IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230003554 APPLICANT REQUESTS: * amendment of Orders Number 018-935 to read Command Directed Instead of Individual's Request * repayment of recouped bonus payment * payment of second bonus payment APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 600-7-6-R-E (Annex X to DD Form 4 - Prior Service Enlistment Bonus (PSEB) Addendum), 27 January 2009 * Orders Number 175-904, 24 June 2010 * Orders Number 018-935, 18 January 2011 * DA Form 1059 (Service School Academic Evaluation Report), 17 May 2011 * Applicant's statement, 13 March 2012 * NGB Memorandum - Subject: Request for Exception to Policy (ETP) for PSEB [Applicant], 23 April 2012 FACTS: 1. The applicant states: a. In 2009, he enlisted into A Company, 1st Battalion, 181st Infantry Regiment as an 11B (Infantryman) for a bonus. He was not sure he wanted to stay in that unit for the entire enlistment. He was assured by his recruiter and her station chief that he was not obligated to remain in the unit for more than one year. He reviewed his bonus addendum and did not see any prohibition to changing to another unit during the enlistment. Due to issues with the unit and school funds that were beyond his control he was not sent to Military Occupational Specialty (MOS) reclassification until May of 2011. He was command directed to start drilling with a combat engineer unit. The move was not requested by him as indicated on Orders Number 018-935. b. He requested this be changed several times, but nothing was done about it. In April of 2011 "C Company, 81st Brigade Special Troops Battalion" offered him the option to reclass to MOS 12B (Combat Engineer). He was told that doing so would allow him to compete for staff sergeant (SSG)/E-6. He called his recruiter and asked her if doing so would violate his bonus. She assured him it would not be an issue. c. In 2012, when he requested the second bonus payment, he was told that he had violated his bonus agreement. He reviewed his bonus addendum and did not see what he had done wrong. At no time when he was told to switch units or when he was offered MOS 12B reclassification was he counseled that he was violating any part of his contract. Due to him changing his MOS the second payment was not paid, and part of the original payment was recouped. He asked on numerous occasions to have the transfer order amended to Command Directed and he was rebuffed each time. d. He is requesting to change Orders Number 018-935 from Individual Request (IL) to Command Directed. Pay the second bonus payment and repay the recouped amount. He complained many times about the order being wrong and his bonus being recouped. He was told it was just the way it is, and it was just too bad. He did not learn about the records review board or any other part of this process until he attended Warrant Officer Candidate School (WOCS) and had a WOCS classmate MOS 420A (Human Resources Technician) point him in the right direction to fix the issue. 2. A review of the applicant's military record shows the following: a. Having had prior enlisted service in the U.S. Army Reserve (USAR) and Army National Guard (ARNG) in MOS 88N (Traffic Management Coordinator) and MOS 75H (Personnel Service Specialist), he enlisted in the Washington ARNG (WAARNG) for 6 years on 27 January 2009. In connection with his enlistment, NGB Form 600-7-6-R-E shows, in pertinent part: (1) He was not qualified in the primary MOS for which he was enlisting but had enlisted into a Modified Table of Organization and Equipment (MTOE) unit in critical skill "11B" and agreed to attend formal training and become qualified in his contracted MOS within 24 months of the date of enlistment. He understood that his initial bonus payment would not be processed until he became Duty MOS qualified (DMOSQ). (2) He must be enlisting DMOSQ in a Critical Unit Identification Code (UIC) or DMOSQ or Non DMOSQ in an approved critical skill under the policy in effect at the time of his enlistment in an MTOE unit. (3) The applicant would receive a 6-Year PSEB in a non-critical MTOE unit and or critical skill. He would receive a total bonus payment in the amount of $15,000.00 less taxes for the 6-year enlistment. He certified that he was enlisting in a valid, vacant position and he was not MOS qualified for the position as of the date of this enlistment and must enlist into a state top thirty critical skill and become MOS qualified within 24 months. b. On 22 May 2010, DA Form 1059 shows he achieved course standards and completed the 11B Infantry Transition Course. c. On 18 January 2011, the WAARNG, Office of the Adjutant General published Orders Number 018-935, which released the applicant from Company A, 1st Battalion, 161st Infantry Regiment, Kent, WA, and transferred him to Company C (Engineer), 81st Brigade Troops Battalion, Bellingham, WA, effective 18 January 2011. The additional instructions show "SRIP [Selected Reserve Incentive Program]: Yes, Termination: No". The Orders also show, in pertinent part: * "Assign/loss reason: Individual's Request (IL)" * "MOS/AOC: 12B2OD3" * "Date of assignment/loss reason: 18 January 2011" d. On 17 May 2011, DA Form 1059 shows he achieved course standards and completed the 12B Combat Engineers Course. e. On 23 April 2012, the NGB, Deputy G-1 denied the applicant's ETP request to retain the $15,000.00 PSEB offered at the time of enlistment on 27 January 2009 and directed the State Incentive Manager to terminate the incentive with recoupment effective the date of transfer to the new MOS. The NGB memorandum also states: (1) In accordance with ARNG SRIP Guidance 07-06 (effective 10 August 2007- 28 February 2009), eligible applicants were offered the PSEB. (2) The applicant enlisted into the WAARNG on 27 January 2009 for the PSEB in Critical Skill MOS 11B. He became MOS 11B qualified and later requested transfer to MOS 12B for "further promotional opportunities". Although becoming MOS 12B qualified on 17 May 2011, he voided the incentive contractual obligation by not remaining in the 11B MOS and not following normal career progression as authorized by Army Regulation (AR) 135-7 (ARNG and Army Reserve Incentive Programs), paragraph 2-1.4 Termination b(1) in order to retain the incentive. The documentation presented by the WAARNG supports the move as being voluntarily requested, therefore the incentive is to be terminated. (3) The applicant may file a claim with the Army Board for Correction of Military Records (ABCMR) in accordance with AR 15-185 (ABCMR), if there is belief that an error or injustice still exists. f. The applicant remains in the ARNG as a Reserve warrant officer. 