IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20090020967 


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 correction of his warrant officer (WO) accession date from 9 June 2007 to 19 July 2007.

2.  The applicant states he accepted his certificate of eligibility from the Warrant Officer Candidate School (WOCS) and always intended to fulfill his 1-year contract commitment to avoid his reenlistment bonus from being recouped.

	a.  On 18 July 2006, he received a reenlistment bonus.  The addendum states "…serve 1 year or more Selected Reserve service…recoupment is not required."

	b.  On 12 December 2006, he graduated from WOCS at Fort Rucker, AL.  He delayed becoming a WO and obtained a certificate of eligibility in order to fulfill his 1-year service obligation.

	c.  On 9 June 2007, he completed his last training assembly with his Reserve unit as an enlisted Soldier, he was administered the oath of office at the final formation of the day, and his commander pinned on his WO rank and insignia.

		(1)  He points out that the temporary Federal recognition section on the oaths of office states, "during such temporary Federal recognition…I will perform all Federal duties as if I had been appointed as a Reserve Officer of the Army/Air Force."


		(2)  He states he never worked or received pay as a WO until his 1-year service obligation was completed and he was under the impression that his appointment would not be Federally-recognized until he joined his new unit on 19 July 2007.

	d.  On 18 July 2007, he completed his 1-year service obligation.

	e.  On 19 July 2007, he attended his first training assembly with his new unit as a WO; however, his accession date was established as 9 June 2007 and this caused Army officials to initiate action to recoup his reenlistment bonus.

	f.  He states the recoupment action was due to poor communication, lack of policy and clear procedures, and a misunderstanding about the execution of his oaths of office.

	g.  He states he was not afforded due process because the reenlistment bonus was recouped without him being made aware of the recoupment action as provided for in DOD Financial Management Regulation (FMR), volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay).

	h.  He states he has contacted his finance office, military personnel office, and Inspector General's office to resolve this matter; however, he has not been successful.  He adds that this has led him to this request for correction of his military records and he is hopeful his actions lead to a policy change.

3.  The applicant provides copies of his WO appointment documents, two leave and earnings statements (LES), and a Defense Finance and Accounting Service (DFAS) Administrative Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 20 July 1992 and entered active duty in the Regular Army on 18 August 1992.  He was awarded military occupational specialty (MOS) 52D (Power Generator Equipment Repairer).  He was honorably released from active duty on 26 November 1994 and transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation.

2.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and Pennsylvania Army National Guard (PAARNG) on 17 December 1994.

3.  The applicant was ordered to active duty in support of Operation Enduring Freedom on 21 January 2005 and served in Afghanistan from 17 February to 18 August 2005.  He was honorably released from active duty on 20 September 2005 and transferred to his PAARNG unit.

4.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 28 June 2006, shows the applicant extended his [then] current enlistment agreement of 17 December 1994 in the ARNGUS and PAARNG with an expiration of term of service of 19 July 2006 for a period of 6 years to accept a 
6-year $15,000 bonus.

5.  A National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 - Reenlistment/Extension Bonus Addendum ARGNUS), dated 29 June 2006, shows in:

	a.  Section III (Bonus Amount and Payments), paragraph 1 (I will receive a bonus of $7,500.00 or $5,000.00 for a 3-year reenlistment/extension or $15,000.00 for a 6-year reenlistment/extension as indicated below), that the applicant placed his initials in subparagraph 1c, "For a 6-year reenlistment/
extension I will receive a total bonus of $15,000.00.  My lump sum payment of $15,000.00 will be processed on the date that my reenlistment or extension contract takes effect (1 day after current expiration of term of service).  (May have more than one 6-year reenlistment/extension bonus in career.)"

	b.  Section V (Termination) shows the statement, "I understand I will be terminated from bonus eligibility with recoupment if I…" and paragraph 10 states "[a]ccept a commission as an officer or an appointment as a WO after I have served 1 year or more of Selected Reserve service under this agreement.  Recoupment is not required."

	c.  Section VII (Statement of Understanding) shows the applicant, the enlisting official, and the State incentive manager signed the document.

6.  An NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 21 September 2006, shows the board examined the applicant's professional qualifications and found the "applicant is qualified to enter the WO Education System.  Upon successful completion of WOCS, applicant will be issued a 'Certificate of Eligibility' effective for 2 years from date of issue.  When position vacancy is determined, applicant is qualified for Federal recognition in the rank and MOS WO1, 001A [duties unassigned].  Upon completion of MOS certification course individual will be qualified in MOS 915A [Unit Maintenance Officer]."

