IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150005323 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: a. correction of his records to show he was eligible to receive a reenlistment bonus; b. drafting of a reenlistment bonus contract in the amount of $15,000; c. cancellation of the recoupment of his Prior Service Enlistment Bonus (PSEB). 2. The applicant states his enlistment bonus is being recouped unjustly. This error was caused by the recruiter that completed his bonus contract. The recruiter submitted the bonus as a PSEB; however, the bonus should have been submitted as a reenlistment bonus. 3. The applicant provides: * Memorandum, Subject: Request for Correction of Military Records and Relief from Recoupment for [applicant's name], dated 16 January 2014 * Memorandum, Subject: Request for Correction of Military Records for [applicant] (AR20140005432), dated 28 May 2014 * Memoranda, Subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 8 April 2005 and 21 May 2008 * DD Form 4 (Enlistment/Reenlistment Document), dated 20 April 2007 * National Guard Bureau (NGB) Form 600-7-6-R-E (Annex X to DD Form 4 - PSEB Addendum) * NGB Memorandum, Subject: Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 - 30 September 2009 (Policy Number 07-06), Updated 18 February 2008 * Incentives Task Force Bonus Audit Form, printed on 23 May 2013 * Memorandum, Subject: Incentive Notice of Indebtedness (NOI), RefTL#20132303RC, dated 30 September 2013 * Memorandum, Subject: Denied Exception to Policy Request - PSEB - $15,000, dated 19 May 2014 CONSIDERATION OF EVIDENCE: 1. At the time the applicant submitted his application, he was serving in the Army National Guard in the rank of staff sergeant (SSG)/E-6. 2. The applicant enlisted in the Regular Army on 9 July 1996. He was discharged on 11 March 1999 under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b by reason of misconduct. The DD Form 214 issued for this period shows his characterization of service as general under honorable conditions. 3. After a break in service, the applicant enlisted in the California Army National Guard (CAARNG) on 17 December 2002. He was honorably separated on 16 December 2004 at the expiration of his active Guard commitment. On the following day, he was transferred to the U.S. Army Reserve (USAR) (Reinforcement). 4. The applicant's DA Form 4 shows he enlisted in the CAARNG again on 20 April 2007 for a period of 6 years. 5. The DD Form 1966 (Record of Military Processing – Armed Forces of the United States) completed during his enlistment processing shows in Section IV (Certification), block 32 (Specific Option/Program Enlisted for Military Skill, or Assignment to a Geographical Area Guarantees) he was enlisting for training in military occupational specialty (MOS) 63A (Abrams Tank System Maintainer) and was authorized a PSEB of $15,000. 6. He completed a PSEB Addendum during his enlistment processing which states in Section II, "Upon my enlistment in the ARNG, I am eligible for a PSEB under the Selected Reserve Incentive Program if I meet the following criteria:" * He completed not more than 16 years of total military service * He was qualified in and held the primary MOS for which he was enlisting and the rank/grade required for the position * He was not qualified in the primary MOS for which he was enlisting, but had enlisted into an NGB or State Critical Skill MOS and agreed to attend formal training and become qualified in his contracted MOS within 24 months of his date of enlistment * He met all enlistment eligibility criteria set forth in National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) * He was not enlisting into an excess position * He was not enlisting for a Title 10 or Title 32 Active Guard Reserve tour or Military Technician position * He had received an honorable discharge for all periods of prior military service * He had read Section II and understood the contents thereof 7. In Section III (Bonus Amount and Payments), paragraph 2, of the PSEB Addendum, he acknowledged: * He would receive a total bonus payment in the amount of $15,000 for a 6-year enlistment to be paid in two 50 percent installments of $7,500 less taxes * The first 50 percent installment will be processed for payment upon enlistment if he was already MOS qualified for the position for which he was enlisting * The second and final 50 percent installment would be processed for payment on the 36-month anniversary of the date of enlistment 8. The applicant and the Enlisting Official signed the PSEB Addendum on 20 April 2007 and a bonus control number was assigned. 9. In a 30 September 2013 memorandum, an official from the NGB U.S. Property and Fiscal Office (USPFO) for California informed the applicant that action had been taken to collect a debt in the amount of $15,000 for a PSEB incentive. He was advised of his rights and options to repay this debt. 10. In a 16 January 2014 memorandum, the applicant stated: a. On 1 October 2013, he received a notification from the CAARNG Soldiers Incentive Assistance Center (SIAC) stating that he owed the U.S. Government $15,000 for an enlistment bonus that was erroneously paid to him. b. On 20 April 2007, he enlisted in the CAARNG for 6 years. He signed the bonus addendum on the same day and believed it was a reenlistment bonus. After further inspection of the addendum, he realized that his recruiter gave him the wrong addendum to sign. He states that he actually signed a PSEB addendum and it was processed as such. When he contacted SIAC regarding their recoupment letter, they told him he was ineligible because he received a general discharge from his initial period of Active Army service from 1996 to 1999. While a characterization of service of honorable for all periods of service is a condition for a PSEB, it isn't a condition for a reenlistment bonus. Department of Defense