IN THE CASE OF:	  

		BOARD DATE:	  	   25 September 2008

		DOCKET NUMBER:  AR20080010808 


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 a $10,000.00 debt that resulted from overpayment of a Critical Skills Retention Bonus (CSRB).

2.  The applicant states that he is currently an Acquisition Corps (AC) officer in the Regular Army, whose basic branch was Signal Corps (SC).  At the time the CSRB was offered, he contacted the CSRB program manager at the Human Resources Command (HRC) Alexandria, to clarify which of the three Tier options he qualified for, and was told he qualified for the Tier 3 option which made him eligible for the $35,000.00 CSRB incentive.  He subsequently signed a contract in September 2007 and was paid the $35,000.00 CSRB in October 2007.  However, on 21 December 2007, he received a letter from the Defense Finance and Accounting Service (DFAS) stating that he was overpaid by $10,000.00.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Three DA Forms 2823 (Sworn Statements), dated 16 May 2008, 25 January 2008, and 1 February 2008.

		b.  DFAS Notification of Indebtedness, dated 8 February 2008.

		c.  HRC-Alexandria letter, dated 18 April 2008, denying remission or cancellation of indebtedness.


	d.  Fiscal Year (FY) 2007/2008 Army Officer Menu of Incentives Contract, dated 18 September 2007.

	e.  Memorandum, dated 14 May 1999, Initial Appointment.

	f.  Printout of the 2008/2009 Army Officer Menu of Incentives Program Frequently Asked Questions.

	g.  Military Personnel (MILPER) Message 07-237, dated 11 September 2007, Implementation of the Army Officer Menu of Incentives Program (Regular Army).

	h.  Extract of Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted members), dated 7 December 2007.

	i.  DA Form 3508 (Application for remission or Cancellation of Indebtedness), dated 1 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army on 25 May 1989 and held military occupational specialty (MOS) 96B (Intelligence Analyst).  He subsequently executed a series of reenlistments in the Regular Army and attained the rank/grade of staff sergeant (SSG)/E-6.  He was honorably discharged on 15 August 1997, to enter the Reserve Officers Training Program (ROTC).

2.  On 30 March 1999, Headquarters, Second Region (ROTC), U.S. Army Cadet Command, Fort Knox, Kentucky, published Orders 89-3-A-218, ordering the applicant to active duty, effective upon his acceptance of appointment into the USAR.  The orders stated the applicant’s basic branch as Signal Corps (SC) and his control branch as Field Artillery (FA), and that “he was a participant in the Lieutenant Branch Detail program; Basic Branch: SC; Detail Branch: FA; Period of branch detail: 2 years.”  He was further instructed to attend the FA Officer Basic Course from 24 May 1999 to 14 October 1999.

3.  The applicant’s records further show that, while attending the FA Basic Officer Course at the U.S. Army FA School, the applicant was appointed as a second lieutenant in the FA Corps of the U.S. Army Reserve (USAR) and executed an oath office on 14 August 1999.  He successfully completed the FA Basic Officer Course on 14 October 1999, and was initially assigned as a Company Fire Support Officer with the 1st Battalion, 320th FA Battalion, Fort Campbell, Kentucky.

4.  On 27 June 2001, the applicant successfully completed the Signal Officer Branch Qualification Course at the U.S. Army Signal School, Fort Gordon, Georgia, and on 12 August 2004, he completed the Signal Captains Career Course (SCCC), also at Fort Gordon, Georgia.  

5.  On 14 May 2007, the applicant enrolled into the U.S. Army Logistics Management College and successfully completed the Functional Area (FA) 51 Acquisition Qualification Course on 3 August 2007.

6.  On 18 September 2007, the applicant executed an Army Officer Menu of Incentives Contract, in which he agreed to receive a $35,000.00 CSRB in exchange for an Additional Service Obligations (ADSO) of 3 years, provided he was accessed into an active duty status in the Aviation, Transportation, Infantry, Field Artillery, or Military Intelligence Branch.  

7.  On 24 September 2007, the applicant’s battalion commander certified that the applicant met the eligibility requirements for the selected option.

8.  On 27 September 2007, the Chief Officer Retention Branch, HRC, Alexandria agreed to provide the applicant a $35,000.00 CSRB incentive effective 
27 September 2007. 

9.  On an unknown date in 2007, DFAS notified the applicant that he incurred a $10,000.00 debt as a result of overpayment of his CSRB.  He subsequently submitted an application for remission or cancellation of indebtedness, on 8 February 2008.  

10.  On 18 April 2008, the Deputy Director of Officer Personnel Management, HRC-Alexandria, notified DFAS by letter, that the applicant’s application for cancellation of indebtedness was disapproved.

