BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20170005058 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 BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20170005058 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 and Army National Guard records of the individual concerned be corrected by: a. showing his entitlement to the initial payment ($10,000.00) of the $20,000.00 Enlisted Affiliation Bonus he contracted for under the Selected Reserve Incentive Program for military occupational specialty 31B (Military Police) and assignment to a critical unit; and b. notifying the Defense Finance and Accounting Service of authorization for the individual to receive the previously authorized initial payment ($10,000.00) of the $20,000.00 Enlisted Accessions Bonus under Selected Reserve Incentive Program (that was subsequently directed to be recouped), thereby reinstating the entitlement, and also eliminating in its entirety the current balance of any associated outstanding debt owed the U.S. Government. 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 his records to show entitlement to the second half of the Enlisted Affiliation Bonus for military occupational specialty 31B (Military Police) or entitlement to an Enlisted Affiliation Bonus for military occupational specialty 11B (Infantryman) in the amount of $20,000.00. _____________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: 22 June 2017 DOCKET NUMBER: AR20170005058 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 military service records to show entitlement to an Enlisted Affiliation Bonus (EAB) for military occupational specialty (MOS) 11B (Infantryman) in the amount of $20,000.00. He also requests cancellation of the recoupment action established by the California Army National Guard (CAARNG) Incentives Task Force (ITF) for MOS 31B (Military Police) and reimbursement of all payments collected as a result of the recoupment action. 2. The applicant states he had prior honorable service in the U.S. Marine Corps (USMC) as an infantry rifleman (specialty code 0311). He decided to transfer to the CAARNG based on a Selected Reserve Incentive Program (SRIP) EAB incentive being offered. He was qualified to serve in MOS 11B (Infantryman). a. He states that he relied on information provided by the CAARNG recruiter. The recruiter offered him the opportunity to choose an MOS and he did so based on a unit that was located near his home. b. The applicant enlisted on 11 June 2008 for training in MOS 31B and assignment to a critical unit with a $20,000.00 EAB, and he received one half of the $20,000.00 EAB. He completed his training for MOS 31B in 2009. He asked the recruiter about the remainder of the EAB and was told he would receive it on the third anniversary of his enlistment. c. He states he was then assigned to different units due to his prior-service qualification as an infantryman. He was not informed that the transfers would have an adverse effect on his EAB and he relied on subject matter experts when the decisions were made. In 2011, he inquired about the remainder of the EAB when he did not receive it on the third anniversary. In 2012, he learned he did not qualify for the EAB at the time of enlistment. d. The CAARNG ITF notified him it had determined he was not eligible for the EAB at the time of his enlistment and the bonus would be recouped. He requested an exception to policy, but the National Guard Bureau (NGB) denied his request. e. Action was then taken to recoup his EAB by garnishing his 2015 and 2016 Federal tax refunds. He concludes by stating he completed his 6-year service obligation, he served honorably and in good faith, and the recoupment action is unjust. 3. The applicant provides a self-authored statement (summarized above) and copies of his USMC discharge document, ARNG enlistment documents, academic evaluation reports, EAB audit forms, and finance records/documents. CONSIDERATION OF EVIDENCE: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall evaluate the evidence in a light most favorable to the former Soldier. