AR20160000088

IN THE CASE OF:

BOARD DATE: 24 March 2016

DOCKET NUMBER: AR20160000088

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, in effect, an exception to policy (ETP) for cancellation of recoupment action and retention of a Non-Prior Service Enlistment Bonus (NPSEB) in the Army National Guard (ARNG).

2. The applicant states:

a. The denial of his ETP request was made based on the statement that he “voluntarily” transferred out of the contracted military occupational specialty (MOS) of 74D (Chemical, Biological, Radiological, and Nuclear Specialist), which violated Department of Defense Instruction (DoDI) 1205.21, paragraph6.6.2.

b. He accepted an inter-state transfer (IST) from the Ohio ARNG (OHARNG) to the Florida ARNG (FLARNG) under the impression that it was a 74D to a 74D slot and he wasn’t going to lose his bonus. When Order Number105-978, dated 15April 2009 (transfer order), was published he was erroneously assigned to an 88M (Motor Transport Operator) position. The order contained multiple errors. The position stated “Decontamination Specialist” which is a 74D position, but the paragraph and line below showed a different MOS. The order also stated he was qualified for this MOS, which he was not.

c. When he arrived at the unit they attempted to rectify the issue and transferred him to a 74D position by Order Number 149-009, dated 29May 2009, so that he wouldnt lose his bonus. He deployed with this unit. Upon his

return from deployment and 1 and 1/2 year after his IST his Readiness Noncommissioned Officer advised him the 74D position belonged to another Soldier, this Soldier had deployed and returned to the 74D slot, and he [applicant] couldn’t stay excess in the position.

d. His command didn’t offer him any other 74D position and transferred him to an 88Mposition. His command didn’t counsel or advise him that he would be forfeiting his bonus because of this transfer. This transfer was not voluntary. When he transferred into this unit it was their oversight that the position was in excess. He had no way of knowing. He should not be penalized for this. He made every attempt to remain a 74D and not violate his bonus contract. He never elected to change his MOS for his benefit.

3. The applicant provides copies of the following:

* Orders Number 105-978, 149-009, and 273-011
* DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States)
* National Guard Bureau (NGB) 600-7-1-R-E (Annex E to DD Form 4, NPSEB Addendum)
* DA Form 2823 (Sworn Statement)
* ETP memorandum
* Request for ETP for NPSEB memorandum

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations.

2. The applicant enlisted in the New Jersey ARNG (NJARNG) on 15March 2007. His records contain and he provided copies of an AnnexE that he executed and signed on 15 March 2007. The addendum states in:

a. Section II (Eligibility):

(1) “I am enlisting into the following unit: 50thChemical Company to serve at least 6years in a paid drill status.” “I am enlisting for 74D which is designated as an NGB or State Critical Skill MOS.”

(2) “I will receive a total bonus of $20,000.00 for the enlistment bonus option above, less taxes. I will receive my first bonus payment of 50% of the total authorized amount entered above, less taxes, when I complete IADT [initial active duty for training] and I am awarded the MOS for which I enlisted. The second and final payment of 50% will be paid on the 36th-month anniversary of my date of enlistment.”

(3) “I understand that I will not receive a payment until all requirements have been met and my entitlement has been verified and certified by the proper authority.”

b. Section V (Termination):

(1) “I understand I will be terminated from bonus eligibility with recoupment if I voluntarily transfer into a non-critical skill MOS or transfer from the unit for which the bonus was awarded upon enlistment. Recoupment will be calculated from the date of transfer.”

(2) “Do not become qualified in or awarded as primary the MOS required for my position within 36-months of a transfer due to unit inactivation, reorganization, or relocation. Termination will be effective the date of transfer.”

(3) “I have read Section V and understand the contents thereof.”

c. Section VII (Statement of Understanding) “I have read this entire addendum. I understand all of the above statements concerning my enlistment bonus. I understand that this addendum will be void if I do not meet all requirements. No other promises have been made to me in connection with this enlistment bonus addendum.”

d. Section IX (Certification by Service Representative) contains the typed/printed name/rank of the Enlisting Official, his signature, and date signed.

3. Orders Number 297-745, issued by Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, MO on 24October 2007, awarded him MOS74D.

4. He was transferred to the OHARNG sometime in January 2008. His record is void of the particular transfer orders.

5. An NGB Form 22-5 (Addendum to DD Form 4 Approval and Acceptance by Service Representative for IST in the ARNG), dated 1 April 2009, shows he acknowledged his acceptance of a voluntary IST from the OHARNG to the FLARNG not later than 24April 2009. The form shows his primary MOS was 74D and the transfer was to a duty MOS of 88M.

6. His records also contain and he provided copies of the following:

a. Orders Number 105-978, issued by the OHARNG on 15 April 2009, transferring him to the FLARNG, 1218th Transportation Company (TC), by reason of an IST, effective 1 April 2009. The orders show his MOS as 88M.

b. Orders Number 149-009, issued by the FLARNG on 23May 2009, reassigning him to a 74D position effective 29 May 2009.

c. Orders Number 273-011, issued by the FLARNG on 30September 2010, reassigning him to an 88M position effective the same date.

