IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20220011706 APPLICANT REQUESTS: exception to policy for payment of a $20,000 Reenlistment/Extension Bonsu (REB) in the California Army National Guard. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4836, Oath of Extension of Enlistment or Reenlistment, 6 December 2018 * Orders 168-00065, Military Occupational Specialty, 16 June 2008 * California Army National Guard Notification od Incentive Discrepancy and Exception to Policy Process, 26 November 2019 * 2019 Title 10 orders to active duty * 2018 Title 32 order to active duty * Memorandum for Record, Bonus Exception to Policy memorandum, 22 November 2021 * Fiscal Years 2018 and 2019 Table of Distribution and Allowances * Email Exchange FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 she extended for six years on 6 December 2018 with a $20,000 bonus as a 35M, Human Intelligence Collector. She is currently sitting in a 35F (Intelligence Analyst) slot. The authorization document (MTOE) is coded as 76 TK TG. According to the position definition codes, 76 refers to an authorization for special duty assignment pay. TG pertains to an authorization to fill position by warrant officer one through 3 in MOS 350F or 352N and TK means authorization to fill by any 35 Series MOS. As such, although her position requires 35F DMOS qualification, she is authorized to fill it as a 35M according to the MTOE. She became qualified in MOS 35M in 2008. She provided her MOS qualification orders but the administrative personnel/State incentive office submitted the wrong exception to policy memorandum. They submitted one for a Soldier with the same last name as hers and sent the notification memorandum to the wrong address. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 9 January 2008. She completed training and was awarded military occupational specialty MOS) 35M, Human Intelligence Collector. She was honorably released from active duty on 6 August 2011. b. She enlisted in the Washington Army National Guard (WAARNG) on 29 July 2011. She then executed a 3-year extension of her enlistment in the WAARNG. With her 2013 extension, she signed Annex R (Reenlistment/Extension Bonus (REB) Addendum). She indicated: (1) She is reenlisting/extending as a current Soldier that is DMOSQ in her MOS. She is reenlistment/extending in MOS 35M for 3 years and will receive a total bonus amount of $5,000. (2) She acknowledged the conditions of suspension and/or termination, with or without recoupment. c. She inter-transferred to the California Army National Guard (CAARNG) on or about 15 April 2015. She extended in the ARNG for 2 years on 11 July 2015 d. On 6 December 2018, she executed a 6-year extension in the CAARNG. With her extension, she signed Annex R (Reenlistment/Extension Bonus (REB) Addendum). She indicated: (1) She is reenlisting/extending as a current Soldier that is DMOSQ in her MOS. She is reenlistment/extending in MOS 35M for which she is already currently MOSQ in for 6 years. (2) The amount and payment schedule will be as follows to include any applicable changes per Education & Incentives Operation Messages (EIOMS). She is reenlisting/extending for the 6-Year DMOSQ REB and will receive a total amount of $20,000. Her incentive will be processed in two installments. The first 50% payment will be processed the day after her current ETS upon verification of her MOS and unit of assignment qualification in GIMS. The second 50% payment will be processed on the 4th year anniversary of her contract start date provided the first installment was previously processed. 4. On 25 November 2019, the National Guard Bureau (NGB) informed the CAARNG that the applicant’s Request for Exception to Policy (ETP) to retain the $5,000.00 REB is disapproved because the applicant voluntarily transferred out of the contracted MOS which violates the Department of Defense Instruction 1205.21, paragraph 6.8.3. a. State enlisted/accessed: WAARNG; Date of agreement/enlistment: 2 January 2013; Contracted bonus addendum/agreement amount: $5,000; Contracted MOS: 35M; Current MOS: 35N b. The discrepancy identified violates DOD Instruction and the ARNG does not have the authority to approve the request to retain the incentive. Per directive from the NGB G1, the applicant is granted relief of recoupment, and therefore the State Incentive Manager will terminate the incentive without recoupment effective the date of transfer out of contracted MOS. 5. On 26 November 2019, by memorandum, CAARNG informed the applicant that a discrepancy had been discovered with her bonus contract ($5,000), and that the bonus would be terminated effective 21 December 2018 without recoupment. She may be eligible for an exception