IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20160011120 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 IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20160011120 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 records of the individual concerned be corrected by: a. amending the applicant's records to show the National Guard Bureau cancelled recoupment actions related to reenlistment/extension bonus (REB) monies he previously received; and b. terminating all ongoing recoupment actions and refunding, if necessary, all previously recouped monies related to the applicant's receipt of a portion of the REB he contracted to receive. 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 correcting the applicant's records to show he was eligible for the REB he contracted for on 18 October 2011. _____________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. IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20160011120 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, in effect, relief from recoupment of his terminated Reenlistment/Extension Bonus (REB) incentive and an exception to policy (ETP) allowing him to retain the $10,000 REB incentive he contracted for at the time of his reenlistment. 2. The applicant states: * he was qualified in military occupational specialty (MOS) 91L (Construction Equipment Repairer), the MOS he contracted for; this was also his duty MOS (DMOS) * he was DMOS qualified (DMOSQ) in MOS 91L since he completed Basic Combat Training and Advanced Individual Training in 2004 * he did not voluntarily transfer out of the contracted MOS * he was told he was eligible for the bonus contract, which stated that he was in a primary slot and eligible for the bonus * he had no control over the Unit Manning Roster (UMR) and trusted the staff to place him into a slot that conformed with the terms of his contract * it was not until 31 May 2013 that he was moved into an MOS 91X (Maintenance Supervisor) slot, which is a career progression MOS (CPMOS) for 91L * the changes in his MOS were a result of the unit commander moving him due to the lack of leadership within the company * since he contracted as a 91L, he assumed he was still a 91L and was not notified that he was in violation of his contract * these moves were documented in the memorandum from his unit commander on 1 May 2013, with guidance from the Ohio Army National Guard (OHARNG) Incentives Oversight Branch on 18 July 2013 * he did not use white-out on his contract; this had to have been done by either the full-time unit staff after he signed the contract in good faith, or by the State Incentives Office * he signed a reenlistment contract in good faith for $10,000; the State Incentives Manager issued a bonus control number to verify that he was eligible and the contract was accurate * the OHARNG Education and Incentives Office approved and established payment for the contract on 17 December 2012 * the contract was submitted to the National Guard Bureau (NGB) by the State Incentives Manager; however, the bonus was sent back to Ohio from the NGB due to an issue with his current MOS * with guidance from the OHARNG Education and Incentives Office, a memorandum was drafted to identify the reason for the applicant's MOS change * neither area 2(a) (not duty-qualified) nor 2(c) (white-out) on the NGB memorandum, dated 3 February 2016, were identified at that time * the memorandum was accepted by the NGB and the first payment was paid * he was advised that all further payments would be made to him on time, the second bonus payment was due on 24 July 2015 * on 6 June 2015, a request for payment was made by his unit * the OHARNG Education and Incentives Office performed two reviews, which took until 28 December 2015 to complete; he kept in contact through email and phone calls * he was advised the OHARNG Education and Incentives Office had reviewed his contract and requested that the NGB deny his future payments, but not recoup the previous payment * this is the same staff that issued the initial bonus control number in 2011, approved his bonus payment in 2012, and assisted his unit with needed documentation in 2013 * in a memorandum, the NGB addressed the errors in his contract, sought recoupment of the initial bonus, and cancellation of further payments * this issue has caused great stress to him, his family, and his unit 3. The applicant provides a self-authored statement and the following: * DA Form 4187 (Personnel Action), dated 19 March 2004 * Orders Number 024-037, issued by OHARNG on 26 July 2004 * Orders Number 212-060, issued by OHARNG on 27 October 2004 * Orders Number 143-092, issued by OHARNG on 23 May 2006 * Orders Number 342-034, issued by OHARNG on 8 December 2006 * Orders Number 221-007, issued by OHARNG on 8 August 2008 * DA