Instruction 1205.21 doesn't require a Soldier to have an honorable characterization of service for all periods of service in order to receive a reenlistment bonus. c. According to the fiscal year (FY) 2007 SRIP Guidance, a Soldier who agrees to reenlist for a period of 6 years is eligible to receive a $15,000 bonus if the Soldier: (1) Has completed not more than 20 years of total military service, (2) Reenlists or voluntarily extends his enlistment for a period of 6 years in a designated military skill, or in a designated unit, as determined by the Secretary concerned, in the Selected Reserve of the Ready Reserve of an armed force; and (3) Any portion of a term of reenlistment or extension of enlistment of a member that, when added to the total years of service of the member at the time of discharge or release, exceeds 24 years may not be used in computing the total bonus amount under paragraph 1. d. According the FY2007 SRIP Guidance, he would have been eligible to receive the reenlistment bonus when he reenlisted in 2007. At the time of his reenlistment, he had not completed more than 20 years of total military service. He agreed to reenlist for 6 years in MOS 91A. His 6-year reenlistment would not have exceeded 24 years of his total years of total military service at the end of the contract period. Based on the reasons he has cited, he requests the Board to rule he was eligible to receive the reenlistment bonus at the time of his reenlistment. e. He believes it would be against equity and good conscience to hold him completely responsible for the mistakes committed by his recruiter. It's clear that he was eligible to receive the reenlistment bonus, yet he had signed the PSEB and it was processed as such. This is no fault of his own as he completely relied on his recruiter to provide him the proper documentation for the bonus. f. It would be contrary to the best interest of the U.S. to recoup money from a Soldier who has clearly demonstrated that he was eligible to receive a bonus and honorably served the enlistment contract. 11. In a memorandum, dated 28 May 2014, the applicant stated that he received a letter from the Army Review Boards Agency stating that his application was filed without action and without prejudice because he did not exhaust all of his administrative remedies. On 19 May 2014, he received a letter from the CAARNG denying him the ability to apply for an exception to policy to NGB on the grounds that the NGB could not correct his particular issue. The CAARNG letter further stated that his only recourse was to submit a claim to the Army Board for Correction of Military Records (ABCMR). For this reason, he believes that he has exhausted all of his administrative remedies and the ABCMR is the only entity that can correct his contract and relieve him from recoupment. 12. The applicant provided an Incentive Task Force Bonus Audit Form which shows he was not eligible to contract for a $15,000 PSEB. This document indicates the applicant was paid $7,500 on 13 June 2007 and $7,500 on 21 April 2010. He was not eligible because he received a general under honorable conditions discharge. 13. In a 23 June 2015 memorandum, the SIAC Commander, CAARNG recommended a favorable action with regard to relief from recoupment of the $15,000 PSEB and stated: a. The SIAC audited the applicant and discovered he wasn't eligible to contract for or receive payment for the PSEB incentive. There is no evidence of fraud on the part of the applicant. b. The applicant requests relief from recoupment as he was never eligible to contract for the PSEB incentive because he received a prior discharge characterized as "Under Honorable Conditions (General)" in violation of Title 37, U.S. Code (37, USC),section 308i. On 18 August 2013, SIAC sent the applicant’s $15,000 debt to USPFO for initiation of recoupment action. To date, the applicant has repaid $467.92 of the debt to the Government. c. The applicant enlisted in the Regular Army on 9 July 1996 and was discharged on 11 March 1999 with service characterized as "Under Honorable Conditions (General)" with the reason for separation identified as "misconduct," with a separation code of "JKA," and the reenlistment eligibility code of "3," indicating a waivable disqualification. The applicant subsequently enlisted into the CAARNG for a 6-year service obligation on 20 April 2007, contracting for a $15,000 PSEB. The applicant received a payment of $7,500 on 20 April 2007 and another payment of $7,500 on 21 April 2010. d. The applicant wasn't eligible to contract for the PSEB. Eligibility for a PSEB is governed by 37, USC, section 308i, in effect at the time of the applicant's contract, as implemented by ARNG SRIP Policy 07-04. Receiving an honorable discharge upon completion of all prior periods of service is one of the eligibility requirements for the PSEB per SRIP 07-04, paragraph 8(f)(5). This is reflected in 37, USC, section 308i, subsection (a)(2)(A), which requires eligible persons to have received an honorable discharge at the conclusion of all prior periods of service. Since the applicant received a general discharge under honorable conditions at the conclusion of his Regular Army service, he was never eligible to contract for the PSEB. e. The applicant wasn't eligible to receive payment for the PSEB. Title 37, USC, section 308i, Subsection (a)(2) states, "a bonus may only be paid under this section to a person who meets each of the following requirements," followed by an enumerated list of requirements including the requirement of receiving an honorable discharge at the conclusion of all prior periods of service. Prior versions of 37, USC, section 308i, in effect at the time of the applicant's contract, as well as the dates of the first and second payment he received under the PSEB, all contain the same language restricting payment to persons who meet the aforementioned eligibility requirement. Since the applicant received a general discharge prior to contracting for the PSEB, he wasn't eligible to receive payment. 