AR20130012966

BOARD DATE: 6 May 2014

DOCKET NUMBER: AR20130012966

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests cancellation of recoupment of a Selected Reserve Incentive Program (SRIP) Prior Service Enlistment Bonus (PSEB).

2. The applicant states he contracted for a PSEB in connection with his enlistment in the Wyoming Army National Guard (WYARNG) in 2008. The contract specified that he had 24 months to become duty military occupational specialty qualified (DMOSQ) as a requirement for processing any bonus payments. Although he was not DMOSQ, the WYARNG erroneously processed him for a $7,500 payment which he received. He was subsequently discharged from the ARNG for failing to meet the military education qualification requirement. He states he failed to become DMOSQ due to the lack of training seat availability which also was due to no fault on his part. He is currently a full-time student and establishing this debt will create a significant financial hardship for him due to the fact that he only made $15,000 last year before taxes. He requests that he be granted relief from recoupment due to the errors made that were no fault of his.

3. The applicant provides no documentary evidence.

CONSIDERATION OF EVIDENCE:

1. On 21 November 2008, the applicant enlisted in the WYARNG for a period of 6 years.

2. In conjunction with his enlistment, he executed a National Guard Bureau (NGB) Form 600-7-6-R-E (Annex X to DD Form 4 – PSEB Addendum). By signing the form, he verified he was eligible for a PSEB in the amount of $15,000, less taxes, payable in two 50 percent installments.

a. He acknowledged:

* he was enlisting into A Battery, 2nd Battalion, 300th Field Artillery to serve at least 6 years in a paid drill status
* he was not qualified for the primary MOS for which he was enlisting
* he was enlisting into a unit in MOS 92Y (Supply Specialist), that was designated as a critical skill MOS
* he would be terminated from bonus eligibility without recoupment if he did not become qualified in or awarded the primary MOS as required for his position within 24 months of enlistment if retraining was required

b. He further acknowledged he understood 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 his own misconduct.

c. He also acknowledged with his initials in Section II, paragraph 2b of the PSEB Addendum that he understood his initial bonus payment would not be processed until he became DMOSQ.

3. On 30 November 2009, he failed a record Army Physical Fitness Test (APFT).

4. A DD Form 214 (Certificate of Release or Discharge from Active Duty) contained in his records shows he served on active duty in support of Operation Iraqi Freedom from 15 April 2009 through 3 May 2010.

5. DA Forms 268 (Report to Suspend Favorable Actions (FLAG)) contained in his record show flags were initiated on the applicant effective 19 September 2010 for APFT and weight control program failure.

6. He was flagged again for weight control program failure effective 16 April 2011.

7. On 10 May 2012, he stated in an affidavit that he did not feel he had the time to put forth the needed work to meet the Army body composition standards and as a result would not attend 92Y MOS training. As a result, he was requesting a discharge from the WYARNG under honorable conditions under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 9.

8. On 3 July 2012, his commander recommended the applicant’s separation from the WYARNG. His commander stated he had given the applicant every opportunity to improve his height/weight in order to attend an MOSQ school, but he continued to fail.

9. On 15 August 2012, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 135-178, chapter 9 for unsatisfactory performance. He informed the applicant of his rights and informed him that he was recommending separation because the applicant had failed to become MOS qualified within the 24-month time frame. He indicated he was recommending the applicant be given a general, under honorable conditions discharge. The applicant acknowledged receipt of the notification.

10. A DA Form 4187 (Personnel Action) shows effective 20 September 2012 his duty status was changed to civilian because he was discharged due to unsatisfactory performance (non-MOSQ) in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35, and Army Regulation 135-178, chapter 9.

11. On 20 September 2012, the separation authority waived further rehabilitative requirements indicating further duty was determined to be inappropriate because the applicant was obviously resisting all rehabilitative attempts. He approved the applicant’s discharge under honorable conditions.

12. The State of Wyoming Adjutant General’s Office Orders 270-017, dated 26September 2012, show he was discharged effective 20 September 2012. The orders show he was a SRIP participant and that his SRIP (enlisted cash bonus) was to be terminated without recoupment with a termination date of 20September 2012.

13. The WYARNG Adjutant General endorsed the applicant’s request for relief from recoupment. He stated he believed that the applicant should not be penalized for the WYARNG Education Office’s lack of due diligence. He stated that although the applicant was not eligible to have the first bonus payment processed until he became DMOSQ the WYARNG processed the first payment upon his enlistment in the WYARNG and the applicant received a payment of $7,500. Effective 20 September 2012 the applicant was discharged for failure to meet military education qualifications/requirements. He stated the applicant failed to become DMOSQ due to the lack of training seat availability which also was due to no fault of the applicant. He requested that the applicant be granted relief from recoupment due to the errors made at no fault of his own.

