IN THE CASE OF:	

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020061 


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 a waiver of recoupment of $7,083.33 Officer Accession Bonus (OAB) debt.

2.  The applicant states his spouse does not currently work and the family depends on the income he brings in.  Payment of this debt would put him in a financial hardship.  He had previously served as an enlisted Soldier in the Nebraska Army National Guard (NEARNG) and he later became an officer.  He signed an OAB addendum on 6 June 2006 for an incentive in the amount of $10,000.00 for a contractual agreement of 6 years.  He completed 21 months of this agreement before transferring to the Air National Guard (ANG) on 13 March 2008.  During his time as an officer, he tried on numerous occasions to achieve a full-time position without success.  He was working for a pharmaceutical company at the time which underwent cuts.  He then applied for a full-time Federal Technician position within the ARNG as a supply officer.  He then transferred from the NEARNG to the NEANG without a break in service or any incentives.  During his outprocessing, he was never counseled about the recoupment of the bonus.  Nearly 17 months after his separation, he received a letter from the NEARNG G-1 notifying him of the recoupment of $703.33.  He then received another letter increasing this amount to $7,083.33 and he was told the original amount was a typographical error.

3.  The applicant provides:

* his National Guard Bureau (NGB) 337 (Oaths of Office)
* 
his NGB Form 22 (Report of Separation and Record of Service)
* his March 2008 separation orders
* an NGB Form 23B (ARNG Retirement Points History Statement)
* an OAB Addendum to Written Agreement
* his DD Form 4 (Enlistment/Reenlistment Document)
* his Termination of Bonus Memorandum
* a Notice of Indebtedness
* his waiver of debt memorandum
* a Request for Exception to Policy

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NEARNG on 16 June 1998.  He entered active duty for training (ADT) on 15 February 1999, he completed training, and he was awarded military occupational specialty 67Y (AH-1 Attack Helicopter Repairer).  He was honorably released from ADT on 30 July 1999.

2.  He successfully completed ARNG Officer Candidate School on 21 August 2005.  He was honorably discharged from the ARNG on 5 June 2006 to accept an appointment as a Reserve commissioned officer of the Army. 

3.  He was appointed as a Quartermaster (QM) second lieutenant (2LT) in the NEARNG and he executed an NGB 337 on 6 June 2006.  The NGB subsequently published Special Orders Number 202 AR extending him Federal recognition for initial appointment effective 6 June 2006.

4.  In connection with his appointment, he executed a written agreement wherein he agreed to serve in the Selected Reserve for 6 years, the full period of his agreement, and he would be paid an accession bonus in one lump sum upon completion of OBC (Officer Basic Course).  He also acknowledged the following:

If I fail to accept a commission or appointment as an officer, or I do not commence to participate, or I do not satisfactorily complete the service obligation incurred under this agreement for any of the reasons listed below (If I separate from the Selected Reserve for any reason including enlistment or voluntary order to active duty in the active forces, other than by death, injury, illness or other impairment not the result of my own misconduct or an involuntary call-up or mobilization), I understand that recoupment or entitlement to a portion of the bonus amount will be calculated.

5.  He entered ADT on 11 June 2006 and he completed the QM Basic Officer Leadership Course (BOLC).  He was honorably released from ADT on 3 October 2006.

6.  He was honorably discharged from the ARNG on 12 March 2008 subsequent to a voluntary resignation and he was transferred to the USAR Control Group (Reinforcement).

7.  He was appointed as a 2LT in the NEANG and he executed an NGB 337 on 13 March 2008.

8.  On 21 August 2009, by letter, the Director of Military Department, NEARNG, notified the applicant that his OAB was terminated effective 12 March 2008 because he, in effect, breached his written agreement by entering the ANG.  As a result, he was indebted to the Government for approximately $703.33 of unearned bonus money.  Together with this letter, he was provided a notice of indebtedness with options regarding acknowledgement, payment, and proration. However, he did not sign or acknowledge this notice.

9.  On 23 September 2009, the Office of the U.S. Property and Fiscal Officer, NEARNG, again notified the applicant that he had been found indebted to the Government in the amount of $703.33 for termination of bonus effective 12 March 2008, in accordance with the Department of Defense (DoD) Financial Management Regulation, Volume 7A, Military Pay, Policy, and Procedures.  Together with this letter he was provided a notice of indebtedness with options regarding acknowledgement, payment, and proration.  However, he did not sign or acknowledge this notice.

10.  On 19 October 2009, by letter, the Office of the U.S. Property and Fiscal Officer, NEARNG, notified the applicant that he had been found indebted to the Government in the amount of $7,083.33 (the correct amount) for termination of his bonus effective 12 March 2008, in accordance with the DoD Financial Management Regulation.  Together with this letter he was provided a notice of indebtedness with options regarding acknowledgement, payment, and proration. However, he did not sign or acknowledge this notice.

11.  On 1 April 2010, by memorandum from the State Incentive Manager, NEARNG, he was notified that his request for an exception to policy to grant relief of recoupment of his $10,000.00 OAB was disapproved.  He had previously signed an addendum on 6 June 2006 for an incentive in the amount of $10,000.00 for a contractual agreement of 6 years.  He only completed

21 months of the agreement before transferring to the ANG on 13 March 2008.  Therefore, the bonus was terminated and the funds dispersed would be recouped.

12.  In the processing of this case, on 20 July 2010, an advisory opinion was obtained Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request.  He stated that the applicant signed an addendum on 6 June 2006 and he was subsequently extended Federal recognition as a 2LT in the NEARNG on that date.  He was discharged on 12 March 2008.  His agreement clearly stated the conditions of recoupment.  The original notice incorrectly listed the amount of his debt as $703.33; however, a follow-up memorandum reflected the correct amount of $7,083.33

13.  On 21 December 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. The applicant submitted an email rebuttal on 20 January 2011 wherein he stated that after he left the NEARNG he received no more payments and that the amount owed should be prorated.

14.  ARNG Selective Reserve Incentive Program Policy Number 07-06, dated
10 August 2007, states in paragraph 14 that if an 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 of service performed before the termination date.  There is also no provision for the proration of any recoupment action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant accepted an OAB in the amount of $10,000.00 upon his appointment in the NEARNG.  His bonus was contingent upon completing 6 years of service in the NEARNG.  He was voluntarily discharged from the NEARNG on 18 March 2008 for the purpose of accepting an appointment in the ANG.  Therefore, he breached his agreement.

2.  As a result of breaching his agreement, he was no longer entitled to a portion of the bonus for the unfulfilled portion of his agreement (13 March 2008 - 5 June 2012).  Accordingly, the NEARNG initiated recoupment action against him.  It appears that an error was made in the notice of recoupment letter that was sent to the applicant by the NEARNG G-1 regarding recoupment of the debt.  However, this error was corrected in a subsequent notice to him.

3.  The applicant indicated in his rebuttal to the advisory opinion that after he left the NEARNG he received no more payments.  However, the agreement indicated the bonus was to be paid in one lump sum upon completion of OBC.  He provides no evidence to show he was not paid in one lump sum, and administrative regularity must be presumed.  Therefore, it appears that a debt of $7,083.33 (a prorated amount of $10,000) is the correct amount.

4.  The applicant's current service in the ANG is a voluntary action and does not satisfy the requirements of his agreement.  He agreed to serve for a period of
6 years in the NEARNG but did not do so.  Therefore, he should not be entitled to the 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)                                         AR20100020061



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ABCMR Record of Proceedings (cont)                                         AR20100020061



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