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty (USMC) on 6 December 2000, was honorably released from active duty on 10 December 2004, and transferred to a USMC unit to complete his Reserve service obligation. He had completed 4 years and 5 days of net active service this period. His DD Form 214 also shows in: * item 11 (Primary Specialty), 0311, Rifleman; 3 years, 7 months * item 14 (Military Education), School of Infantry; 7 weeks, April 2001 3. The applicant's enlistment documents, that include a DD Form 4 (Enlistment/ Reenlistment Document – Armed Forces of the United States), NGB Form 21 (Annex A – DD Form 4, Enlistment/Reenlistment Agreement – ARNG), NGB Form 600-7-4-R-E (Annex B to DD Form 4 – EAB Addendum ARNG of the United States (ARNGUS)), and DD Form 1966 (Record of Military Processing – ARNGUS), show he enlisted in the ARNGUS and in the CAARNG on 11 June 2008 for a period of 6 years (grade E-5) under the SRIP EAB incentive for MOS 31B in a critical unit. The documents shows he was MOS qualified (MOSQ) for an MOS 31B duty position and assignment to a critical unit (330th Military Police (MP) Company) in MOS 31B with a $20,000.00 EAB. Both the applicant and the recruiter signed the documents. 4. A Noncommissioned Evaluation Report (NCOER), covering the period 6 June 2008 through 30 November 2008 shows: * he failed the Army Physical Fitness Test (APFT) on 7 November 2008 * a "successful" rating for performance * a "superior" rating for potential 5. Two DA Forms 1059 (Service School Academic Evaluation Reports) show the applicant successfully completed the Basic MP course on 15 August 2009. 6. Three NCOERs for the periods specified below show: * during the period 1 December 2008 through 30 November 2009 * he passed the APFT on 4 April 2009 * a "successful" rating for performance * a "superior" rating for potential * during the period 1 December 2009 through 30 November 2010 * he failed the APFT on 2 October 2010 * a "successful" rating for performance * a "fair" rating for potential * during the period 1 December 2010 through 30 November 2011 * he failed the APFT on 8 July 2011 * "poor" ratings for performance and potential 7. Orders issued by Joint Force Headquarters, CAARNG, Sacramento, CA, pertaining to the applicant show: * Orders 177-1063, dated 25 June 2012, transferred him from 330th MP Company to Headquarters and Headquarters Troop, 1st Squadron, 18th Cavalry; Duty MOS 11B2O, effective 22 June 2012; he was not duty MOSQ * Orders 181-1005, dated 29 June 2012, withdrew Primary MOS (PMOS) 31B2O and awarded him PMOS 11B2O, effective 28 June 2012 * Orders 156-1036, dated 5 June 2014, honorably discharged him from the ARNG effective 10 June 2014 8. The applicant provided the following additional documents: a. Headquarters, U.S. Army Recruiting Command, memorandum, dated 10 October 2007, subject: Conversion of Armed Forces Skill Codes or Rates to an Army MOS, and Headquarters, U.S. Army Infantry School, Fort Benning, GA, memorandum for record, dated 1 February 2008, subject: Conversion of U.S. Navy , Marine Corps, and Air Force Enlisted MOS Identifiers, show USMC specialty 0311 (Rifleman) converts to Army MOS 11B (Infantryman). b. ARNG SRIP Policy Number 07-05/07-06 Critical MOS List for the period 16 June 2007 to 31 December 2008 shows MOS 31B for the CAARNG. Another MOS is circled on the list, but it is not legible. c. The ITF Bonus Audit Form, dated 4 February 2013, shows the applicant was not eligible for an EAB because he was classified in MOS 09S (Duty Soldier) and not MOSQ for MOS 31B on the date of enlistment (11 June 2008). He was paid $10,000.00 on 22 October 2008 prior to being MOSQ. He was MOSQ in MOS 31B on 15 August 2009 and awarded MOS 11B on 28 June 2012. A note shows the applicant would have been eligible for the EAB (MOS 11B), if he had enlisted 6 months later. It also shows the applicant was not entitled to the initial EAB payment and recoupment was recommended. d. Defense Finance and Accounting Service (DFAS) payment records and documents, printed 4 February 2013, show the applicant's EAB was suspended by the CAARNG and terminated by DFAS effective 10 June 2011. 9. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA. a. The advisory official recommends full administrative relief of the first installment payment for the applicant's EAB. b. The advisory official states that, based on the evidence provided, the applicant was not eligible to contract for the bonus he received in accordance with ARNG SRIP 07-06. Despite his ineligibility, he was offered the incorrect bonus by the CAARNG. The applicant was a prior-service enlistee (USMC Reserve) and his previous MOS was equivalent to a critical MOS (11B) at the time of his enlistment. The applicant would have been fully eligible for a $15,000.00 prior-service enlistment bonus (PSEB) to which his previous MOS (11B) or the MOS he enlisted for (MOS 