BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20150019195 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: 12 September 2017 DOCKET NUMBER: AR20150019195 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 ARNG records of the individual concerned be corrected by: * showing the applicant is authorized to retain the first installment payment of his U.S. Army Reserve (USAR) Non-Prior Service Enlistment Bonus (NPSEB) * reimbursing him any recouped monies for this portion of the incentive debt, if applicable ___________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: 12 September 2017 DOCKET NUMBER: AR20150019195 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 (ETP) to retain the first installment of his U.S. Army Reserve (USAR) Non-Prior Service Enlistment Bonus (NPSEB) and cancellation of all recoupment actions concerning his USAR NPSEB debt. 2. The applicant states: a. The records show he did not complete the service obligation associated with his USAR NPSEB ($9,000.00) contract he signed in August 2006. He was paid the first installment ($4,500.00 ($3,125.00 after taxes)) upon completion of initial training in 2007. He trained with a USAR unit for the next 2 months before applying for a transfer to the Indiana Army National Guard (INARNG) in August 2007 for the purpose of enlisting in the Reserve Officers' Training Corps (ROTC). He was told by his recruiter his transfer would nullify his bonus contract with the USAR and cancel all future payments of the NPSEB. However, he was also told he would retain the initial bonus payment because he had earned the bonus for enlisting and completing his initial training requirements. b. He signed a 3-year contract with the INARNG for the purpose of enrolling in ROTC (to complete a second degree). It was his understanding he would sign a new contract with the Army as an officer to cover the new 6-year period. He did not complete ROTC, but he continued to serve in the INARNG long past his initial 2006 USAR enlistment contract. At the time of his application, he had completed more than 9 years of active service in the Reserve Component. c. Even though he acknowledges his transfer to the INARNG from the USAR in August 2007 nullified his original enlistment contract and bonus, he received incorrect guidance or false information from his recruiter. He acknowledges he should not be paid the remaining portion of the NPSEB and that part of his contract should be nullified. However, he believes he should be able to keep the portion of the bonus he was paid. If he had received the correct guidance by his recruiter in 2007, he would have done what was necessary to avoid repaying the portion of the bonus he received. His record should be cleared of this incident thus allowing him eligibility for future bonuses associated with any INARNG subsequent and future extensions. d. He extended in the INARNG in April 2009. He again extended in May 2011 for 3 years with a new expiration of term of service date of 2 August 2014. He received notice of the incentive discrepancy and the ETP process on 13 August 2013. He further extended in the INARNG in December 2013 and executed a $10,000.00 Reenlistment/Extension Bonus (REB) contract. 3. The applicant provides: * personal memorandum dated 8 December 2015 * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States, dated 14 August 2006 * Selective Reserve Incentive Program – Enlistment Bonus Addendum, dated 14 August 2006 * DD Form 638 (Request for Conditional Release), dated 10 July 2007 * DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 29 July 2007 * ROTC documents – incomplete record * INARNG Agreement to the Statement of Understanding for Fiscal Year 2007, dated 29 July 2007 * DA Form 7349 (Initial Medical Review – Annual Medical Certificate * DD Form 4, dated 3 August 2007 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 19 April 2009 * DA Form 4836, dated 21 May 2011 * DA Form 4836, dated 7 December 2013 * National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus (REB) Addendum ARNG of the United States ARNG), dated 7 December 2013 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR on 14 August 2006. On the same date, he executed a Selected Reserve Incentive Program (SRIP) – Enlistment Bonus Addendum. He acknowledged and authenticated the terms of the addendum including agreement to enlist in the USAR for 6 years for a bonus military occupational specialty (MOS) 42A (Human Resources Specialist) or in a bonus unit unless excused for the convenience of the Government. He agreed to serve satisfactorily as prescribed by the addendum. The addendum stated in: a. Section V (Entitlement) – He was entitled to an NPSEB in the amount of $9,000.00. He would receive the initial 50-percent payment upon completion of initial active duty for training (IADT) and qualifying in MOS 42A. The remaining unpaid portion of the NPSEB would be paid in two subsequent payments of 25 percent each upon the successful completion of the second and fourth year of his 6-year enlistment term of service. b. Section VII (Termination) – He understood his bonus would be terminated with recoupment action: (1) If he enrolled in the ROTC with assignment to the Control Group (ROTC) or if he became a participant in the ROTC Simultaneous Membership Program. (2) If he transferred to the ARNG unless the Chief, National Guard Bureau (NGB), authorized continued entitlement on enlistment in the ARNG. c. Section VIII (Recoupment) – Recoupment would be calculated on the number of months satisfactorily served during the term of the enlistment. If the calculations indicated an overpayment to him, he would be required to refund that amount to the U.S. Government. d. Section IX (Certificate by Service Representative) contains the typed/printed name/rank, signature, and date signed of the enlisting official. 3. The applicant completed IADT and was awarded MOS 42A on or about 9 May 2007. 4. On an unknown date, he received the first installment of his NPSEB. 5. He executed and signed a DD Form 368 on 10 July 2007, requesting release from the USAR to enlist in the INARNG. His request was approved by his USAR unit commander on 27 July 2007. 6. Orders Number 07-220-00053, issued by Headquarters, 88th Regional Readiness Command, Fort Snelling, MN on 8 August 2007, released him from the USAR for enlistment in the INARNG, effective 3 August 2007. He completed 11 months and 20 days of USAR enlisted service. 