14. On 6 May 2013, the NGB denied his request for an exception to policy. NGB stated the State Incentive Manager would terminate the applicant’s bonus with recoupment. NGB stated that the applicant was discharged or separated prior to completion of his service obligation which violated ARNG SRIP 07-06 (10 August 2007 to 28 February 2009). He did not complete MOS training within 24months which violated ARNG SRIP 07-06. The applicant’s contract/agreement detailed, in pertinent part, a contracted bonus addendum/agreement amount of $15,000 with a contracted MOS of 92Y.

15. During the processing of this case, an advisory opinion was obtained from NGB, Incentives and Budget Branch, Enlisted Accessions Division. The advisory official recommended the applicant’s request be denied. The NGB official stated that a review of the applicant’s case shows he was offered and contracted for the PSEB for a 6-year enlistment in the amount of $15,000. He acknowledged he was not DMOSQ, had to be retrained/could not be processed for initial payment until DMOSQ per his PSEB addendum, and had 24 months to become DMOSQ. The applicant erroneously received an initial payment of $7,500 upon enlistment. Though the applicant deployed to Iraq from 15 April 2009 to 3 May 2010 he had 2 years from his deployment ending date to his ARNG discharge date to attend school. There is nothing in his records to substantiate a reason why he did not attend MOS school for 92Y. The applicant was discharged on 12 September 2012 for failure to meet military education/qualification requirements per his enlistment contract.

16. The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not submit a response.

17. Army Regulation 135-178, chapter 9, provides for discharging a Soldier when it is determined under the guidance set forth in chapter 2, section I, the Soldier is unqualified for further military service by reason of unsatisfactory performance.

18. ARNG SRIP Policy Number 07-06, effective 10 August 2007 to 28 February 2009, established policy to administer ARNG incentives during the effective period.

a. The policy provided for termination of an incentive with recoupment if entitlement to the incentive was terminated for any reason before the fulfillment of the service described in the member’s written agreement. Unless granted relief, the member was required to refund any unearned amount to the Government if the incentive was terminated for any of the following reasons:

(1) Fails to participate satisfactorily in required training during the entire period of service agreed to in accordance with the written agreement unless the failure to participate satisfactorily was due to reasons beyond control of the member (i.e., death, injury, illness, or other impairment).

(2) Separates from the ARNG for any reason (including enlistment or voluntary order to active duty in the active forces). Exceptions to recoupment (termination without recoupment are listed in paragraph 6 of this policy memorandum.)

b. The policy provided for a $15,000 PSEB for enlistees who enlisted for a critical skill MOS.

c. The policy further provided that Soldiers who elected to enlist non-MOSQ into one of the State’s top 30 MOS’s must become MOSQ for their position within 24 months of enlistment or their bonus would be terminated. Soldiers must have been DMOSQ prior to receiving payments.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contentions were carefully considered. However, the available evidence does not support cancellation of recoupment of his PSEB.

2. He was erroneously paid half ($7,500 minus taxes) of his PSEB upon his enlistment.

3. The basic issue in this case is the applicant’s failure to serve in an active status in the WYARNG for the contractual period of 6 years. On 21 November 2008, he signed a PSEB contract that clearly stated he would be terminated from bonus eligibility if he failed to become DMOSQ within 24 months of his enlistment and terminated with recoupment if he was separated from the ARNG for any reason unless due to death, injury, illness, or other impairment not the result of own misconduct.

4. Evidence shows the applicant failed to complete the required MOS training and was never awarded the MOS for which he contracted. Evidence further shows he was flagged for failing to pass the APFT and failing to maintain Army height and weight standards. It appears his being flagged was the reason for his not attending the required schooling. He subsequently signed an affidavit stating he did not feel he could attain the Army height and weight standards and requested discharge from the ARNG.

5. He was separated from the ARNG for a reason requiring termination and recoupment of his bonus. The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

6. The applicant failed to fulfill the terms of his PSEB contract. As a result, he is subject to termination and recoupment of the bonus monies he was paid in accordance with the terms clearly stated in his contract. There is no evidence of inequity or injustice in the decision to recoup the PSEB he did not earn.

7. In view of the foregoing, there is no basis for granting the applicant’s requested relief.

BOARD VOTE:

________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

__________X_______________
CHAIRPERSON

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.

ABCMR Record of Proceedings (cont) AR20130012966

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ABCMR Record of Proceedings (cont) AR20130012966

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