15. On 22 July 2015, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB who recommended approval of the applicant's requests. The advisory official opined: a. On 9 July 1996, the applicant enlisted in the Active Army and was discharged "Under Honorable Conditions (General)" on 11 March 1999. On 17 December 2002, the applicant enlisted in the CAARNG for 2 years and he was honorably discharged on 16 December 2004. On 20 April 2007, the applicant executed a second enlistment into the CAARNG for 6 years and a $15,000 PSEB incentive. b. The eligibility for a PSEB is governed by 37, USC, section 308i in effect at the time of the applicant’s enlistment contract, as implemented by ARNG SRIP Policy 07-04. Receiving an honorable discharge upon completion of all prior periods of service is one of the eligibility requirements for the PSEB per SRIP 07-04, paragraph 8(f)(5). This is reflected in 37, USC, subsection (a)(2)(A), which requires eligible persons to have received an honorable discharge at the conclusion of all prior periods of service. The applicant was not eligible to contract for the PSEB with a characterization of service as "Under Honorable Conditions (General)." c. On 30 September 2013, the applicant received an Incentive Notice of Indebtedness from the USPFO for California. d. On 19 May 2014, the applicant’s request for payment of the $15,000 PSEB as an Exception to Policy was denied by the CAARNG and was not further processed to the NGB level. e. The Office of the Under Secretary of Defense published a memorandum, dated 21 May 2008, Subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends. This memorandum states, "A member who enters into a written agreement with specified conditions for receipt of a pay or benefit is entitled the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit." The Deputy Secretary of Defense policy memorandum recognized, at the time, members were subject to statutory repayment for any unearned portion of a pay or benefit, as appropriate. f. The CAARNG erroneously allowed him to enter into the contract and terms of the contract should be upheld and relief from recoupment granted. g. The CAARNG non-concurs with this recommendation. 16. A copy of the advisory opinion was forwarded to the applicant to allow him to submit comments. However, he didn't respond within the allotted timeframe. 17. Title 37, USC, section 308i, states, in part, a person who is a former enlisted member of an armed force who enlists in the Selected Reserve of the Ready Reserve of an armed force for a period of 3 or 6 years in a critical military skill designated for a bonus by the Secretary concerned may be paid a bonus in the amount of $15,000 for a 6-year enlistment or $7,500 for a 3-year enlistment. Subparagraph 308i(a)(2)(A) states that a bonus may only be paid under this section to a person who meets each of the following requirements: a. The person has not more than 16 years of total military service and received an honorable discharge at the conclusion of all prior periods of service. b. The person was not released, or is not being released, from active service for the purpose of enlistment in a Reserve component. c. The person is projected to occupy, or is occupying, a position as a member of the Selected Reserve in a specialty in which the person – (1) successfully served while a member on active duty and attained a level of qualification while on active duty commensurate with the grade and years of service of the member; or (2) has completed training or retraining in the specialty skill that is designated as critically short and attained a level of qualification in the specialty skill that is commensurate with the grade and years of service of the member. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his enlistment bonus is being recouped unjustly was carefully considered. However, the evidence of record does not indicate that an error or injustice exists in this case. 2. The evidence of record shows the applicant enlisted in the Regular Army on 9 July 1996 and was discharged on 11 March 1999 under the provisions of AR 635-200, paragraph 14-12b, for misconduct with service characterized as general under honorable conditions. 3. The applicant subsequently enlisted in the CAARNG on 20 April 2007 for a period of 6 years. During his enlistment processing, he contracted for a $15,000 PSEB. 4. Although the applicant contends that he should have contracted for a reenlistment bonus in lieu of a PSEB, the evidence indicates he had a break in his ARNG service. As such, a reenlistment bonus was not available to him on 20 April 2007. 5. The applicant's PSEB Addendum clearly shows he read and acknowledged that he understood the contents of the contract. He initialed Section II acknowledging that he was eligible for a PSEB if he had received an honorable discharge for all periods of prior military service. 6. Based on 37, USC, section 308i, the law in effect at the time of his enlistment in the CAARNG on 20 April 2007, a bonus would only be paid if the Soldier met each of the requirements in this section. One of the requirements included that he received an honorable discharge at the conclusion of all prior periods of service. 7. Since the applicant did not meet all of the requirements he agreed to on his 20 April 2007 PSEB contract, he was not eligible for payment of the $15,000 PSEB that is listed in his contract. 8. Based on the foregoing, there is an insufficient basis upon which to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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) AR20150005323 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005323 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1