Form 4187, dated 20 February 2009 * Orders Number 174-053, issued by OHARNG on 23 June 2009 * Permanent Orders 130-004, issued by OHARNG on 10 May 2011 * Orders Number 250-908, issued by OHARNG on 7 September 2011 * Orders Number 273-941, issued by OHARNG on 30 September 2011 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 18 October 2011 * NGB Form 600-7-3-R-E (Annex R to DA Form 4836 – REB Addendum – ARNG of the United States), dated 18 October 2011 * a memorandum from his commander, addressed to the OHARNG, dated 13 November 2012, subject: Request for ETP on Enlisted Promotion System (EPS) Fill MOS 94W40 [Electronic Maintenance Chief] * Orders Number 328-903, issued by OHARNG on 23 November 2012 * Orders Number 018-958, issued by OHARNG on 18 January 2013 * a memorandum from the OHARNG, addressed to the Education/Incentives Office and dated 1 May 2013, subject: Bonus for Sergeant First Class (SFC) [Applicant] * Orders Number 157-911, issued by OHARNG on 6 June 2013 * email correspondence documenting the applicant’s communications with members of the Education/Incentives Office, OHARNG, dated between 7 August 2015 through 14 June 2016 * a Memorandum for Record (MFR) from the OHARNG Readiness Non-commissioned Officer (NCO), dated 1 October 2015 * Delegation of Signature Authority, dated 13 November 2015 * memorandum from OHARNG, addressed to the NGB, dated 28 December 2015, subject: ETP Request for Payment of the REB for Staff Sergeant (SSG) [Applicant] * a memorandum from the NGB, addressed to the OHARNG State Incentives Manager, dated 1 February 2016, subject: Request ETP for REB for SFC [Applicant]) * a memorandum from NGB, addressed to the OHARNG State Incentives Manager and dated 3 February 2016, subject: Second Review Request for ETP for REB (SFC [Applicant], 1844) * an MFR from the Assistant S3 Operations NCO, 371st Special Troops Battalion, OHARNG, dated 16 June 2016 * a memorandum from OHARNG Incentives Manager, addressed to the applicant and dated 17 June 2016, subject: Issuance and Payment of REB CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the OHARNG on 24 July 2003. He entered active duty on 13 January 2004, completed his initial entry training, was awarded MOS 62B (later re-designated as 91L), and was released from active duty on 21 May 2004. Upon his release from active duty, he was returned to the control of the OHARNG. 2. He served in positions of increased responsibility, in MOS 62B (later MOS 91L), and he was promoted to the rank/grade of SSG/E-6 on 23 June 2009. 3. Orders 273-941, issued by the OHARNG on 30 September 2011, released him from the 945th Engineer Company in MOS 91L and assigned him to the 211th Maintenance Company, effective 30 September 2011, in MOS 94E (Radio and Communications Security Repairer), effective 30 September 2011. According to these orders, the reassignment resulted from his voluntary request, but he was not DMOSQ for the position to which he was being assigned. 4. The applicant reenlisted in the OHARNG on 18 October 2011. At the time of his reenlistment, his primary MOS was 91L (formerly MOS 62B) and he was assigned to an MOS 94E duty position, for which he was not DMOSQ. 5. In conjunction with his reenlistment, the applicant executed and signed an NGB Form 600-7-3-R-E on 18 October 2011, wherein he verified he was eligible for an REB under the Selected Reserve Incentive Program (SRIP) in the maximum amount of $10,000. a. Section II (Eligibility) of the agreement contained the following pertinent provisions, to which he affixed his initials, thereby acknowledging his understanding and concurrence: (1) "I must re-enlist/extend DMOSQ in an MOS within a Modified Table of Organization & Equipment (MTOE) or Medical Table of Distribution and Allowances (TDA) unit only regardless of State or National assigned strength levels unless I am Non-DMOSQ due to unit transition (deployment, reorganization, inactivation, or relocation) only." (2) "I am DMOSQ for the position for which I am reenlisting/extending, not coded excess, and hold the rank and grade commensurate with this position to include being the primary position holder. I am reenlisting/extending into the ARNG MOS of 91L (emphasis added)." b. Section V (Termination) of the agreement stated or showed, in pertinent part, that the applicant understood he may be terminated from incentive eligibility with recoupment for any of the following reasons: (1) voluntarily change of reenlistment/extension MOS during the contractual obligation unless assigned as a 09S (Commissioned Officer Candidate) or 09R (Cadet); or (2) failure to obtain DMOSQ within 24 months of contract start date if non-DMOSQ due to being cross-leveled for deployment or within 24 months after being moved due to unit inactivation, relocation, reorganization, or converted. 