IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220004850 APPLICANT REQUESTS: * correction of his records to show he was awarded the second and final 50- percent installment ($7,500.00) of his Prior Service Enlistment Bonus (PSEB) in the Army National Guard * appearance before the Board via telephone/video APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * Congressional privacy release form * Congressional correspondence * National Guard Bureau (NGB) Form 600-7-6-R-E (Annex X to DD Form 4 – PSEB Addendum – Army National Guard (ARNG) of the United States), 20 July 2007 * Orders Number 216-1045, 4 August 2010 * NGB Form 22 (Report of Separation and Record of Service), 15 August 2010 * NGB Form 55 (Honorable Discharge Certificate), 15 August 2010 * NGB Form 23B (ARNG Retirement Points History Statement), 24 August 2010 * DD Form 139 (Pay Adjustment Authorization), 22 September 2021 * Mississippi Army National Guard (MSARNG), The Adjutant General's Office (TAGO) Memorandum, 10 November 2021 * DD Forms 827 (Application for Arrears in Pay), 14 December 2021 * Direct Deposit Sign-Up Form, 19 January 2022 * Closed Year Payment Checklist, 1 February 2022 * Ask Military Pay – Online Customer Service Ticket, 4 January 2022 * Email communication between applicant and Education Services Officer, January 2022 * Guard Incentive Management System (GIMS) screenshot of applicant's PSEB * Applicant's Driver License * BankPlus Card FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 the MSARNG has validated and processed incentive, and the "NGB authorization per the Barring Act to process this closed year payment." Please see attached documentation. He is legally due this incentive per contract. He is supposed to be receiving a bonus he never received when he was in the MSARNG. Major (MAJ) contacted him about it in December 2020. 3. A review of the applicant's military records show the following: a. Having had prior enlisted service in the U.S. Navy, the applicant’s DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant enlisted in the MSARNG for a period of 6 years on 20 July 2007. In connection with his enlistment, he completed and signed NGB Form 600-7-6-R-E that shows: (1) He was entitled to a $15,000.00 bonus for a 6-year enlistment for training in Military Occupational Specialty (MOS) 19D (Cavalry Scout). The first 50-percent installment would be processed for payment upon enlistment if he was MOS qualified for the position for which he was enlisting. If he was not MOS qualified for the position for which he was enlisting, his first installment of 50-percent would be processed upon successful completion of MOS training. The second and final 50-percent installment would be processed for payment on the 36-month anniversary of the date of enlistment. (2) Section VI (Termination with Recoupment), paragraph 9 states, in pertinent part, the applicant would be terminated from bonus eligibility with recoupment, if he separated from the ARNG for any reason unless due to death, injury, illness or other impairment not the result of own misconduct. b. On 3 October 2008, Orders Number 277-855 issued by the Adjutant Generals Office, MSARNG awarded the applicant primary MOS 19D, effective 27 September 2008. c. Orders Number 9023022 issued by the Military Entrance Processing Station, Jackson, MS, ordered the applicant to initial active duty for training for the Warrior Transition Course, with a report date of 28 January 2009. d. His record contain a DA Form 4187 (Personnel Action) dated 20 March 2009 that shows his excess code was changed to read "999M" and reason "Medical MOS Medical Retention Board." e. Orders Number 216-1045 issued by the MSARNG honorably discharged the applicant from the ARNG, effective 15 August 2010. The orders indicate he had no Selected Reserve Incentive Program and the authority for his discharge was National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36u (failure to obtain required physical per Army Regulation (AR) 40-501 (Standards of Medical Fitness)). f. On 15 August 2010, he was discharged from the MSARNG by reason of "failure to obtain required physical per AR 40-501." NGB Form 22 shows he completed 3 years and 26 days net service this period. 4. The applicant provides: a. Congressional privacy release form and correspondence showing the applicant requested assistance with submitting his application to receive his PSEB. b. NGB Form 55 dated 15 August 2010, showing he was honorably discharged from the ARNG. c. NGB Form 23B dated 24 August 2010, showing total points for active duty, career, and creditable service for retired pay. d. DD Form 139 dated 22 September 2021, that shows a termination of recoupment was submitted. e. Adjutant General MSARNG Memorandum dated 10 November 2021, notifying him of incentive eligibility termination due final payment. f. DD Forms 827 dated 14 December 2021, requesting to receive his PSEB. He also provided a Direct Deposit Sign-up Form. g. Closed Year Payment Checklist dated 1 February 2022, that provides required documentation to be submitted for his PSEB. h. Ask Military Pay – Online Customer Service Ticket dated 4 January 2022, wherein, he is inquiring about his PSEB and how he would be receiving it. i. Email communication, in January 2022, between the applicant, MSARNG Education Services Officer, and DFAS, wherein, the status and processing his PSEB was discussed. j. GIMS screenshot of the applicant's PSEB showing the status, applicant's driver license, and BankPlus business card. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant enlisted in the MSARNG for a 6-year term in July 2007. He was promised a $15,000 bonus for a 6-year enlistment for training in MOS 19D (Cavalry Scout), the first 50% upon enlistment or upon successful completion of MOS training. The second and final 50% would be processed for payment on the 36- month anniversary of the date of enlistment. He was discharged on 15 August 2010, by reason of "failure to obtain required physical per AR 40-501." His NGB Form 22 shows he completed 3 years and 26 days of ARNG service this period. Because he did not fulfill his enlistment commitment, the MSARNG terminated his incentive and recouped any monies he was paid. His incentive agreement stipulated that he would be terminated from bonus eligibility with recoupment, if he separated from the ARNG for any reason unless due to death, injury, illness or other impairment not the result of own misconduct. The Board found no error or injustice. ? 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 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. Army Regulation (AR) 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. NGR 600-7 (Selected Reserve Incentive Programs (SRIP)) governs policies and procedures for the administration of the ARNG SRIP programs. a. Paragraph 1-24 (Termination of incentives) provides that, (1) Incentive eligibility and entitlement will stop when any of the termination reasons listed in paragraphs 1-25 and 1-26 or the applicable program chapters and sections apply. The Soldier will not be eligible to receive any further incentive payments, except for Service performed before the termination date. Termination of an incentive will not affect a Soldier's responsibility to serve their current statutory or contractual Service commitment. (2) The unit commander or authorized unit representative will initiate termination procedures and inform the State Incentive Manager (IM) when a Soldier is not in compliance with the incentive terms and conditions. b. Paragraph 1-25 (Termination with recoupment of incentives) states, in pertinent part, termination with recoupment is defined as termination of the incentive with Soldier is entitled to a prorated incentive amount based on the number of months served satisfactorily prior to the incentive termination date. The Soldier may be required to pay funds back to the government or the Soldier may be entitled to a payment. Termination with recoupment will occur, if a Soldier, in pertinent part: (1) Fails to maintain medical and dental readiness during the entire period of the service obligation, unless the failure was due to reasons outside of the Soldier's control (e.g., death, injury, or illness). The Commander will notify the State IM when a Soldier is not in compliance with command-directed orders to rectify their medical status (e.g.: dental cleaning, dental work, periodic health assessment, etc.). The termination effective date is the date the Commander requests termination. (2) Discharged from the ARNG for any reason unless otherwise noted in this regulation or in the current ARNG SRIP policy. Termination effective date is the ARNG discharge date. c. Collection procedures for the recoupment of incentive payments will be per DOD FMR 7000.14-R, volume 7A, chapter 2. d. Section IV Continued Receipt, Suspension, Reinstatement, and Termination of Enlisted Incentives (NPSEB, PSEB, EAB, REB and SLRP), Paragraph 2-35 (Termination of incentives) provides that incentive eligibility will be terminated when any of the termination reasons listed in paragraph 1-24 through 1-26 apply and that member will not be eligible to receive any further incentive payments, except for Service performed before the termination date. Once declared ineligible, termination of an incentive will not affect a Soldier's responsibility to serve their current statutory or contractual Service commitment. 4. Title 31, USC, section 3702, also known as the Barring Act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 5. Title 37, USC, Section 331 (General bonus authority for enlisted members) provides that, the Secretary concerned may pay a bonus under this section to a person, including a member of the armed forces, who (1) enlists in an armed force; (2) enlists in or affiliates with a reserve component of an armed force; (3) reenlists, voluntarily extends an enlistment, or otherwise agrees to serve for a specified period in a designated career field, skill, or unit of an armed force. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004850 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1