to policy and if she intended to do so, she must submit an exception to the State Incentive Manager within 45 days. 6. On 17 August 2023, the National Guard Bureau (NGB) provided an advisory opinion in the processing of her $20,000 incentive. An NGB official reiterated the applicant’s request for annulment of her incentive bonus termination and the subsequent reinstatement and payment of her incentive. The NGB official recommended approval and stated: a. Soldier reports that she signed a 6-year reenlistment bonus (REB) addendum as a 35M, Human Intelligence Collector, for a total amount of $20,000. She notes that she is currently assigned to a 35F (Intelligence Analyst) position as illustrated in the Modification Table of Organizational Equipment (MTOE). However, Soldier stresses that she is 35M duty MOS qualified (DMOQ), which she was awarded on 14 August 2008. Additionally, Soldier contends that the State Incentives Manager (IM) inadvertently added another Member’s information to her exception to policy (ETP) packet that was sent to the NGB for approval. She also alleges that the State IM mailed the termination notification to an incorrect address in instead of her actual home of record in Laguna Niguel as shown on her DA Form 5960. b. On 29 July 2011, she enlisted in the WAARNG as 35M in the grade of E-5 for a term of service of 4 years, 4 months, and 14 days. On 2 January 2013, she signed concurrently a 3-year enlistment extension and a 35M DMOSQ REB addendum for a total amount of $5,000. On 15 April 2015, Soldier completed an interstate transfer (IST) to the California Army National Guard (CAARNG). Whereas in her losing unit, Soldier previously held a 35M position (para/line no: 215-04), she was assigned to a 35F duty position (para/line no: 003-04) by her gaining unit, the Special Operations Detachment – North (SOD-N). Following her 2-year extension on 11 July 2015, she signed a 6-year extension simultaneously with a 35M DMOSQ REB addendum effective 6 December 2018. From the period of 15 April 2019 until 19 August 2020, Soldier was mobilized to Stuttgart, Germany for a contingency operation. Meanwhile, a review of Soldier’s records reflects a notification memorandum dated 6 August 2019 indicating the termination of her incentive (Bonus Control Number ) with recoupment due to her duty MOS change to 35F in reason of her IST. Subsequently, on 25 November 2019, ARNG- HRM published a memorandum informing about the termination of Soldier’s incentive and disapproval of her ETP to retain her $5,000 REB while granting her relief of recoupment. Records further show that Soldier was notified via memorandum dated 26 November 2019 regarding the violation of her REB addendum (Bonus Control Number) and her incentive termination due to not serving in her contracted MOS (35M). However, it appears that the termination notification was not mailed to Soldier’s home of record on file. Also, records indicate that Soldier was mobilized during that period. Therefore, it can be inferred that she was not duly notified about the termination. c. National Guard Reserve (NGR) 600-7, Selected Reserve Incentive Programs, provides guidelines for ARNG Soldiers with incentives who are involuntarily transferred due to unit transitions and those who voluntarily transfer within the State or interstate transfer. Pursuant to Para 1-19b, Soldiers who voluntarily transfer will be governed as follows: (1) Soldiers who contracted for an incentive must be assigned to an incentive eligible unit or incentive eligible critical skill in accordance with Fiscal Year SRIP policy in order to continue incentive eligibility. (2) Failure to join another unit or find a unit in the SELRES in six months will terminate the recipient from program eligibility. In the case of a Soldier who is assigned to an incentive qualifying position within six months or less, that period must be added to the original incentive obligation. (3) If not qualified in the MOS, Soldier must have service remaining time on their contract to enable them to become duty MOS qualified (DMOSQ) within 24 months or the incentive will be terminated with recoupment. d. On 15 April 2015, Soldier was transferred to the SOD-N, which is a MTOE unit, and therefore is incentive eligible. However, upon review of her NGB Form 22-5-, IST Soldier’s PMOS is listed as 35M whereas her DMOS with the SOD-N is 35F4S (para/line 003/04). Similarly, her transfer orders #18-504 reflect the same information while outlining her DMOS non-qualification and requirement to attend MOS school. Based on her transfer orders, Soldier is authorized continued receipt of her incentive. Meanwhile, a review of the MTOE indicates that the position filled by Soldier is coded 76 