IN THE CASE OF: BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210016707 APPLICANT REQUESTS: in effect, payment of unpaid monies for the Non-Prior Service Enlistment Bonus (NPSEB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 16 March 2010 * DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 16 March 2010 * National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 NPSEB Addendum Army National Guard (ARNG)) * Louisiana (LAARNG) letter, dated 11 May 2021 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 in effect, he received notice from the LAARNG which indicated he may be entitled to a previously earned enlisted bonus payment(s). Per the guidance in the notice, the applicant requests payment of unpaid monies for the NPSEB. 3. A review of the applicant's service records shows: a. On 16 March 2010, the applicant enlisted in the ARNG for a period of 8 years. In conjunction with this enlistment NGB Form 600-7-1-R-E was completed showing the following: (1) Section 2 (Eligibility) he was enlisting in the critical Military Occupational Specialty (MOS) 88M (Motor Transport Operator) assigned to the 1087th Transportation Company. He would receive a $10,000.00 bonus less taxes to serve no less than 6- years in a paid drill status. (2) Section 4 (Payments) the bonus would be paid in three installments. The first 50 percent would be paid after completion of Initial Active Duty for Training (IADT). The second 20 percent payment would be processed on his third year anniversary, and the final 30 percent would be processed on his sixth year anniversary. (3) Section 5 (Termination) he understood the bonus would be terminated if he voluntarily transferred out of the MOS for which the bonus was approved, voluntarily transferred to a non-deploying table of distribution and allowances not specifically authorized a bonus, discharged while under a suspension of favorable actions, or failed two consecutive Army Physical Fitness Tests (APFT). (4) The form bears Bonus Control Number. (5) The applicant endorsed this form. b. The applicant's Enlisted Record Brief shows he failed his APFT in November 2015. c. The applicant was ordered to active duty for training on 2 June 2011 to attend the Motor Transport Operator course. The applicant was honorably released from active duty on 29 July 2011. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant completed 1-month and 28-days of active service. It also shows in item 11 (Primary Specialty): 88M1O. d. On 14 July 2015, Orders Number 195-067, issued by the Joint Force Headquarters (HQs) – Louisiana, the applicant was reassigned from the 1087th Transportation Company to the 1083rd Transportation Company, effective 15 July 2015 at the convenience of the government to a qualified position. e. DA Form 705 (APFT Scorecard) shows the applicant: * On 7 December 2014 failed: * APFT – push-ups, sit-ups, and 2-mile run * Did not meet height/weight standards * On 13 September 2015 failed: * APFT – 2-mile run f. DA Form 5500 (Body Fat Content Worksheet), dated 13 September 2015 shows the applicant was overweight by 37 pounds and exceeded the body fat percentage by 6 percent. g. DA Form 705, dated 8 November 2015, shows the applicant failed the APFT – 2-mile run. h. DA Form 5500, dated 8 November 2015, shows the applicant was overweight by 36 pounds and exceeded the body fat percentage by 6 percent. i. The applicant was honorably separated from the ARNG on 15 March 2016 due to expiration of active status commitment in the selective Reserve. NGB Form 22 (Report of Separation and Record of Service) shows the applicant completed 6-years of service. It also shows in item 18 (Remarks); the applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)) for completion of 2- years statutory obligation. He was a participant in the Selected Reserve Incentive Program and recoupment was not required. j. On 31 March 2016, Orders Number 091-063, issued by the Joint Force HQs – Louisiana, the applicant was reassigned to the USAR Control Group (IRR), effective 15 March 2015 due to completion of 6-years ready reserve obligation. k. On 20 March 2018, Orders Number D-03-808428, issued by the U.S. Army Human Resources Command, the applicant was honorably discharged from the USAR Control Group (Reinforcement). 4. The applicant provides: a. DD Form 1966 showing his enlistment criteria to include MOS 88M. b. LAARNG letter, dated 11 May 2021, notified the applicant an audit of unpaid incentives indicated he might be entitled to a previously earned enlisted bonus payment. If he believed, he was entitled to the incentive he was required to apply to the Board in accordance with the Barring Act. 5. On 16 May 2022, in the processing of this case, the NGB, Chief Special Actions Branch, provided an advisory opinion recommending a partial approval. The advisory official stated in pertinent part: a. Based on a review of the Guard Incentives Management System (GIMS) and the applicant's digital personnel file, it appears the applicant violated the terms of his contract leading to a termination. Available documents show that the applicant failed two consecutive APFT's and two consecutive weigh-ins. The second failure was approximately three months after his second Date of Entitlement (DOE) in 2013. Based on this, the applicant's bonus was terminated and an annotation for recoupment for the funds accumulated since his last payment (approximately $400.00) was placed on his GIMS profile. However, this action is inaccurate. Based on the timeline the applicant should have received the payments on his DOE and the prorated amount of payments up until his second APFT failure in June 2013. This does not appear to have happened. b. It is the recommendation of this office that the applicant receive some relief. Based on the documents available it appears the applicant is due approximately $400.00 associated with his service prior to his second APFT failure. While the termination is warranted, the lack of payment for the applicant's service is unjust. It is also not in accordance with the terms of the applicant's contract. Repayment of this amount should sufficiently correct the applicant's records. 