6. The applicant's Official Military Personnel File (OMPF) contains a DA Form 2166-8 (NCO Evaluation Report (NCOER)), covering the period 1 October 2011 through 30 September 2012, which shows he was rated as a Computer Detection System Repair Supervisor in MOS 94F, and his primary MOS was 94F. 7. The applicant's OMPF is void of any documents that show he obtained qualification in, or was awarded through orders, either MOS 94E or MOS 94F. 8. A memorandum from the applicant's commander, addressed to the Office of the Deputy Chief of Staff for Personnel, OHARNG and dated 13 November 2012, shows his commander requested he fill and be promoted into an MOS 94W position in the rank/grade of SFC/E-7. 9. Orders 328-903, issued by the OHARNG on 23 November 2012, released him from assignment to an MOS 94E position and assigned him to an MOS 94W position, effective 23 November 2012. 10. Orders 018-958, issued by the OHARNG on 18 January 2013, promoted him to the rank/grade of SFC/E-7 and awarded him MOS 94W as his primary MOS and MOS 91X as his secondary MOS. Additionally, these orders withdrew MOS 91L as his primary MOS. All promotion and MOS actions were effective 23 November 2012. 11. By memorandum, addressed to the Education/Incentives Office, OHARNG and dated 1 May 2013, the applicant's commander stated: Due to a lack of E7 leadership within the 211th Maintenance Company (Support) [Applicant] (94E, SSG) was promoted into MOS 94W4O with an exception to policy memorandum. At the E7 level, 94E is equivalent to the 94W MOS. SM [Applicant] was already qualified for this position since he attended all necessary [NCO Education System] NCOES schools previously. SM [Applicant] was moved into the promotion slot to provide a balanced structure within the 211th Maintenance Company. He demonstrated [sic] outstanding leadership and was the best candidate for the position. Requesting to further process the issuing of the Soldier's bonus. 12. Orders 157-911, issued by the OHARNG on 6 June 2013, reassigned him from an MOS 94W position to an MOS 91X position, effective 31 May 2013. 13. The applicant's OMPF contains an NCOER, covering the period 1 October 2012 through 30 September 2013, which shows he was rated as a Platoon Sergeant in MOS 91X, and his primary MOS was 91X. 14. The applicant provides a memorandum, dated 1 May 2013, from the service representative who signed the applicant's REB Addendum. In pertinent part, the service representative, who was serving as a Readiness NCO at the time, stated: After reviewing SFC [Applicant]'s bonus addendum I can see the multiple errors on it that caused his bonus to be cancelled and eventually submitted for recoupment. He was not in a 91L MOS position at the time of the bonus addendum being signed. I want to state that it is my belief that SFC [Applicant] signed the bonus contract in good faith. He was not trying to defraud the government. He had transferred into the 211th as a 94E MOS, shortly after that he was promoted into a 94W40 slot that the unit needed filled. SFC [Applicant] was always a primary slot holder for a MOS that unit needed. In hindsight he should have not signed a bonus contract until he was promoted into the 94W40 slot. Once he was moved into the 94W40 slot he was duty qualified and would have been eligible for a bonus. 15. The applicant submitted an ETP request that was favorably endorsed by his chain of command. By memorandum, dated 28 December 2015, the Director, Family Readiness and Warrior Support, OHARNG, forwarded the applicant's request and the Command's recommendation. In pertinent part, this individual stated: The OHARNG Education and Incentive Office requests denial of this ETP with relief of recoupment for previous payments made to SFC [Applicant]. SFC [Applicant] executed an extension on 18 October 2011 for six years under Table 1 Rule B of NGB-ARH Policy 09-026 with his unit. The REB addendum indicates that the extension was done under the 91L MOS. However, he was transferred to a 94E position 18 days prior and was not MOSQ in this position. Policy in place required Soldiers be MOSQ to qualify for this incentive unless it was due to unit transition, reorganization, or mobilization. SFC [Applicant]'s transfer order does not indicate his move was done for any of these reasons. 16. The Chief, Personnel Programs, Resources and Manpower Division, NGB reviewed and denied the applicant's ETP request on 1 February 2016, for the following reasons: * the applicant voluntarily transferred out of the contracted MOS, in violation of Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), paragraph 6.6.2 * the applicant was not DMOSQ for the contracted incentive, in violation of ARNG Decentralized State Incentive Pilot Program (DSIPP) 11-02 * the applicant did not meet the eligibility requirements to contract for the incentive, in violation of ARNG DSIPP 11-02 * the applicant's contract/bonus addendum had been corrected through the use of white-out, in violation of ARNG DSIPP 11-02 The appropriate official directed the State Incentive Manager to terminate the incentive with recoupment, effective the date of transfer. 