ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 April 2019

	DOCKET NUMBER:  AR20160014699


APPLICANT REQUESTS: Reversal of the Exception to Policy (ETP) denial to retain a $10,000.00 Reenlistment Bonus (REB).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) or DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 24 July 2014
* DA Form 4836, dated 24 July 2014
* Memorandum, Subject: Request for ETP for the applicant, dated 17 February 2015
* Memorandum for Record (MFR), Subject: Applicant’s ETP, dated 24 February 2015
* Memorandum, Subject: Request for ETP denial, dated 28 October 2015
* MFR, Subject: Intent to Apply for Army Board for Correction of Military Records (ABCMR), dated 9 January 2016
* Two letters of endorsement

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states, he believed, when he signed his reenlistment contract he was in military occupational specialty (MOS) 12H (Construction Engineering Supervisor) based on his paragraph and line number.  He was advised by his career counselor preparing his contract the bonus addendum needed to read 12H due to the fact he was in a 12H slot on the unit manning report and his Noncommissioned Officer Evaluation Report (NCOER) stated he was a 12H.  He now understands that although in a 12H slot, he was currently a 12W (Carpentry and Masonry Specialist) which is a feeder MOS according to the U.S. Army Human Resources Command.

3.  A review of the applicant’s service records show the following on:

* 5 November 2008 – enlisted in the Nevada Army National Guard (NVARNG) for a period of 6 years
* 24 July 2014 – DA Form 4836 was completed showing the applicant extended his enlistment for a period of 6 years; in conjunction with the extension NGB Form 600-7-3-R-E was completed showing the following in:

* section 2 (Eligibility) he was extending Duty MOS Qualified (DMOSQ) in MOS 12H for 6 years
* section 3 (Bonus Amount and Payments) he was reenlisting for a 6 year DMOSQ REB and would receive $10,00.00; the first 50% would be processed the day after his current expiration term of service and verification of his MOS and the other 50% would be processed on his four year anniversary

* DA Form 2166-8 (NCOER) with a through date of 19 July 2014 shows in Part I (Administrative Data) his primary MOS code as 12W and he was evaluated in DMOS 12W
* DA Forms 1059 (Service School Academic Evaluation Report) shows he attended and completed phase 1 of the 12H course from 1 – 12 February 2016 and phase 2 from 12 – 26 February 2016

4.  The applicant provides:

	a.  Memorandum, Subject: Request for ETP, that states the applicant reenlisted for 6 years with a $10,000.00 incentive on 30 January 2015 [sic].  However, he extended for a REB as a sergeant (SGT)/E-5 in a staff sergeant (SSG)/E-6 slot, which is a 12H position, prior to extension when he was qualified as a 12W.  As an engineer 12W converts to 12H at the E-6 level.  He was prematurely reenlisted in a level higher, which shows him having a MOS mismatch, thus violating paragraph 2 of section 11 of his addendum.  He was theoretically MOSQ for career progression.  It is requested his reenlistment bonus be processed in his favor.

	b.  Self-authored MFR restating the same issues as the request for ETP memorandum.

	c.  Memorandum, Subject: Request for ETP for REB for the applicant, wherein his request for ETP to retain his $10,000.00 REB was disapproved for not serving in the authorized military grade and skill qualification commensurate with the vacancy, which violated Department of Defense Instructions (DODI) 1205.21, paragraph E5.1.1.7.

	d.  Self-authored MFR, that states it was his intent to apply to the ABCMR for correction of his record.

	e.  Two endorsement letters, that state his bonus was pending approval based on a contract error out of his control.  He was qualified to receive the bonus and extended under good faith and understanding while in MOS 12W but was slotted in MOS 12H.

5.  On 5 October 2016, the NGB reviewed the applicant's records and rendered an advisory opinion in his case.  After a thorough review, the Deputy Chief, Personnel Policy Division opined that:

	a.  On 24 July 2014, the applicant, then SGT, extended his enlistment for 6 years,
to include a $10,000.00 REB, bonus control number R-------NV, DMOS 12H.  During this time, he was a qualified 12W, a feeder MOS to 12H, assigned to a higher graded position, coded DMOS 12H.  The retention NCO at the time utilized the 12H DMOS when generating the bonus addendum within the retention management software, which may have caused the error to occur.  At no fault of the applicant, he signed his enlistment contract and bonus addendum, with the understanding that he was entitled to the REB.

	b.  It would be fair and just to allow the applicant to maintain his eligibility to the REB in accordance with Department of Defense memorandum, dated 21 May 2008, Subject:
Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or
Stipends, "any individual who enters into a written agreement that contains specified
conditions for receipt of a bonus, special pay, educational benefit, or stipend is entitled
to the full amount of the pay or benefit if the individual fulfills the conditions for that pay
or benefit."  Recommend approval; the applicant is eligible to retain the $10,000.00 REB with relief from recoupment, to include all monies recouped to be paid to the Soldier.  The advisory opinion was coordinated with the NGB incentives branch and the NVARNG concurs with the recommendation.

6.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal.  He did not respond

7.  Department of Defense Instructions (DODI) 1205.21 (Reserve Component Incentive Programs Procedures) states the applicant must hold the military grade and skill qualification commensurate with the vacancy. 

8.  ARNG Selected Reserve Incentive Policy (SRIP) Fiscal Year (FY) 2014, dated 22 May 2014, states members must reenlist/extend in an MOS that matches the authorized military grade commensurate with the position for which reenlisting/extending.  A Soldier non-DMOSQ must become DMOSQ within 24 months from the contract start date.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  In the Board’s view, the reenlistment that resulted in the disqualification was based upon a career counselor failing to properly advise the applicant about the ramification of reenlisting when the applicant do so.  For that reason, the Board concluded that there was an injustice created and, therefore, recommended granting full relief. 

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:x	:x	:x	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


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 records of the individual concerned be corrected by showing an Exception to Policy was approved authorizing the applicant to receive the Reenlistment Bonus, and any monies recouped refunded to the applicant.
	 
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.





REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  DODI 1205.21 (Reserve Component Incentive Programs Procedures) prescribes procedures for incentive programs.  Section 6.2 (Written Agreements) states, in part, as a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating 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.  Paragraph E5.1.1.7 states the applicant must hold the military grade and skill qualification commensurate with the vacancy. 

3.  ARNG SRIP FY 14, dated 22 May 2014, states members must reenlist/extend in an MOS that matches the authorized military grade commensurate with the position for which reenlisting/extending.  A Soldier non-DMOSQ must become DMOSQ within 24 months from the contract start date.

ABCMR Record of Proceedings (cont)	AR20160014699
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