BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150014448 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: 16 February 2017 DOCKET NUMBER: AR20150014448 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 State Army National Guard records of the individual concerned be corrected by: a. showing he was granted an exception to policy to retain the Prior Service Enlistment Bonus in the amount of $15,000.00 and b. paying him any portion of the Prior Service Enlistment Bonus not already paid up to the amount of $15,000.00. _____________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: 16 February 2017 DOCKET NUMBER: AR20150014448 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 correction of his records to allow him to retain the Prior Service Enlistment Bonus (PSEB) offered at the time of his enlistment in the Florida Army National Guard (ARNG) in 2008. 2. The applicant states: a. His enlistment bonus contract promised him $15,000.00. His ability to obtain military occupational specialty (MOS) schooling within 24 months was restricted due to ARNG policy, command leadership, and limited schooling dates. b. His bonus was denied, stating it was his fault, not the fault of the ARNG. His second payment of $7,500.00 should be granted and it is in the best interest of the Army. c. Under normal enlistment protocol, Soldiers go directly to advanced individual training after basic training. In his case, he was sent to the Warrior Transition Course and he bypassed training. The needs of the Army are represented during the initial phase of his enlistment. d. Command climate did not authorize out-of-state schools or training due to deployments and Florida funding. Loss of an MOS position in the modified table of organization and equipment (MTOE) delayed further schooling since he would have to change commands within Florida or change his MOS and still wait for available school dates. Changing commands would continue to delay admission to MOS schools. An interstate transfer was not the reason for delayed training. It was the lack of execution of ARNG policy in both Louisiana and Florida. e. Failure to provide advanced individual training after basic training, the Warrior Transition Course, delays in school availability, reduction in school dates, loss of an MTOE MOS position, readiness noncommissioned officer persuasion to change his MOS, and lack of attentiveness to Soldiers' requirements were the reasons for his MOS qualification delays within the first 24 months of his contracted period. 3. The applicant provides: * exception to policy (ETP) approval letter, dated 13 February 2013 * ETP denial letter, dated 25 September 2013 * PSEB Enlistment Bonus Addendum * sworn statement * email CONSIDERATION OF EVIDENCE: 1. Having prior service in the U.S. Navy and U.S. Naval Reserve, the applicant enlisted in the Florida ARNG on 11 April 2008 for a period of 6 years for MOS 52C (utilities equipment repairer), which was later converted to MOS 91C. His PSEB Addendum, dated 4 April 2008, shows he enlisted for a bonus in the amount of $15,000.00. The addendum states his initial payment of $7,500.00, less taxes, would be processed on the date of his enlistment and the second payment of $7,500.00, less taxes, would be processed upon his fourth-year anniversary of service in the ARNG. 2. On 13 February 2013, the National Guard Bureau (NGB) approved his request for an ETP to retain the $15,000.00 PSEB incentive and stated: a. The applicant's incentive addendum is obsolete. b. His incentive addendum was signed before the enlistment documents. c. He contracted for MOS 91C. His current MOS is 91B (wheeled vehicle mechanic). d. A review of the bonus control number supports an incentive being offered at the time of agreement/contract. He accepted an incentive offer in good faith and has otherwise fulfilled the obligations under the contract and is qualified in MOS 91B. Therefore, withholding payment of this incentive would be against equity and good conscience and contrary to the best interest of the Army. 3. On 25 September 2013, NGB subsequently disapproved his request for an ETP to retain the $15,000.00 PSEB incentive and stated: a. The State Incentive Manager will terminate his PSEB without recoupment. b. The applicant is not serving in the MOS for which he contracted, which violates ARNG Selective Reserve Incentive Policy 07-06. c. He did not complete MOS training within 24 months, which violates ARNG Selective Reserve Incentive Policy 07-06. d. He contracted for MOS 91C. His current MOS is 91B. 4. He extended his enlistment on: * 9 February 2014 for a period of 1 year * 1 March 2015 for a period of 4 years 5. He provided a sworn statement, dated 23 August 2015, stating: a. On 4 April 2008, he enlisted in the Florida ARNG. He signed a PSEB contract and was promised $15,000.00. The bonus was to be paid in two installments. He received the first installment on 8 April 2008. NGB denied the bonus because of some clerical errors. Due to no fault of his own, he signed an obsolete bonus addendum; the addendum was signed 7 days prior to his date of enlistment; and his MOS 52C was converted to MOS 91C, which was not on the critical skill list. He enlisted under MOS 91C, specified as critical. Upon orders to the Warrior Transition Course, the MOS was administratively changed to 09B, unbeknownst to him. b. After school in August, no MOS school was readily available. In September 2008, he moved to Louisiana for a new job opportunity following a divorce. After a company-wide layoff, he was forced to return to Florida. During his drilling in Louisiana, the Louisiana ARNG was unable to enroll him in any MOS training schools or provide any training commitment prior to his civilian job layoff. When he returned to Florida, there were no school quotas available. In 2009, he was notified that the MTOE lost his MOS 91C position. His unit could not send him to school for MOS 91C. He was told by a sergeant first class that he would have to find another unit or change his MOS to 91B. He specifically asked the sergeant first class whether changing his MOS would affect his bonus and he was told no. c. Soldiers depend on leadership to assist in guidance to ensure communications regarding these occurrences are not broken. He maintained communications through his squad leader, platoon leader, and readiness noncommissioned officers to provide appropriate dates for his schooling. He was not the cause for not being MOS qualified within the given time frame. 6. He was promoted to staff sergeant effective 1 October 2015. REFERENCES: 1. National Guard Regulation 600-7 (Selective Reserve Incentive Programs) paragraph 2-5, states enlistment bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis. The State Incentive Manager will verify accession packets as prescribed by state policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level. 2. Department of Defense Financial Management Regulation, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), chapter 2, governs repayment of unearned portions of bonuses and other benefits. a. 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. b. 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 contends he should be paid the second installment of his PSEB. 2. The evidence confirms he enlisted in the Florida ARNG on 11 April 2008 for a PSEB in the amount of $15,000.00. He received the first installment of $7500.00 upon enlistment. 3. In February 2013, NGB approved an ETP for the applicant to retain the $15,000.00 PSEB, stating a review of the bonus control number supports an incentive being offered at the time of agreement/contract; he accepted an incentive offer in good faith and has otherwise fulfilled the obligations under the contract; he is MOS qualified in 91B; and withholding payment of this incentive would be against equity and good conscience and contrary to the best interest of the Army. 4. In September 2013, NGB denied an ETP to retain the $15,000.00 PSEB, citing the applicant was not serving in the MOS for which he contracted and he did not complete MOS training within 24 months. 5. Although the second review by NGB stated he was not serving in the MOS for which he contracted and he did not complete MOS training within 24 months, the first NGB decision to approve his request for ETP acknowledged the alternate MOS. The only remaining contention was his inability to complete MOS training within 24 months. 6. The applicant continues to serve in the ARNG in good standing and was recently promoted to staff sergeant. It appears to be against equity and good conscience for NGB to terminate his PSEB over 7 months after approving an ETP for him to retain it. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014448 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014448 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2