ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 December 2019 DOCKET NUMBER: AR20170016764 APPLICANT REQUESTS: requests exception to policy (ETP) to be awarded the second half ($10,000.00) of his $20,000.00 Non-Prior Service Enlistment Bonus (NPSEB) incentive bonus. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 Army Board for Correction of Military Records (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: a. He enlisted in the Rhode Island Army National Guard (RIARNG) on 22 January 2008, with a Critical Skill MOS 31B (Military Police) enlistment bonus of $20,000. He successfully completed his Initial Active Duty Training (IADT) and subsequently received one half ($10,000) of his bonus, as scheduled. He was scheduled to receive the second half of his enlistment bonus on 22 January 2011; the 36-month anniversary of his enlistment. However, prior to that date, he was medically discharged from the RIARNG. b. During Annual Training (AT) orders and just days before a scheduled mobilization, he was involved in a motorcycle accident and sustained serious injuries, not due to his own misconduct. On 9 September 2010, he received a medical discharge from the RIARNG for disability resulting from serious injuries sustained in the motorcycle accident. Because he did not reach the 36-month anniversary of his enlistment, he did not receive the second half of his enlistment bonus. c. His enlistment contact Annex E does not include any language regarding bonus termination for discharge due to illness or injury. The terms relating to termination for discharge due to illness or injury are contained within NGR 600-7 and the Army National Guard Selective Reserve Incentive Program Guidance for Fiscal Year 2007. He did not know and had no reason to know of the existence of any outside regulation or policy which adds to the lists of grounds for termination of a bonus, and after reviewing the plain language of his contract believed he would still receive the scheduled bonus payment. d. Prior to his discharge, he was not provided any legal counsel regarding the Medical Evaluation Board (MEB) process; however, he did sign paperwork waiving the MEB process. Had he met with legal counsel, counsel would have advised him of any impact on his enlistment bonus as the result of waiving the MEB process. It is safe to assume that if he had not waived the MEB process, he would not have been discharged prior to the 36-month anniversary of his enlistment, and thus received the remainder of his enlistment bonus. This is a safe assumption in light of the average amount of time it takes the MEB process to formally determine whether a Solider is fit for continued military service. e. He was discharged 4.5 months shy of the 36-month anniversary of his enlistment. Given the amount of time he served honorably in the RIARNG, a reasonable person would say that he substantially complied with the terms of his contract entitling him to the remainder of his enlistment bonus. He was involved in a motorcycle accident that prevented him from reaching the 36-month anniversary of his enlistment. Under the circumstances, a reasonable person would say that it is unjust that he did not receive the remainder of his enlistment bonus. He exhausted all his administrative remedies at the state level, he is requesting that ABCMR correct this injustice. 3. A review of the applicant’s service records shows: a. He enlisted in the RIARNG on 22 January 2008. b. His ARNG Enlistment/Reenlistment Agreement Service Requirements and Methods of Fulfillment, dated 22 January 2008, shows he enlisted for an initial enlistment as a non-prior service member with no previous military service on active duty, or active duty for training in the Armed Forces of the United States. c. He signed Annex E to DD Form 4 – NPSEB Addendum ARNG on 22 January 2008. This addendum shows he was enlisting as a non-prior service enlistee for a minimum of 6 years in the ARNG. He acknowledged: (1) He was enlisting in the RIARNG unit, 115 Military Police as a 31B (Military Police) for 6 years, under the NPSEB Program. (2) He would receive a total bonus payment in the amount of $20,000 for a 6- year enlistment. d. Annex E to DD Form 4 – NPSEB Addendum ARNG, Section VI – Termination with Recoupment, states he will be terminated from bonus eligibility, with recoupment, if he: (1) Become an unsatisfactory participant by— a. Accumulating 9 unexcused absences within a 12-month period effective on the date of the 9th unexcused absence, or— b. Failing to attend or complete Annual Training (AT) without commander approval (2) Accept a Military Technician position and on the effective date of my orders have not served at least 6 months of the incentive contract term. (3) Accept a Title 10 or Title 32 AGR tour and on the effective date of my orders have not served at least 6 months of the incentive contract term. (4) Fail to