may continue incentive eligibility if they remain in the Selected Reserve of the same Military Department and are assigned to an incentive-eligible unit or incentive-eligible critical skill, as appropriate. Each Military Department shall endeavor to transfer an incentive recipient who moves to a new location into a similar Selected Reserve unit or one that can make use of the skill. c. Paragraph 6.8 (Termination and Recoupment) 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 paragraph 6.6., the member must refund a prorate amount to the Government, if such termination is for any of the following reasons: (1) the member moves to a non-bonus skill or unit, unless the move is required by the Reserve Component and (2) when a member becomes a simultaneous member of an authorized officer commissioning program or accepts an immediate appointment as an officer in a Reserve component, and, in either case, has served more than 1 year of the incentive contract term following receipt of the initial incentive payment. d. Paragraph 6.10 (Calculation of Refund) states unless otherwise governed in law, the amount to be refunded to the Government shall be calculated as follows: (1) The number of months served satisfactorily during the term for which an incentive was paid shall be multiplied by the monthly rate authorized by the particular incentive. The monthly rate is calculated by dividing the total incentive amount by the number of months of Service the member has agreed to serve. This calculation results in the service member's "earned incentive." (2) That "earned incentive" must be subtracted from the total incentive amount paid to the individual to date (initial and any subsequent payments). (3) If the "earned incentive" is less than the total incentive amount paid, the overpayment to the individual must be recouped. If the "earned incentive" is more than the payments received to date (total of initial and any subsequent payments), that amount shall be paid in the final installment. (4) Termination from an incentive or any refund made by an individual shall not affect the period of obligation to serve in the Reserve. 2. Army Regulation 601-210 provides eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, the U.S. Army Reserve, and the ARNG. The regulation states that entitlement to an incentive will be terminated when any of the following termination reasons apply before the fulfillment of the service described in the member's written agreement. The member will not be eligible to receive any further incentive payments, except for service performed before the termination date. Termination of eligibility to an incentive will occur if a Soldier voluntarily moves to a non-bonus unit or MOS. 3.  The ARNG Selected Reserve Incentive Programs (SRIP) Policy for Fiscal Year 2014, Effective 2 June 2014 (ARNG HRZ Policy Number 14-01), dated 2 June 2014 prescribes eligibility criteria, procedures, and standards for administering the ARNG SRIP for Fiscal Year 2014. a. Paragraph 12 (REB) states a Soldier must reenlist/extend in an MOS that matches the authorized military grade commensurate with the position for which reenlisting/extending in order to establish the critical skill requirements on the contract start date. Soldiers that are listed as "9993" in GIMS are not eligible. Exceptions are not authorized. b. Soldiers must reenlist/extend DMOSQ in an MTOE or Medical TDA unit only, unless assigned in a deployed TDA unit. The Soldier must reenlist/extend for either a 3- or 6-year term of service in an active status. Soldiers may receive $10,000.00 REB for a 6-year reenlistment or extension. c. The 6-year REB is processed in two installments. The first 50 percent payment will occur on the contract start date provided the Soldier is assigned to the same MOS (unless change of MOS was due to convenience of the government or if still mobilized) and verification of qualification in GIMS. The second 50 percent payment will process on the fourth-year anniversary date of the contract start date provided the Soldier is assigned to the same MOS (unless change of MOS was due to convenience of the government) upon verification of qualification in GIMS, provided the first installment has been processed. 4. 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. 5. 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 evidence of record shows the applicant, an SSG/E-6, contracted for a $10,000.00 REB for 6 years in MOS 25Q on 29 July 2014. 2. He signed the REB agreement indicating he understood he was required to serve in his contracted critical MOS. He also understood if he voluntarily transferred out of his REB MOS into a different MOS, unless otherwise authorized, his bonus would be terminated. The effective date of termination would be the effective date of his transfer order. 3. The evidence of record shows he voluntarily transferred to the GAARNG on 10 March 2015. His orders show "SRIP: YES Termination: Yes Recoupment: No Termination Date: (blank)." The applicant argues the "No" entry means he was not required to repay the bonus. However, as specified in his contract agreement, he could be terminated from REB eligibility with recoupment, effective the date of his orders if he voluntarily transferred within the state or interstate transfer or if he voluntarily transferred out of his REB MOS into a different MOS unless otherwise authorized in REB addendum. 4. Per his REB contract, the applicant did serve satisfactorily from 25 August 2014 (the official start date of his REB contract) to 10 March 2015 (the effective date of his transfer) and is entitled to that portion of the REB incentive. 5. NGB does not have authority to grant an ETP to retain bonuses nor waive recoupment of bonuses. The applicant served in the INARNG in his contracted MOS and the GAARNG, albeit not in his contracted MOS and apparently not due to his own volition. The third anniversary of his bonus agreement recently passed. Concerning recoupment, there is a provision within the DOD Financial Management Regulation, volume 7A, chapter 2, that allows for a decision supporting equity and justice. 6. Concerning retaining the full REB of $10,000.00, he appears to not meet the regulatory criteria for the second installment of his REB ($5,000.00) as he is not serving in his contracted MOS as per his REB addendum. There appears to be no provision allowing for its payment at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015582 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015582 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2