7.  An NGB Form 62 (Application for Federal Recognition as an ARNG Officer or WO and Appointment as a Reserve Commissioned Officer or WO of the Army in the ARNGUS), dated 5 June 2007, shows the applicant applied for Federal recognition as a WO1 in the Ordnance Branch and appointment as a Reserve officer of the ARNG.

	a.  Section II, item 12 (Are you at present a member of any component of the Armed Forces?), shows he was assigned in an enlisted status to Company F, 228th Base Support Battalion, PAARNG.

	b.  The Commander, 228th Forward Support Battalion, PAARNG, prepared the 1st endorsement and indicated the applicant desired appointment to fill the position of Maintenance Officer (MOS 915AO), paragraph/line 708/02.

	c.  The final endorsement shows The Adjutant General, PAARNG, recommended that Federal recognition be extended to the applicant to fill the Maintenance Officer (MOS 915AO), Company G, Forward Area Forward Support Company(FSC), 228th Support Battalion (PGZG0-869), per PAARNG Orders 162-1020, dated 11 June 2007.

8.  PAARNG Orders 162-1020, dated 11 June 2007, honorably discharged the applicant from the ARNGUS effective 8 June 2007 and appointed him in the ARNG in the grade of WO1 effective 9 June 2007.  He was reassigned from Company F, Maneuver FSC, 228th Support Battalion (PGZF0-868), Lock Haven, PA, to Company G, Forward Area FSC, 228th Support Battalion (PGZG0-869), with duty assignment as Maintenance Officer (915AO), Modified Table of Organization and Equipment NG63325G08, paragraph/line 708/02, vice original vacancy, effective 9 June 2007.

9.  An NGB Form 337 (Oaths of Office) shows the applicant executed the oaths of office for appointment as a WO of the National Guard.  The temporary Federal recognition section provides, "during such temporary Federal recognition I will perform all Federal duties as if I had been appointed as a Reserve Officer of the Army/Air Force."  The oaths of office were sworn and subscribed on 9 June 2007.

10.  U.S. Army Human Resources Command, St. Louis, MO, memorandum, dated 3 April 2009, appointed the applicant as a Reserve WO of the Army for an indefinite period effective 9 June 2007.

11.  PAARNG Orders 212-006, dated 31 July 2009, promoted the applicant to chief warrant officer two (CW2) in the PAARNG effective 24 July 2009.

12.  NGB, Washington, DC, Special Orders Number 214 AR, dated 31 August 2009, announced the extension of Federal recognition of the applicant's promotion to CW2 in the ARNGUS effective 24 July 2009.

13.  In support of his application, the applicant provides the following documents:

	a.  A U.S. Army WO Career Center Diploma shows the applicant graduated from the WOCS, Class 07-03, on 12 December 2006.

	b.  An LES, dated 18 June 2007, shows the applicant attended inactive duty training (IDT) on 8, 9, and 10 June 2007 and was paid based on pay grade E-5.

	c.  An LES, dated 3 August 2007, shows the applicant attended IDT on 19 and 20 July 2007 and was paid based on pay grade WO1.

	d.  DFAS, Indianapolis, IN, letter, dated 10 November 2009, responded to the applicant's request for consideration of waiver of a $12,916.67 indebtedness resulting from the recoupment of the unearned portion of his Selective Reenlistment Bonus (SRB) for the period 9 June 2007 through 17 July 2012.

		(1)  DFAS confirmed the applicant reenlisted on 18 July 2006 for a period of 6 years, graduated from WOCS on 12 December 2006, and delayed his WO accession in order to fulfill the 1-year obligation under section V, item 10.  However, he did not serve a full year or more of service before taking the oaths of office on 9 June 2007 and recoupment of his SRB is required.

		(2)  DFAS also verified the amounts of the debt computation equal the amount being requested for waiver.

	e.  A letter from the applicant to DFAS, dated 18 November 2009, appealed the decision regarding the denial of his remission of debt to the Army due to injustice based on the evidence he provided in his original request to DFAS.

14.  There is no evidence that shows the 1-year SRB service obligation was waived or that DFAS waived the applicant's indebtedness resulting from the recoupment of his SRB.

15.  Title 37, U.S. Code, section 308i (Special pay:  prior service enlistment bonus) provides that a person who is a former enlisted member of an armed force who enlists in the Selected Reserve of the Ready Reserve of an armed force for a period of 3 or 6 years in a critical military skill designated for such a bonus by the Secretary concerned is eligible for a $15,000.00 bonus if he or she has completed a military service obligation, but has not more than 16 years of total military service and received an honorable discharge at the conclusion of that military service obligation.