31B) would have qualified him to receive. However, the applicant was offered a bonus he was ineligible for due to no fault of his own. He became MOSQ (in MOS 31B, effective 15 August 2009) within the required time frame for a PSEB. The applicant completed his ARNG service obligation and received an honorable discharge on 10 June 2014. c. The advisory official evaluated the case (summarized above) in the most favorable light and made every attempt possible to give the applicant every benefit of the doubt. The ARNG believes this evaluation is rendered in the spirit of the National Defense Authorization Act for Fiscal Year 2017 (NDAA FY 17). The NGB advisory official concludes the applicant was not eligible to contract for the bonus he received; however, he fully qualified for another bonus which he was not offered. With consideration to the evidence provided and circumstances of the case, it appears the applicant relied solely on the subject matter experts to offer him a bonus he was eligible for. The applicant fulfilled his service obligation commitment to the CAARNG and should not be penalized. 10. On 23 May 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. On 23 May 2017, the applicant responded, noting the NGB advisory opinion looks favorable and he expressed his thanks. REFERENCES: 1. NDAA FY 17, section 671(c) (Benefits Paid to Members of California National Guard), provides that the Secretary of Defense shall conduct a review of all bonus pays, special pays, student loan repayments, and similar special payments that were paid to members of the National Guard of the State of California during the period beginning 1 January 2004 and ending 31 December 2015 and states the board of review concerned will carry out a complete review of all incentive contracts awarded to members for which the CAARNG has reason to believe a recoupment of pay may be warranted, to determine: a.  Whether the members were eligible for the contract(s) and whether the contract(s) accurately specified the amounts of pay for which they were eligible. (1)  If any member is determined not to have been eligible for an incentive payment paid, the board will determine whether waiver of recoupment is warranted. (2)  The board of review will determine a waiver of recoupment is warranted unless the board makes an affirmative determination by a preponderance of evidence that the member knew or reasonably should have known the member was ineligible for the incentive pay otherwise subject to recoupment. b.  If any incentive payments paid to any member has been recouped and whether the recoupment was unwarranted. The board of review shall determine that recoupment was unwarranted unless the board makes an affirmative determination, by a preponderance of evidence that the member knew or reasonably should have known that the member was ineligible for the incentive pay otherwise subject to recoupment. 2. A memorandum, Secretary of the Army, dated 4 January 2017, subject: Army Review of CAARNG Bonus and Student Loan Repayment Cases, states cases referred to the Army Board of Corrections of Military Records (ABCMR) to be adjudicated will comply with the standards contained NDAA FY 17, section 671(c); specifically, that ABCMR shall determine: a.  That waiver of recoupment is warranted with respect to a Soldier unless the Board makes an affirmative determination by a preponderance of evidence that the Soldier knew or reasonably should have known that the Soldier was ineligible for payments at issue. b.  The existence of a signed contract or other document showing that a Soldier knew that his or her bonus payments were tied to a specific length of service and failed to serve that length of time while retaining all payment, may be sufficient evidence to conclude that a Soldier "knew or reasonably should have known" that the Soldier was not entitled to the payments. 3. National Guard Regulation 600-7 (SRIP) provides ARNG policies, procedures, and implementation of the SRIP. Paragraph 1-6 states Soldiers who entered into agreements under those incentive programs will continue to participate according to their contractual agreements and this regulation where applicable. This regulation does not change the conditions of entitlement, eligibility criteria, or benefits of earlier incentive programs. Total incentive amounts and anniversary payment schedules specified in the original incentive agreements executed at the time of enlistment, reenlistment, extension, or affiliation are unchanged. Retroactive entitlement or reinstatement based on the revised or amended policy contained in this regulation is not authorized. 