6. On 23 May 2022, the Army Review Board Agency (ARBA), Case Management Division, provided the applicant a copy of the advisory opinion for review and comment. As of 7 June 2022, the applicant did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Army National Guard- Special Actions Branch advisory opinion, the Board concurred with the advising official which stated the applicant violated the terms of his contract leading to a termination. Available documents show that the applicant failed two consecutive APFT's and two consecutive weigh-ins. The second failure was approximately three months after his second Date of Entitlement (DOE) in 2013. Based on this, the applicant's bonus was terminated and an annotation for recoupment for the funds accumulated since his last payment (approximately $400.00) was placed on his GIMS profile. However, this action is inaccurate. 2. The advising official determined after reviewing the timeline the applicant should have received the payments on his DOE and the prorated amount of payments up until his second APFT failure in June 2013. This does not appear to have happened. The Board agreed the applicant is due approximately $400.00 associated with his service prior to his second APFT failure. While the termination is warranted, the lack of payment for the applicant's service is unjust. It is also not in accordance with the terms of the applicant's contract. Repayment of this amount should sufficiently correct the applicant's records. Therefore, the Board granted partial relief BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 to show the applicant is due approximately $400.00 associated with his service prior. 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 payment of unpaid monies for the Non-Prior Service Enlistment Bonus (NPSEB). 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. National Guard Regulation (NGR) 600-7 (Selected Reserve Incentive Programs), prescribes policies and procedures for the administration of the Army National Guard of the United States (ARNGUS) incentive programs. These programs include: NPSEB, Enlistment Bonus (EB), Reenlistment/Extension Bonus (RB), Affiliation Bonus (AB), Student Loan Repayment Program (SLRP), Civilian Acquired Skills Program (CASP), and Prior Service Enlistment Bonus. a. Paragraph 1-11 (Personnel movement between ARNG units), a. Soldiers involuntarily transferred (due to unit inactivation, reorganization, or relocation) will be governed by the following: (1) Those who contracted for a bonus should be transferred into positions coded for their current MOS, or one within allowable substitution rules, or another critical skill and bonus unit, if possible. (2) Only if the above cannot be accomplished will a Soldier be allowed to transfer into any unit or MOS vacancy (with the exception of TDA units.). (3) Soldiers who are transferred into a MOS in which they are not qualified will have 24 months to become qualified in and awarded the MOS for their position or incentives will be terminated without recoupment. (4) Soldiers who decline a command directed reassignment, will have their incentive entitlement(s) terminated with recoupment under the following circumstances: (a) If the reassignment is within reasonable commuting distance, as defined by AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures). (b) If the Soldier was already commuting beyond reasonable commuting distance and the command directed reassignment is within that distance. b. Paragraph 1-20 (Termination), a. A Soldier's incentive eligibility and entitlement stop when any of the termination reasons listed within the applicable chapters of this regulation apply. Although the Soldier's entitlement to the incentive is terminated, the Soldier's responsibility to serve the current statutory or contractual obligation remains. b. Once a Soldier has been terminated, reinstatement of eligibility is not authorized. c. The unit commander or an authorized unit representative will initiate termination procedures when a Soldier is terminated from an incentive. c. Paragraph 1-21 (Recoupment). a. The conditions under which recoupment is warranted and the computation for the amounts to be recouped are prescribed in the chapter for each incentive. b. The Office of the Comptroller of the Army will issue specific collection procedures for the recoupment of incentive payments. c. The Incentive Manager, upon approval by the Military Personnel Office, is responsible for initiation of recoupment procedures when a Soldier is terminated from an incentive and recoupment is required. d. Refunds made by a Soldier under recoupment procedures will not affect the Soldier's period of obligated service in the ARNG. 3. Department of Defense Instructions 1205.21 (Reserve Component Incentive Programs Procedures) paragraph 6.2 states, as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that 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. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states a cash bonus is offered to eligible applicant's enlisting in the Selected Reserve and complying with all of the following eligibility requirements: * enlists in the ARNG for 8 years * enlists for a bonus MOS * completes initial active duty training or received sufficient training to be deployable 5. Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016707 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1