IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20220011857 APPLICANT REQUESTS: reversal of the National Guard Bureau’s (NGB) denial of his exception to policy request to retain the Non-Prior Service Enlistment Bonus (NPSEB) in the Florida Army National Guard (FLARNG). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record). * Pay Adjustment Authorization * Sworn Statement * Denial Memorandum of Request Exception to Policy * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Transfer Orders * Annex E (Non-Prior Service Enlistment Bonus) Addendum * Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract 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: a. The reason he did not apply to ABCMR in a timely fashion was that he was not aware of this process. He only became aware of this process in 2020 when he experienced a situation with the Blended Retirement System Continuation Pay. He submitted a case through ABCMR in 2020 and received a decision in June of this year. He has since decided to submit this case. Pertinent details: - He enlisted in 2008 and received 1/2 of his enlistment bonus in 2009 after completing Infantry OSUT (one station unit training) (28 August 2009) - This bonus ($10,000) was subsequently recouped in 2014. – He submitted an ETP (exception to policy) which was denied – He believes this recoupment of $10,000 some 5 years after the fact was an injustice on the basis provided as well as the hardship it created for him during that time. b. One of the documents he provides contains the details of the recoupment, denial of ETP, and the explanation provided by the USPFO (United States Property and Fiscal Officer) for doing so. He would note that his sworn statement only acknowledges the ETP denial and nothing of ABCMR as this process was not shared with him. The ABCMR reference in the Pay Adjustment Authorization document was dated and signed after his sworn statement. He also attached his ROTC Scholarship Agreement. This agreement was entered into and signed by him and his Professor of Military Science, on 8 October 2009. c. The reason given for the recoupment was that he entered the Simultaneous Membership Program (SMP) ROTC contract prior to becoming fully eligible as the school year started 24 August 2009. - There are several reasons he believes this was unjust – (1) His ROTC recruiter articulated that he would forfeit the 2nd half of the bonus. He never articulated he would forfeit the 1st half. This was never discussed. The bonus was issued in 2009 and was a non- issue. (2) He signed his ROTC Scholarship on 8 October 2009. The document referencing the violation of his enlistment bonus (Annex E) states under Section VI – Termination with Recoupment #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". The problem with this interpretation is that his ROTC Scholarship was signed on October 8th and his effective date of enrollment is listed as 8 October 2009 (Item T, DA Form 597-3). Essentially, the bonus was recouped based on the date school enrollment began, not the date he agreed to enroll in ROTC. Again, none of this was explained to him as a possibility at the time. (3) Finally, the bonus was recouped on short notice 5 years later. This created a significant financial hardship at the time. 3. Review of the applicant’s service records shows: a. He enlisted in the FLARNG on 20 August 2008. In conjunction with his enlistment, he signed Annex E, Non-Prior Service Enlistment Bonus Addendum. * He enlisted for assignment to 2153rd Finance Detachment in military occupational specialty (MOS) 44C, Finance Specialist * He enlisted for a non-critical skill under 6x2 or 8x0 enlistment option and would receive NPS Non-Critical Bonus of $20,000 paid 50/50 * First 50% is paid upon completion of initial entry training and the second 50% is paid on the 36th-month anniversary * Bonus would be terminated without recoupment if he became a participant in the SMP/ROTC advanced course or receive an ROTC scholarship and have served more than 1 year of the enlisted incentive contract term b. He entered active duty for training on 4 May 2009 and completed training for award of MOS 11B, Infantryman. He was honorably released from ADT on 27 August 2009. c. On 8 October 2009, he signed an Army ROTC Scholarship Cadet Contract that promised him payment of scholarship benefits for 2 years, University of Florida, beginning on 24 August 2009 and ending on 1 May 2011. d. He was honorably from the FLARNG on 15 December 2011 to accept appointment as a commissioned officer. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 3 years, 3 months, and 26 days of his 6-year enlistment and his MOS is listed as 11B. e. He was appointed as a Reserve commissioned officer of the FLARNG on 16 December 2011. He completed the Signal Corps Basic Officer Leader Course in 2012 and he was promoted to captain in 2016. f. On 31 March 2014, the NGB denied his exception to policy request to retain the NPSEB incentive. The NGB referenced the ARNG Selected Reserve Incentive Program (SRIP) Policy Guidance for Fiscal Year 2007 (Policy Number 07-06), 10 August 2007. (1) An ETP to retain the $20,000.00 NPSEB for the discrepancy(ies) listed below is denied. The State Incentive Manager (IM) will terminate the incentive with recoupment. The applicant entered the Simultaneous Membership Program (SMP)/Reserve Officer's Training Corp (ROTC) prior to becoming fully eligible for his incentive which violates AR 135-7 and ARNG SRIP 07-06. (2) The applicant enlisted for Florida, Unit Identification Code on 20 August 2008, Contracted bonus addendum/agreement amount: $20,000.00. Contracted MOS was 11B; Current AOC/MOS: 25A (3) The applicant enlisted into the FLARNG for Non-Critical Skill bonus in MOS 44C. Prior to shipping to initial entry training (IET) he voluntarily requested to change his MOS to 11B to accommodate the ROTC contract which was signed after his enlistment contract. He became qualified in MOS 11B on 28 August 2009. The commencement of class IAW the ROTC contract was 24 August 2009, 4 days prior to MOS Qualification. National Guard Regulation (NGR) 600-7, Selected Reserve Incentive Programs, Chapter 2, Paragraph 2-8.d terminates this incentive effective the class start date; therefore, the applicant did not meet the eligibility requirements to receive payment. 5. On 10 August 2023, the NGB provided an advisory opinion in the processing of the applicant’s case. The advisory official referenced the Selected Reserve Incentive Program (SRIP) Policy Guidance for Fiscal Year 2007 (Policy Number 07-06), 10 August 2007, National Guard Regulation (NGR) 600-7, 26 March 1999, and Department of Defense Instruction (DODI) 1205.21 Reserve Component Incentive Programs Procedures, 20 September 1999. The NGB official restated the applicant’s request for a refund of his $10,000 bonus recoupment payment and recommended approval. The NGB official stated: a. The applicant joined the FLARNG on 20 August 2008 as a Non-Prior Service (NPS) enlistee in the rank/pay grade of PV2/E2. As of today, he is still serving as a Traditional Guardsman in the rank/pay grade of CPT/O3. He currently serves as his Battalion’s S6/Signal Staff Officer. b. At the time of enlistment, he signed a $20,000 NPS Non-Critical Skill bonus contract. Incentive eligibility requirements and 50/50 payment schedule stated that the first $10,000 payout is due upon completing Initial Active Duty for Training (IADT) and awarded the MOS of 44C- Finance Technician. The second and final bonus payout would be paid at the 36th month enlistment anniversary. The SM’s eligibility became invalid for the NPS Non-Critical Skill bonus contract he signed, when he was transferred from Finance to an Infantry unit and MOS, effective 1 May 2009 (transfer order #117- 014), yet FLARNG unit leadership and Incentives office still processed the 50% $10,000 bonus payment (Enclosure 1) on 18 December 2009 at no fault of the applicant. c. Several years after the bonus payment, the applicant was notified that his bonus contract was terminated with recoupment of the $10,000 paid out. In response, the applicant submitted an exception to policy to retain the total NPS enlistment bonus contract amount of $20,000 on 31 March 2014. His request was ultimately denied, and he complied by submitting a recoupment packet and full payment of $10,000 to the FLARNG US Property & Fiscal Office. d. An approval to refund his recoupment payment of $10,000 would reverse a financial burden imposed upon a Soldier who has continued to serve at a greater responsibility and beyond the date he agreed to initially serve as stated in the bonus contract. Furthermore, injustice did occur at no fault of the applicant starting with him being inadequately counseled on how the timing and change of his military status to participate in the ROTC program would affect his bonus eligibility. Next, the FLARNG is responsible for creating a significant financial obligation by not following proper procedures to ensure the applicant complied with the bonus contract before processing the first payment. Finally, the FLARNG’s several years delayed notification of bonus recoupment blindsided the applicant, created urgency paying back the debt in full, to avoid forfeiting a myriad of drill weekend pay until the debt was exhausted or even the possibility of a favorable ABCMR decision. This opinion is in agreement with the applicant, that his bonus recoupment was unjust and should be reversed. The opinion coordinated upon review of feedback from the FLARNG and the Army National Guard Incentives Branch. 