extend within 30 days of my return to active status for any time served in the Inactive National Guard (ING). (5) Exceed maximum time in the ING. Recoupment will be calculated from the date of transfer into the ING. (6) Voluntarily transfer into a non-critical skill MOS or transfer from the unit for which the bonus was awarded upon enlistment. Recoupment will be calculated from the date of transfer. (7) Do not become qualified in or awarded as primary the MOS required for my position within 36-months of transfer due to unit inactivation, reorganization, or relocation. Termination will be effective the date of transfer. (8) Separate from the ARNG for any reason unless due to death, injury, illness, or other impairment not the result of my own misconduct. (9) Become a participant in the SMP/ROTC advanced course or receive an ROTC scholarship and have not served more than one year of the enlisted incentive contract term. (10) Accept a commission as an officer or appointment as a warrant officer and have served more than one year of the enlisted incentive contract term. e. He entered Initial Active Duty for Training (IADT) on 11 September 2008 and upon completion of training, he was honorably released from active duty on 12 February 2009. f. On 9 September 2010, he was honorably discharged from the RIARNG under the provisions of Army Regulation 40-501, (Standards of Medical Fitness) for medically unfit. He completed 2 years, 7 months, and 18 days of net service. 4. On 16 May 2016, the Army Review Boards Agency received an advisory opinion from the National Guard Bureau (NGB), which recommended disapproval of the applicant’s request to retain the final payment of the $20,000 non-prior service enlisted bonus. An NGB official stated the applicant separated prior to completion of the service obligation, which violates the Department of Defense Instruction 1205.21. paragraph 6.9.1. a. The discrepancy identified in paragraph 2 violates a Department of Defense Instruction and the ARNG does not have the authority to approve this request. The State Incentive Manager will terminate the incentive without recoupment effective the date of discharge. b. The applicant may file a claim with the Army Board of Correction for Military Records (ABCMR) in accordance with Army Regulation 15-185, if there is belief an error or injustice still exists. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments. No response was received. 6. Department of Defense Instruction 1205.21 assigns responsibilities, and prescribes procedures under DoD Directive 1205.20, Reserve Component Incentive Programs for management of the Reserve components incentive programs. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. The Board determined that pursuant to regulatory guidance, the applicant did not meet the statutory years of service to be entitled to the full amount of his NPSEB. The Board also notes that since he was involved in a vehicle accident, not due to his own misconduct, the first half of his NPSEB was not recouped. But since he was discharged due to being medically unfit and did not complete his remaining service obligation for the NPSEB, he was not entitled to the remaining NPSEB funds. Additionally, the Board concurred with the NGB advisory opinion, and agreed that there was no error or injustice in this case. The Board determined the applicant does not warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Department of Defense Instruction (DoDI) 1205.21 (Reserve Component Incentive Programs Procedures) prescribes procedures for management of the Reserve components incentive programs. Exceptions to Recoupment. Recoupment is not required in the following circumstances when an incentive is terminated in the event of death, injury, illness, or other impairment not the result of the member's own misconduct. 3. Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 1 January 2007 – 31 March 2007 (Policy Number 07-04) states, in pertinent part, 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, the member must refund a prorated amount to the Government, if such termination is for failing to participate satisfactorily in required training during the entire period of service agreed to or separates from the ARNG for any reason. 4. National Guard Guidance, Selected Reserve Incentive Program Policy 13-01 (9), Non-Prior Service Bonus (NPSEB) states: * a recipient must enlist for a critical skill vacancy in the grade of E-4 or below * a recipient must fill a valid, top-loaded vacancy in a Modified Table of Organization and Equipment or a Medical Table of Distribution and Allowances * the NPSEB incentive addendum must contain the approved REQUEST automated RTID issued by the Guidance Counselor Resource Center * the MEPS Guidance Counselor is responsible for ensuring the recipient is eligible for NPSEB //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016764 6 1