7. Orders 299-116, issued by the FLARNG on 25 October 2012, withdrew MOS88M and awarded him MOS 88H effective 23 October 2012.

8. He records further contain and he also provided copies of following:

a. A DA Form 2823, dated 13 May 2015, in which he stated:

(1) After his initial enlistment as a 74D into the NJARNG in March 2007, he transferred to the OHARNG on or about late January2008. In April 2009, after 1 year in the OHARNG he transferred to the FLARNG, still as a 74D, and he was assigned to the 1218thTC. Shortly after, the 1218th TC was mobilized in support of Operation Iraqi Freedman from July 2009 to July 2010.

(2) While deployed as a 74D he received the second-half payment of his NPSEB. Upon returning from the deployment he was notified by the unit administrator that the 74D hard slot was being held by another Soldier and he had to change his MOS to stay within the unit.

(3) In 2011, he was moved from the 74D slot to an 88M slot and soon after he was sent to reclassification. He was reclassified to fill the needs of the unit and the FLARNG. He requested termination of any recoupment action on his initial enlistment bonus.
b. An ETP memorandum, dated 18 May 2015, in which the Director, Military Personnel, FLARNG, stated the applicant contracted with the NJARNG on 16March 2007 for a 6-year $20,000.00 NPSEB. He was paid his first $10,000.00 payment on 21December 2007 and his second $10,000.00 payment on 28 March 2010. A review of the policy supported the incentive being offered at the time of contract. However, the applicant voluntarily transferred out of his contracted MOS. He fulfilled his obligations to the ARNG as of the date of this request. He was requesting approval of the applicant’s ETP to retain his NPSEB. However, the FLARNG Deputy Chief of Staff for Personnel did not concur with the requested ETP.

c. A request for ETP for NPSEB memorandum, dated 9November 2015, in which the DeputyG1, NGB, advised the FLARNG of denial of the applicant’s ETP to retain the $20,000.00 NPSEB because the applicant voluntarily transferred out of the contracted MOS which violated the DoDI 1205.21, paragraph 6.6.2. The NGB official stated the applicant’s contract/agreement showed he enlisted on 16March 2007 for a $20,000.00 NPSEB in MOS 74D. The applicant’s current MOS was 88H (Cargo Specialist). The discrepancy violated a DoDI and the ARNG did not have the authority to approve the request. The State Incentive Manage would terminate the incentive with recoupment effective the date of transfer.

9. His records further show he is currently serving in the FLARNG in the rank of staff sergeant/E-6.

10. ARNG Selected Reserve Incentive Program Policy Number 07-04, effective 1January to 15 June 2007, established policy to administer ARNG incentives during the effective period. The policy provided for a $20,000.00 NPSEB for enlistees who enlisted for a critical skill MOS. The policy also 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 a prorated amount to the Government, if the incentive was terminated for moves to a non-bonus skill or unit, unless the move was required by the ARNG.

11. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. Applications must be based on injustice, hardship, or both. This includes debts caused by errors in pay to or on behalf of a Soldier. Paragraph 1-12 of the same regulation contains guidance on determining injustice or hardship and states that the following factors will be considered: the Army’s policy in the area of indebtedness to the U.S. Army; the Soldier’s awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience are taken into consideration; the Soldier’s monthly income and expenses; the Soldier’s contribution to the indebtedness to the U.S. Army by not having the situation corrected; and additional income or assets.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s request for cancellation of any recoupment actions or remission of any debt that may arise related to the payment of his NPSEB was carefully considered.

2. The applicant executed an addendum for a 6-year $20,000.00 NPSEB in MOS74D on 15 March 2007. He was awarded this MOS on 24October 2007. He served in this MOS in the NJARNG and OHARNG.

3. He requested a voluntary IST to the FLARNG on 1 April 2009 in duty MOS88M. The FLARNG reassigned him to a 74D position effective 29May 2009. His record shows he served 1 year and 15 days on active duty in support of Operation Iraqi Freedom in his bonus MOS (74D) prior to the FLARNG’s reassigning him to an 88M position effective 30September 2010. It appears this action was taken due to unavailability of a valid 74D position vacancy for the applicant upon his release from active duty.

4. His NPSEB addendum clearly stated he would be terminated from bonus eligibility, with recoupment, if he voluntarily transferred into a non-critical skill MOS for which the bonus was awarded upon enlistment and that recoupment would be calculated from the date of transfer.

5. The NGB denied his ETP request, with recoupment, because he had voluntarily transferred out of the contracted MOS. However, it appears that the applicant had intended to meet the requirements of his bonus agreement. Evidence indicates that both the applicant and the FLARNG attempted to maintain the applicant’s NPSEB eligibility, but for the convenience of the government were unable to do so due to the circumstances involved.

6. By law and regulation, no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment. However, in view of the foregoing, it appears it would be in the interest of equity and justice to grant the applicant the requested relief.

BOARD VOTE:

___x_____ ___x___ ___x____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was 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 by:

a. showing a waiver of recoupment action was approved, allowing him to retain any NPSEB monies already paid him and

b. refunding any monies already recouped from the individual.

___________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) AR20160000088

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ABCMR Record of Proceedings (cont) AR20160000088

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