6. The applicant responded to the advisory opinion and indicated he reviewed the advisory board opinion and agrees with the facts and analysis. He hopes the Board supports the approval recommendation. From his perspective, he was not aware of the bonus process and some of the details therein as a brand new soldier. Now, after 15 years in the Florida Guard, he is more aware of administrative processes in the military and used this experience to counsel his Soldiers so they would not experience the same challenge. 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, the Board concurred with the advising official finding the applicant is still serving as a Traditional Guardsman in the rank/pay grade of CPT/O3. He currently serves as his Battalion’s S6/Signal Staff Officer. A refund of his recoupment payment in the amount of $10,000 would reverse a financial burden imposed upon the applicant who has continued to serve at a greater responsibility and beyond the date he agreed to initially serve as stated in the bonus contract. Furthermore, an injustice did occur at no fault of the applicant starting with him being inadequately counseled on how the timing and change of his military status to participate in the ROTC program would affect his bonus eligibility. 2. The Board determined based on the preponderance of evidence and the NGB advisory opine, reversal of the National Guard Bureau’s (NGB) denial of his exception to policy request to retain the Non-Prior Service Enlistment Bonus (NPSEB) in the Florida Army National Guard (FLARNG) is sufficient. Therefore, the Board granted 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 records of the individual concerned be corrected to show the applicant is authorized a refund of his recoupment payment in the amount of $10,000 of his 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, 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 600-7, Personnel – General, Selected Reserve Incentive Programs, governs incentive policies, procedures, and eligibility criteria for persons entering into an incentive agreement at the time of enlistment, affiliation, reenlistment, extension, and commission or appointment into the ARNG. Termination without recoupment: The conditions under which termination without recoupment of incentives is warranted are prescribed here and the applicable program chapters and sections of this regulation. The effective date of the termination will be the effective date of the action. Payments due prior to the effective date will be paid to the Soldier. Payments due after the effective date of the action will be canceled and will not be paid to the Soldier. a. Separation from the ARNG or transfer from the designated bonus position because of death, injury, illness, or other impairment that is not the result of misconduct by the Soldier. Termination effective date is the date of discharge. b. Fails to become DMOSQ in contracted incentive from date of enlistment per SRIP policy when no payments are authorized prior to DMOS/DAOC qualification. Termination effective date will be the contract start date. If time to complete training was extended due to no fault of the Soldier, it will be evaluated on a case by case basis per chapter 5. c. Accepts an AGR position and has served the required amount of time per current SRIP policy. The termination effective date is one day prior to the start date of the AGR tour. d. Accepts position as a Mil Tech (includes temporary technician/indefinite technician over 179 consecutive days) where membership is a condition of employment and has served the required amount of time per current SRIP policy. The termination effective date is the day prior to entry as a permanent technician or day 180 for temporary/indefinite technicians. e. Serves at least one day of their enlisted incentive contract past the initial contract payment date and becomes a part of the SMP of an authorized commissioning program or accepts an immediate commission as an officer or warrant officer. The termination effective date is the date the Soldier signs the SMP contract or the enlisted discharge date. f. Serves at least one day of their enlisted incentive contract past the initial contract payment date and accepts a ROTC scholarship. Termination effective date is the college class start date as noted on the DA Form 597- 3. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011857 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1