11.  In his sworn statement, dated 16 May 2008, the applicant states that:

	a.  He had exhausted all possible avenues on rectifying the $10,000 debt.  He also adds that in 2007, he was contemplating the difficult decision whether to remain on active duty or resign his commission and that the CSRB for captains was an incentive for him to remain on active duty.  He contacted his branch manager on 16 September 2007 to inquire about the CSRB.  His branch manager stated that he was not involved with the program, but that from his understanding he thought the applicant qualified for Tier 3, at $35,000 and that his branch was FA;

	b.  The source documents did not clearly articulate that all of the CSRB Tier Options are based on an Officer's basic branch, and not on the branch in which an officer was first commissioned.  Since this was confusing, and did not answer his questions, he called the Officer in Charge (OIC) of the Officer Retention Program at HRC on 18 September 2007 to find out which Tier Option he qualified for.  He was assured by the OIC that he qualified for the Tier 3 Option, and the $35,000 CSRB; and

	c.  He feels that he made every reasonable effort to make sure he was submitting himself for the correct Tier Option.  His argument is based on his conversation with the program OIC, sending in a copy of his commissioning letter of appointment, and the Officer Retention Office actually staffing/processing his packet.  Clearly, there were 3 opportunities to catch the error, if any, and that he should not be penalized for their mistake and from a contract standpoint, he feels this substantiates his argument.  The Officer Retention Branch personnel at HRC are supposed to be the experts on this program and verifying that all applicants, along with their respective packets are accurate.  It is not fair to penalize the "individual" for Officer Retention Branch's errors.  He relied on their expertise to explain what bonus he was eligible for and submitted the paperwork based upon their explanation.  They received and processed his paperwork and they should have caught the mistake and prevented it before he was awarded the excessive bonus.  He requests relief for the additional $10,000 debt.  In the alternative, he requests to be held responsible for only $7,500 of the $10,000 debt, since 25% of the $10,000 did not come to him it went straight to the Internal Revenue Service (IRS).

12.  An advisory opinion was obtained on 29 July 2008 in the processing of this case.  The HRC-Alexandria Retention Officer stated that the officer’s initial accessed branch would be the foundation of the CSRB payment and that his office worked diligently to correct errors at the point of processing; however, additional errors were identified.  Upon reviewing the applicant’s contract, it was noted that the applicant submitted his contract requesting the Tier III ($35,000.00) incentive as a FA officer when it was clear that he was an FA branch-detailed officer with an accessed (basic) branch as a SC officer as shown on his accession orders.  The applicant was fully aware that he was a SC officer and was only entitled to a $25,000.00 CSRB incentive.

13.  The applicant was furnished a copy of this advisory opinion; however, he did not concur and submitted a rebuttal letter on 3 September 2008.  In his rebuttal letter, he states:

   a.  In response to paragraph 2, of the HRC Advisory Opinion, as stated by the Retention Officer, during the period he called him and asked him about his situation, he and his office were in fact processing hundreds of contracts and it is not without reason that some things could have been missed or mistakes could have been made.  In addition, the Retention Officer does not deny the fact that he might have had the conversation that he (the applicant) referenced in his sworn statement; 

   b.  “Paragraph 3 uses the term ‘clearly,’ implying that no reasonable person would not completely understand the contents of the referenced MOI MILPER message or that this message could not possibly contain any points of confusion. The fact that he did not understand this message as it applied to his circumstances, and that HRC averaged 600 inquiries per day might cause one to doubt this assertion.  For example, it is the usage of the phrase ‘initially assessed branch’ that was the basis of his phone call to HRC.  This does not say ‘basic branch’ which is a more widely understood phrase.  It was his personal opinion that he was ‘initially assessed’ into the FA branch as the commissioning letter which he has provided.” He states he called HRC and was told by the Retention Office that whatever was stated on his commissioning letter is what would be used for this program.  He then felt comfortable that FA was the correct branch to be used for his application.  As a side note, any belief by HRC that generally all commissioned officers are well versed in the specific language or policies of that Branch Detail Program is in his opinion unfounded.  None of the documents clearly explains what “initially assessed branch” definitively means or addresses officers in the Branch Detail Program;

	c.  There is concern with paragraph 4 involving the use of the term “errors.”  This use implies that at the point of processing the answer to his question on “initial assessed branch” was definitively known and was actually contrary to what he believed.  If this was indeed the case, he should have been told the correct answer when he called HRC.  It seems that it is reasonable to assume that the definition as now stated by HRC was not clearly understood and was more definitely developed at a later time, perhaps prior to the initial program audits during the week of 24 October 2007;

	d.  Paragraph 5 implies that he made an application with the intent to deceive or defraud.  Several facts are stated which he does not question, such as [Applicant] submitted a CSRB contract requesting Tier III ($35,000) incentive as a FA officer; he is a branch detailed officer, and accessed as a SC officer as presented in his records.  He was only aware of the first two of these facts at the time of his application and his commissioning letter states that he was a FA officer.  He had no intention of purposefully deceiving or defrauding, or to making an application that was known to him to be false; and