17. The Chief, Personnel Programs, Resources and Manpower Division, NGB reviewed and denied the applicant's ETP request, a second time, on 3 February 2016, for the following reasons: * the applicant was not DMOSQ for the contracted incentive, in violation of ARNG DSIPP 11-02 * the applicant voluntarily transferred out of the contracted MOS, in violation of ARNG DSIPP 11-02 * the applicant did not meet the eligibility requirements to contract for the incentive, in violation of ARNG DSIPP 11-02 * the applicant's contract/bonus addendum had been corrected through the use of white-out, in violation of ARNG DSIPP 11-02 18. The appropriate official directed the State Incentive Manager to terminate the incentive with recoupment, effective the contract start date. 19. By memorandum dated 17 June 2016, the State Incentives Manager, OHARNG, provided the applicant with the following case details; presumably, for the purpose of supporting his request before this Board: a. A Bonus Control Number (BCN) was requested 18 October 2011 by SFC [Applicant]'s unit. The request was for a six year reenlistment bonus in the amount of $10,000 for MOS 91L. In order to accomplish this request, SFC [Applicant]'s unit would have had to answer a series of questions within the system of record (iMARC). These responses, as well as information fed from other systems, allowed iMARC to evaluate SFC [Applicant]'s eligibility for the incentive and generate the bonus agreement. b. The request remained with SFC [Applicant]'s unit until 14 December 2012, when it was transmitted to the OHARNG Education & Incentives Office. The OHARNG Education & Incentives Office approved the contract on 17 December 2012. On 21 December 2012, the ARNG Incentives Oversight Branch also approved it and established the payment information within the DFAS pay system. c. The OHARNG Education & Incentives Office proceeded to process the initial payment transaction ($5,000) beginning 21 March 2013. At that time, it was identified that the contract may need to be terminated due to SFC [Applicant] changing his MOS. It was sent to the NGB Incentive Support Team for review, who denied payment on 18 June 2013, and returned it to the State for further research and clarification. Payment was again sent to the NGB Incentive Support Team, on 18 July 2013, with additional documentation for the change in MOS. They reviewed and approved the payment on 25 July 2013, and sent it to the NGB for final review and payment. The NGB Incentive Oversight Branch approved the payment and sent it to DFAS 29 July 2013. SFC [Applicant] received this initial payment on 7 August 2013. d. SFC [Applicant]'s second installment of this bonus was due to be paid 24 July 2015, in the amount of $2,500. Forty-five days prior to this, the payment transaction appeared in the unit's queue to be reviewed and processed to the OHARNG Education & Incentives Office. They actioned this payment 6 June 2015, and identified that SFC [Applicant] was in good standing with the unit and eligible to receive payment. The OHARNG Education & Incentives Office then performed two reviews and sent the transaction to the NGB Incentive Support Team. They performed their review and returned the payment due to SFC [Applicant] changing MOSs multiple times during the contracted term. SFC [Applicant] has been in the following positions during this timeframe: * 30 September 2011 - transferred from a 91L position to a 94E position * 18 October 2011 - extended for six years and executed bonus contract for MOS 91L * 23 November 2012 - transferred from 94E position to 94W (MOS conversion due to career progression) * 31 May 2013 - transferred from 94W position to 91X e. Due to the MOS changes, the NGB Incentive Support Team identified that SFC [Applicant]'s bonus should be terminated and that an ETP could be requested should he feel that this was not accurate. On 3 February 2016, the ETP was denied by the NGB Incentives Oversight Branch due to SFC [Applicant] not being MOSQ for the contracted MOS, voluntary transfers out of the contracted MOS, and the unauthorized use of white out on the contract. The denial also identified that the State Incentive Manager would terminate the bonus with recoupment effective on the contract start date. f. Throughout this time period, SFC [Applicant] served in good standing with his assigned unit. The MOS changes that were made, were done so for the betterment of the unit and the OHARNG. Furthermore, the mistakes made in the execution of the bonus agreement as well as the issuance of payment were done by personnel at all levels of review, not by SFC [Applicant]. REFERENCES: 1. Department of the Army Pamphlet 611–21 (Personnel Selection and Classification – Military Occupational Classification and Structure) defines duty MOS as the MOS assigned to the position against which the warrant officer or enlisted Soldier is assigned, or, in the absence of a documented position, the MOS that best reflects the principle duties being performed by the incumbent. 