16.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.

	a.  Paragraph 1-1 states the purpose of this regulation is to give 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 (DOD 7000.14-R, volume 7A, chapter 50, paragraph 5004).

	b.  Paragraph 1-5 states the objectives of remission or cancellation of debt are to remit or cancel debts to the U.S. Army that are considered to be unjust and end hardship or undue suffering.

	c.  Paragraph 1-6 states that a Soldier's debts to the U.S. Army may be remitted or canceled on the basis of this regulation in cases arising from:

* payments made in error to a Soldier
* payments made in excess of an allowance on behalf of a Soldier
* debts incurred while serving on active duty as a Soldier
* debts acknowledged as valid
* debts for which an appeal has been denied (DOD 7000.14-R, volume 7A, paragraphs 5004 and 5005)

17.  DOD FMR 7000.14-R, volume 7A, chapter 50 (Stoppages and Collections Other Than Courts-Martial Forfeitures), paragraph 5004 (Appeals), provides that when it is established that a member is indebted to the United States because of an erroneous payment made by any Military Service within DOD, the member has the right to appeal.  A member may appeal the validity of the debt, the amount, or the liability for that debt.  A member may also request review of the rate of collection on the basis of undue hardship, or upon proof that the rate of collection is inequitable.

18.  DOD Number 1340.23 (Waiver Procedures for Debts Resulting from Erroneous Pay Allowances) provides that the Defense Office of Hearing and Appeals is the proper office for granting all or part of a waiver application for debts resulting from erroneous payments of pay and allowances.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his WO accession date should be corrected from 9 June 2007 to 19 July 2007 because that is the date he intended to be appointed and it will allow him to retain his full reenlistment bonus.

2.  The applicant's contention has been carefully considered.

	a.  The applicant had honorable enlisted service beginning 20 July 1992; he served in MOS 52D, including 2 years and 3 months in the Regular Army on active duty and 6 months of active duty in support of Operation Enduring Freedom in Afghanistan.  He was honorably discharged from the ARNGUS on 8 June 2007.

	b.  Records show the applicant completed WOCS on 12 December 2006 and obtained a certificate of eligibility to delay his WO appointment.

	c.  On 9 June 2007, the applicant was administered the oaths of office by the unit commander prior to his departure from the unit.  It is reasonable to conclude the commander wanted other Soldiers of the unit to be aware of the reason for the applicant's departure from the unit (i.e., his appointment as a WO) and to recognize him for his accomplishment.

	d.  Records show DFAS paid the applicant in pay grade E-5 for his IDT on
8, 9, and 10 June 2007.

	e.  Records show the applicant was reassigned to his new unit with duty as a WO maintenance officer effective 9 June 2007.

	f.  Records show DFAS paid the applicant in pay grade WO1 for his IDT on 19 and 20 July 2007.

	g.  Records show the applicant has since been promoted to CW2 and he is currently serving as a Reserve WO in an indefinite status.

3.  There is no documentary evidence to support the applicant's claim that his appointment as a WO would be delayed until he joined his new unit on 19 July 2007.  However, that is not the overriding issue in this case.

	a.  The applicant was appointed as a WO in the USAR with duty as a maintenance officer from 9 June 2007 to the present.

	b.  His appointment as a WO occurred 40 days shy of the 1-year enlisted service obligation termination date of 18 July 2007.

		(1)  There is no evidence he performed IDT or any other military service for pay as a WO during the period 9 June 2007 through 18 July 2007.

		(2)  It is reasonable to conclude that had all parties involved been aware of the impact of this 40-day shortfall, the applicant's date of appointment would have been administratively delayed until he reported for IDT at his new unit on 19 July 2007.

	c.  Therefore, in view of the facts of this case, it would be appropriate to correct the applicant's records to show he was appointed as a Reserve WO of the Army, ARNGUS, and PAARNG effective 19 July 2007.  As a result of this correction, the applicant satisfied the 1-year Selected Reserve service agreement prior to accepting an appointment as a WO.  Thus, no recoupment of his bonus is required.

4.  The policy of the ABCMR is to not make the applicant any worse off than he was based solely on his application to this Board.  Therefore, this correction of records should not cause any adverse impact on the effective date of the applicant's promotion to CW2 as a Reserve WO of the Army, ARNGUS, and/or PAARNG.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by showing he was appointed with an accession date as a Reserve warrant officer of the Army, Army National Guard of the United States, and Pennsylvania Army National Guard effective 19 July 2007.

2.  As a result of the foregoing correction, DFAS shall cancel the applicant's Selective Reenlistment Bonus debt in accordance with the terms of this correction of records, as outlined above.  In addition, DFAS shall refund payment to the applicant the total amount of any monies garnished and/or recouped as a result of breaching his original SRB contractual obligation, not to exceed $15,000.00 (less taxes).



      _______ _ 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)                                         AR20090020967



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020967



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1