4. Department of Defense Financial Management Regulation 7000.14-R, Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), governs active duty and reserve military pay. Chapter 56 (Ready Reserve Accession, Affiliation, Enlistment, and Retention Bonuses) establishes policy guidance pertaining to the accession, affiliation, enlistment, and retention bonuses for members of the Ready Reserve. Paragraph 5605 (EAB) and paragraph 5605 (PSEB) both show a bonus (EAB or PSEB) may only be paid to a person who meets and satisfies each of the specified eligibility requirements. DISCUSSION: 1. The applicant contends his military service records should be corrected to show entitlement to an EAB for MOS 11B in the amount of $20,000.00 with cancellation of the recoupment action established by the CAARNG ITF and reimbursement of all payments collected as a result of the recoupment action. 2. NDAA FY 17, section 617(c), and Secretary of the Army memorandum, dated 4 January 2017, state this Board will: a.  Address whether the applicant was eligible for the incentive contract(s), eligible for the payment(s) received, and if the full length of time tied to the contractual obligation was served. b.  Determine waiver of recoupment is warranted, unless the Board makes an affirmative determination, by a preponderance of evidence, that the applicant knew or reasonably knew if they were ineligible for incentive pay received. The existence of a signed contract or other document showing that the applicant knew that his or her bonus payments were tied to a specific length of service and did not serve that length of time while retaining all payment, will be sufficient evidence to conclude that they "knew or reasonably should have known" that he or she was not entitled to the payment(s). 3. Contract Eligibility. The applicant enlisted on 11 June 2008 for a period of 6 years for MOS 31B and assignment to a critical unit with a $20,000.00 EAB. He decided to enlist for MOS 31B with assignment to a critical unit near his home. a. He was not eligible to enlist in MOS 31B to contract for an EAB of $20,000.00 because he did not met the criteria outlined in NGB Policy Number 07-06. b. He was qualified to enlist for a PSEB of $15,000.00 based on his prior-service qualification in an infantry MOS with the USMC. MOS 11B was not on the EAB list (i.e., affiliated with a critical unit); it was added 6 months later. 4. Incentive Eligibility. a. The applicant was ineligible at the time he received his first payment of $10,000.00 because he was not MOSQ. He later became MOSQ in MOS 31B upon completion of training on 15 August 2009. b. The applicant failed the APFT in 2010 and 2011 and he received "poor" ratings for duty performance and potential in MOS 31B during the period December 2010 through November 2011. c. In June 2012, MOS 31B was withdrawn as the applicant's PMOS. He was awarded PMOS 11B and assigned to an infantry unit. d. The applicant was not eligible, nor did he receive the second bonus installment of $10,000.00. 5. The CAARNG ITF audit that led to establishment of the recoupment of $10,000.00 shows the applicant was not eligible for an EAB because he was not MOSQ for MOS 31B on the date of enlistment (11 June 2008). 6. Length of Service Relative to the Incentive(s). The applicant was discharged on 10 June 2014 upon completion of the 6-year contractual service obligation. However, he did not serve in the EAB MOS for the entire period of the contract. 7. The sincerity of the applicant's comments (i.e., that he relied on subject matter experts with respect to the conditions for his EAB MOS and units of assignment) is not in dispute. a. The applicant had more than 4 years of prior service and he enlisted in grade E-5. It is reasonable to conclude that he understood the requirements to satisfactorily serve in the bonus MOS with assignment to a critical unit during the entire period of his 6-year obligation. b. The applicant failed to successfully perform in MOS 31B and in the affiliated critical unit for which he received the EAB. 8. The NGB advisory official recommends administrative relief of the first installment payment for the applicant's EAB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170005058 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170005058 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2