3. The applicant provides: a. Orders Number 175-904 dated 24 June 2010, which awarded the applicant primary MOS 11B20 and secondary MOS 88N20, effective 23 May 2010. Additional instructions show "Individual is MOS qualified" and "DMOS: 11B20". b. His statement dated 13 March 2012 which states: (1) When he rejoined the ARNG he was not sure he wanted to stay in the same MOS for his entire enlistment. He was assured by his recruiter and her station chief that he was only obligated to stay in an 11B slot for 1 year to maintain his bonus eligibility. After 2 years with A Company, 1st Battalion, 161st Infantry Regiment, as an 11B he was told to drill with C Company, 81st Brigade Special Troops Battalion, an engineer unit so that they would have enough Noncommissioned Officers (NCOs) to complete their training. A Company was way overstrength and was slating NCOs as fire team members. There was little opportunity for leadership and no opportunity for promotion. (2) In C Company there were many opportunities for leadership. He was slated as a squad leader even though he was an E-5. After he had been training with C Company for 6 months, he was informed that he had been transferred out of A Company and into C Company without his consent. He was asked if he would reclass to 12B. If he did this, he would be eligible for promotion to E-6. He called the recruiting station and asked if this reclass would affect his bonus eligibility. He was assured that he would remain eligible. He accepted the offer to reclass. C Company offered opportunities for professional development, leadership and promotion that were not available in A Company. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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, G-1 advisory opinion, the Board noted the NGB, G-1 opine and found the applicant was assigned to the 1-161 IN for a period of 6 months, there is insufficient evidence to support the applicant was command directed for reassignment to Company C (Engineer), 81st Brigade Troops Battalion. The Board determined the applicant did not meet the incentive contractual obligation by not remaining in the 11B MOS and not following normal career progression as authorized by Army Regulation (AR) 135-7 (ARNG and Army Reserve Incentive Programs). Based on the preponderance of evidence, the Board denied relief to amend the applicant’s orders to read Command Directed Instead of Individual's Request, repayment of recouped bonus payment or payment of second bonus payment 2. This board is not an investigative body. The Board determined despite the absence of the applicant’s service records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions that his request for reassignment was not voluntary. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. AR 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 2. Title 31, United States Code (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, USC, 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. 3. ARNG SRlP Guidance for Fiscal Year 2007, 10 August 2007 - 31 March 2008 (Policy Number 07-06) establishes policy to administer ARNG incentive for the period effective 10 August 2007 through 31 March 2008 unless otherwise noted, superseded or suspended. Commanders at all levels are required to ensure that this policy is managed effectively in order to preclude any occurrence of fraud, abuse, or mismanagement. Paragraph 5 (Termination with Recoupment) states, 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. The following termination reasons are the most common but may not be all inclusive. The appropriate chapter of National Guard Regulation (NGR) 600-7 (SRIP) contains the complete termination rules for each respective incentive. If a member moves to a non-bonus skill or unit, unless the move is due to normal career progression (promotion) or is required by the needs of the ARNG, the member's incentive will be terminated with recoupment. 4. NGR 600-7 (SRIP) governs policies and procedures for the administration of the ARNG SRIP programs. a. Paragraph 1-20 (Incentive payments) states, the ARNG requires the unit commander or other designated individuals to initiate eligibility reports for payment immediately upon notice of the Soldier's entitlement and submit them to the State Incentive Manager (IM) for processing through the incentive management system for payment. The State IM, in accordance with regulatory and SRIP policy guidance, will verify the following: (1) Continued eligibility for payment and correct due date. (2) Suspension reason and correct suspension date. (3) Termination reason and correct termination date. Payment of incentives is not immediate under these programs. Payment processing and verification of eligibility is required before payment is made. b. Paragraph 1-25a (Termination with recoupment of incentives) states, the conditions under which termination with recoupment of incentives is warranted are prescribed in this paragraph and also the applicable program chapters and sections of this regulation. With the exceptions of subparagraphs (1) and (2) below, recoupment conditions in this paragraph cover all incentives. c. Paragraph 1-25b provides that termination with recoupment is defined as termination of the incentive when 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 voluntarily moves to a non-bonus unit or MOS unless assigned as a 09S (OCS Candidate), 09R (SMP Cadet), or as otherwise stated in this regulation. Termination is effective the date of transfer into the new MOS. See paragraph 1-19, Personnel movement between ARNG units. d. Section II, Prior Service Enlistment Bonus (PSEB), paragraph 2-8 (Processing) states, applicant must have an incentive written agreement with a valid bonus control number on the addenda. Enlistments for the PSEB will be executed within current regulatory guidance and any additional requirements directed by Director, ARNG or the current Fiscal Year SRIP policy. 5. Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedures), currently in effect, requires each recipient of an incentive to sign a written agreement stating 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. The agreement must clearly specify the terms of the Reserve Service commitment that authorizes the payment of the incentive to the member. 6. AR 600-8-105 (Military Orders) states only the organization that published the original order may amend, rescind, or revoke the order. Commanders may revoke award orders if issued by another headquarters only when authorized under AR 600 – 8 – 22. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003554 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1