7. He enlisted in the INARNG on 3 August 2007 for 3 years. In conjunction with this enlistment, he completed DD Form 1966 wherein he stated he was a college graduate and completed his studies at Purdue University (Main Campus), West Lafayette, IN, from January 2000 to May 2004. He also stated he had never previously enrolled in ROTC. 8. He completed two DA Forms 4836 for the INARNG on/for: * 19 April 2009 – extending his enlistment for 1 year * 21 May 2011 – extending his enlistment for 3 years 9. On 7 December 2013, he again extended his enlistment in the INARNG for 6 years. This extension established his new expiration of term of service as 2 August 2020. Concurrently, he completed NGB Form 600-7-3-R-E wherein he enlisted for a 6-year Non-Deployment Extension Stabilization Pay total bonus of $10,000.00 in MOS 42A. He certified he was reenlisting or extending in his duty MOS as the primary position holder within a unit. His bonus was to be processed in two installments. The first 50-percent payment on the day after his current expiration of term of service date and the second 50-percent payment on the fourth year anniversary of his 6-year contract. He further indicated he understood he would not receive payment if he did not meet all eligibility requirements on his contract start date. Both the applicant and a member of the INARNG signed this document. 10. The applicant provided an incomplete ROTC accession packet showing he was enrolling in Purdue University – Calumet Campus in July 2007. There is no evidence showing he successfully enrolled in an ROTC unit as a simultaneous member of the INARNG. 11. On an unknown date he applied for an ETP to retain his $9,000.00 NPSEB. On 4 December 2015, NGB denied his ETP request and notified the State Incentive Manager to start recoupment action. The NGB official stated the applicant contracted for a NPSEB on 14 August 2006 for MOS 42A. He did not complete the service obligation associated with this incentive as required by the ARNG Selected Reserve Incentive Program (SRIP) Policy Guidance for Fiscal Year 2006 (Policy Number 06-06) effective 26 May 2006. REFERENCE: 1. ARNG SRIP Policy Number 06-06, dated 26 May 2006, established policy to administer SRIP incentives for the period 26 May 2006 through 31 December 2006. The policy provided for a $9,000.00 NPSEB for enlistees who enlisted for a critical skill MOS. The policy also provided for termination of an incentive with recoupment if entitlement to the incentive was terminated for any reason before the fulfillment of the service described in the member's written agreement. Unless granted relief, the member was required to refund a prorated amount to the Government, if the incentive was terminated for moves to a non-bonus skill or unit, unless the move was required by the USAR. 2. Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedures) governs the Reserve Component Incentive Programs Procedures. It states in: a. 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. Persons whose military specialties are changed at the convenience of the Government or whose is inactivated, relocated or reorganized or converted are entitled to continue receiving incentive payments provided they meet all other eligibility criteria. b. 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 paragraphs 6.6, the member must refund a prorated amount to the Government, if such termination is for certain reasons. A Soldier moving to a non-bonus skill or unit is required to repay the bonus, unless the move is required by the Reserve component. c. Paragraph 6.10 (Calculation of Refund) states unless otherwise governed in law, the prorate amount refunded to the Government shall be calculated as follows: (1) Paragraph 6.10.1 states 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) Paragraph 6.10.2 states that earned incentive must be subtracted from the total incentive amount paid to the individual to date (initial and any subsequent payments). (3) Paragraph 6.10.3 states 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) Paragraph 6.10.4 states termination from an incentive or any refund made by an individual shall not affect the period of obligation to serve in the Reserve. 3. DoD Financial Management Regulation, Volume 7a, states in: a. Chapter 2, section 020101 states if a member fails to fulfill the service condition 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. b. Chapter 2, section 020103 states the term "service" as used in this chapter, refers to an obligation willingly undertaken by a member of the uniformed services in exchange for pay or benefit offered to remain on active duty or in an active status in a Reserve Component. c. Chapter 9, section 090107 states a member who does not complete the term of enlistment will be subject to the repayments provisions of chapter 2. The amount of payment will be divided by the months of which the bonus was payable. This is the bonus amount per month. This number is multiplied by the number of months and fractions of months not served (including lost time, unless such lost time has been made up). This is the amount to the recouped. 4. 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 enlisted in the USAR for 6 years on 14 August 2006. He executed an addendum for an NPSEB in MOS 42A. He was awarded this MOS on or about 9 May 2007 and received the first half of his bonus (50 percent). He was released from the USAR per his request effective 2 August 2007. He then enlisted in the INARNG on 3 August 2007. 2. He was eligible for his first payment of the USAR NPSEB due to his completion of IADT and award of his contracted MOS. He was not eligible for and he did not receive any additional bonus payments because he had not reached the second and fourth year anniversary of his USAR enlistment. 3. In accordance with regulatory guidance and policy, recoupment is required for an amount equal of the unearned portion of a benefit when the member is no longer on active duty or in an active status in the Reserve Component for which contracted. In this case, he contracted for the USAR. Recoupment will be multiplied by the number of months and fractions of months not served. 4. He served satisfactorily in the USAR from 14 August 2006 to 3 August 2007, completing almost 1 year of his 6-year enlistment obligation. Currently, he continues to serve in the INARNG in MOS 42A with a current expiration of term of service of 2 August 2020. There are provisions of the DOD Financial Management Regulation, volume 7A, allowing for relief in cases like this one when denying relief would go against equity and good conscience or would be contrary to the best interest of the United States. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019195 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019195 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2