2. ARNG DSIPP SRIP Guidance for Fiscal Year 2011, dated 29 March 2011, provides for various enlisted and officer bonus incentives. It states, Soldiers who are non-DMOSQ at time of extension must become qualified with 24 months from the contract start date. Payment will not be processed until the Soldier is DMOSQ. DISCUSSION: 1. The applicant's request for relief from recoupment of his terminated REB incentive, and an ETP allowing him to retain the $10,000 REB incentive he contracted for at the time of reenlistment, was carefully considered. 2. On 30 September 2011, the applicant was released from MOS 91L and transferred to MOS 94E. On 18 October 2011, in conjunction with his 6-year reenlistment, he contracted for an REB incentive for MOS 91L. The REB Addendum stated, in pertinent part, that he was DMOSQ for the MOS 91L position, and the incentive would be terminated if he voluntarily transferred out of the MOS unless excused due to unit transition (deployment, reorganization, inactivation, or relocation). 3. The evidence of record shows the applicant knowingly contracted for the 91L MOS REB incentive; although he had been transferred into another MOS only 18 days prior. On 23 November 2012, he was transferred from MOS 94E to MOS 94W due to career progression. Then on 31 May 2013, he was again transferred from MOS 94W to MOS 91X. 4. In August 2013, the applicant received his initial payment of the REB incentive. He was due to receive his second payment in July 2015; however, after a review by the Education and Incentives Office, the MOS discrepancy was discovered. An ETP was submitted on the applicant's behalf; however, the request was twice denied by NGB. 5. The evidence shows the NGB directed the termination of the applicant's bonus incentive with recoupment, based on the fact that he was not DMOSQ for the contracted incentive, his voluntary transfer out of the contracted MOS, and for the use of white-out in the reenlistment documents. It is also noted that the errors identified by the NGB in the ETP denial were not previously identified. 6. The applicant contends he was DMOSQ for the contracted MOS, 91L. However, it is more correct to say he was MOSQ for MOS 91L. At the time of his reenlistment, he was assigned to an MOS 94E position, which was his duty MOS at the time and for which he was non-DMOSQ. Despite his contentions to the contrary, his OMPF contains no evidence that shows he ever obtained qualification in either MOS 94E or MOS 94W, and there is no evidence that confirms he would have been eligible for the same incentive had he contracted in MOS 94E (as opposed to MOS 91L), if not for administrative error in the processing of his REB Addendum. 7. The applicant contracted to serve in an MOS 91L position; however, he did not fulfill that obligation until 31 May 2013. In fact, despite contracting for an REB incentive for MOS 91L, he made numerous position and MOS changes prior to being assigned to an MOS 91X (an MOS 91L CPMOS) position. The motive behind those moves does not discount the fact that he did not, at any time after his date of reenlistment and prior to 31 May 2013, serve in the contracted MOS. 8. The evidence shows, and members of the OHARNG confirm, the applicant erroneously received his initial REB incentive payment. Despite the first payment, the NGB denied his request for a second REB incentive payment. 9. The applicant's contentions and the documents he provided were carefully considered; however, his REB incentive was rightfully terminated for the reasons previously cited. Without evidence to the contrary, the action taken by the NGB to terminate the incentive appears to be proper. 10. Notwithstanding the NGB decision, the record shows the applicant returned to a career progression position within the MOS specified in his REB Addendum and many of the MOS changes that were made were done so for the betterment of the unit and the OHARNG. For these reasons, and as a matter of equity only, it would be appropriate to cancel ongoing recoupment actions related to his initial payment of the REB incentive. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011120 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011120 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2