	e.  In summary, as stated in his sworn statement; the conversation he had with HRC, his commissioning letter of appointment-that was submitted with his packet for HRC to review, and the Officer Retention Office actually staffing/processing his packet, the HRC office had ample opportunity to catch this error, and he should not be penalized for their mistake.  The Officer Retention Branch at HRC manages this program and it is not fair to penalize the "individual" for the Officer Retention Branch's errors.  He relied on their expertise to explain what bonus he was eligible for.  He submitted the paperwork based upon their explanation.  They received and processed his paperwork.  It is logical that they were the ones that should have caught the mistake and prevented it before he was awarded the excessive bonus. 

14.  MILPER message 07-237, dated 11 September 2007, announced the implementation of the FY07/08 Office Menu of Incentives Program.  This was a temporary program designed to increase retention among officers with specific skills and experiences.  The menu of incentives was eligible to Regular Army captains initially accessed on active duty in selected branches.  Tier I incentives ($25,000.00) applied to captains initially accessed in Air Defense, Engineer, Finance, Quartermaster, Signal, and selected Medical Services officers.  Tier II incentives ($30,000.00) applied to captains initially accessed in Adjutant General, Armor, Chemical, Military Police, and Ordnance officers.  Tier III ($35,000) applied to captains initially accessed as Aviation, Field Artillery, Infantry, Military Intelligence, and Transportation officers. The incentive is taxable in accordance with state and Federal tax laws and is dependent upon the officer’s tax status.

15.  Army Regulation 614-100 (Officer Assignment Policies, Details, and Transfers) prescribes policies and procedures pertaining to the assignment, reassignment, details, and transfers of officers between commands, units, branches, specialties, and components of the Active Army, or between external military organizations.  It states, in pertinent part that:

	a.  The control branch is the branch to which an officer is assigned for accountability. The control branch is responsible for the career management and reassignment of its officers;

	b.  The basic branch (now known as a career field) identifies the branch and/or functional area in which officers are assigned, developed and promoted;

	c.  The branch detail is the temporary detail outside one’s basic branch to another branch for control and duty.  The military status as a member of the branch to which assigned or in which appointed is not changed as a result of detail;

	d.  The objective of the Branch Detail program is to ensure branches with large lieutenant requirements are filled to their required levels using lieutenants donor branches (basic branches) with fewer lieutenant requirements.  Donor branches are Adjutant General, Finance, Military Police, Military Intelligence, Ordnance, Quartermaster, Signal, and Transportation.  Recipient branches for the branch detail program are Air Defense Artillery, Armor, Chemical, Field Artillery and Infantry.  The branch detail period is up to 48 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was accessed as a SC officer and that he was a participant in the lieutenant branch detail program.  His basic branch was SC, his detail branch was FA, and that the period of the branch detail was 2 years.  He was issued an order on 30 March 1999 that clearly identified his basic branch as SC and his control branch as FA.

2.  The evidence of record also shows that after commissioning, the applicant, as a participant in the Branch Detail Program, was detailed immediately to his recipient branch and attended the FA officer basic course.  He was subsequently assigned to an FA position.  Upon completion of his detail, the applicant returned to his basic branch (SC), attended the Signal officer branch qualification course and the signal captains career course.  

3.  At the time the applicant executed his contract requesting the Tier II ($35,000.00) incentive as a FA officer, he was fully aware that he was a branch detailed officer with an accessed branch as SC, as shown on his accession orders, and as a SC officer, he was only entitled to $25,000.00 CSRB incentive.  In view of the foregoing evidence, it appears that the applicant was not paid the correct CSRB.  

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to coordinate with the IRS, State, County, City, and/or DFAS regarding his tax situation.  

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.




BOARD VOTE:

__X_____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined the evidence presented was sufficient to warrant a recommendation for relief.  Based on the Deputy Secretary of Defense Memorandum, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, dated 8 April 2005; and Principal Deputy Under Secretary of Defense Memorandum, Subject: Repayment of Unearned Portions of Bonuses, Special pay, and Educational Benefits or Stipends, dated 18 September 2007, the Board determined that recoupment would not be required.

2.  The officer was accessed on active duty in FA (his control branch).  He was appointed a second lieutenant in FA.  He completed the FA Basic Officer Course and was assigned to an artillery unit.  Repayment of the $10,000.00 excess CSRB that he received would be against equity and good conscience inasmuch as the officer met the intent of the CSRB to serve in FA and serve an additional 
3 years on active duty.

3.  DFAS should repay any monies that may have already been recouped.




      _______ _  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)                                         AR20080010808



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ABCMR Record of Proceedings (cont)                                         AR20080010808



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