TG TK. According to the position definition codes, 76 refers to an authorization for special duty assignment pay. On the other hand, TG pertains to an authorization to fill position by W1 – W3, 350F or 352N whereas TK means authorization to fill by any 35 Series MOS. As such, although her position requires 35F DMOS qualification, Soldier is authorized to fill it as a 35M according to the MTOE. e. Upon consultation with CAARNG about this matter, it noted that Soldier is MOSQ (35M) and signed REB contract # as a 35 series with the SOD. The State further indicated that Soldier previously deployed with the SOD, has remained in good standing, and continues to be an asset to the organization. The State opined that Soldier’s incentive was erroneously terminated. Therefore, it recommends that Soldier’s incentive be reinstated and paid out. f. Though Soldier’s DMOS change (35F4S) can be viewed as a violation of her REB addendum, it is however important to note that her PMOS remains 35M, also known as her contracted MOS. This is evidenced by both orders # 93-1023 (dated 3 April 2018) and 084-002 (dated 25 March 2022) directing respectively MOS award of 35M3S and 35M4O. Soldier was originally awarded PMOS 35M1O effective 14 August 2008 upon completion of MOS training. Besides, it should be highlighted that Soldier’s position was filled in accordance with her unit MTOE, and therefore command directed. Moreover, it must also be held that Soldier was offered a $20,000 REB incentive upon reenlistment despite her DMOS. There is no doubt that the unit’s intent is to award Soldier this incentive. g. In conclusion, notwithstanding Soldier’s DMOS, she has consistently served the intelligence career field throughout her career. Even though it is true that her field specialty has changed in reason of her IST, her position was filled in accordance with the MTOE. In view of all the above, it would be in the interests of justice and equity that Soldier is awarded her incentive. Therefore, this office recommends that Soldier be granted full relief on her request. h. This opinion was coordinated with CAARNG and the ARNG Incentives Branch. 6. The applicant responded to the advisory opinion via email agreeing with the outcome. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that 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 National Guard Bureau – Special Actions Branch advisory opinion the Board concurred with the advising official finding the applicant met all the criteria to receive the associated payment. Evidence in the record show the applicant’s incentive was erroneously terminated, she was originally awarded PMOS 35M1O upon completion of MOS training. The Board noted, the applicant’s position was filled in accordance with her unit MTOE, and therefore command directed. Moreover, it must also be held that applicant was offered a $20,000 REB incentive upon reenlistment in spite of her DMOS. 2. The Board determined there is sufficient evidence to support the command’s intent of awarding the applicant her incentive. Based on the preponderance of evidence and the NBG advisory recommendation, the Board granted relief to correct the applicant’s records to show an exception to policy for payment of a $20,000 Reenlistment/Extension Bonsu (REB) in the California Army National Guard. 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 to show the applicant was awarded an exception to policy for payment of a $20,000 Reenlistment/Extension Bonsu (REB) in the California Army National Guard. 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, U.S. Code, 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, provides guidelines for ARNG Soldiers with incentives who are involuntarily transferred due to unit transitions and those who voluntarily transfer within the State or interstate transfer. Paragraph 1-19b states Soldiers who voluntarily transfer will be governed as follows: a. Soldiers who contracted for an incentive must be assigned to an incentive eligible unit or incentive eligible critical skill IAW FY SRIP policy in order to continue incentive eligibility. b. Failure to join another unit or find a unit in the SELRES in six months will terminate the recipient from program eligibility. In the case of a Soldier who is assigned to an incentive qualifying position within six months or less, that period must be added to the original incentive obligation. c. If not qualified in the MOS, Soldier must have service remaining time on their contract to enable them to become duty MOS qualified (DMOSQ) within 24 months or the incentive will be terminated with recoupment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011706 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1