IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100023385 


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, correction of the date that she signed her DD Form 2839 (Career Status Bonus (CSB) Election) from 30 November 2008 to 11 December 2008.

2.  The applicant states she signed her DD Form 2839 on 11 December 2008 when she was in Kuwait; however, the form had been filled out and dated prior to the date that she actually signed it.

   a.  She asked a Soldier working in the finance office in Kuwait if she could cross out the date and she was advised that "it [the date] wouldn't be an issue."

   b.  When she processed in at the finance office in Iraq, she was advised that the DD Form 2839 shouldn't have been processed with signatures that were out of chronological order.  She was advised to contact the Inspector General (IG) regarding resolution of the matter.

3.  The applicant provides copies of her Enlisted Record Brief, DD Form 2839, sworn statements, and email messages.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 22 January 1993.  Upon completion of training she was awarded military occupational specialty 91B (Medical Specialist).  The applicant was promoted to staff sergeant (SSG)/E-6 on 1 December 2005.
2.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant reenlisted in the RA for an indefinite period on 20 February 2007 to allow her to serve up to the retention control point for her rank.  At the time she had completed 14 years and 28 days of total active service.

3.  A DD Form 2839 is not filed in the applicant's Official Military Personnel File (OMPF).

4.  During the processing of this case, the Defense Finance and Accounting Service (DFAS), General Processing Branch, Cleveland, OH, was asked to verify information relevant to the applicant's receipt of hostile fire/imminent danger pay (HF/IDP).  DFAS confirmed that according to the Soldier's Master Military Pay Account (MMPA) she received HF/IDP and combat zone tax exclusion (CZTE) for service in Kuwait from 8 December 2008 through 27 November 2009.

5.  During the processing of this case, an Army Board for Correction of Military Records (ABCMR) staff member contacted the applicant to obtain a copy of her DD Form 2839 and any relevant documents that provide evidence of her dates of service in a HF/IDP area.  In response, the applicant provided a copy of her Enlisted Record Brief and DD Form 2839.

6.  In support of her request, the applicant provides the following documents:

   a.  Her Enlisted Record Brief that shows in:

   	(1)  section I (Assignment Information) she served in Iraq from
11 December 2008 through 24 November 2009;

   	(2)  section III (Service Data) her Basic Active Service Date (BASD) is
22 January 1993; and

   	(3)  section IX (Assignment Information) she was assigned to the U.S. Army Medical Detachment, Fort Belvoir, VA, from 5 November 2005 through
30 November 2008.
   
   b.  Her DD Form 2839 shows in:

   	(1)  section II (Determination of Eligibility) that Staff Sergeant Q----- M.
A-----, S-1 Noncommissioned Officer in Charge (NCOIC), verified on
11 December 2008 that the applicant was eligible to elect the CSB;

   	(2)  section VI (Eligible and Electing to Receive the CSB), item 12, states, in pertinent part, "I elect to receive the Career Status Bonus payment,…My election is effective once received and accepted at the 15th year of service."  Block a (I Elect to Receive the CSB as follows) shows an "X" was placed item 1 "A Single Lump Payment of $30,000."   The applicant placed her signature in item 12c of this section with a date of 30 November 2008;

   	(3)  item 13 (Witness) that Colonel (COL) D---- W. B-----, Chief Orthopaedic Services, U.S. Army Medical Activity, Fort Belvoir, placed his signature in this section with a date of 30 November 2008; and

   	(4)  section VI (Service Recording of Election - To be completed by Service Official after member makes an election to receive the bonus):

   	(a)  item 16 (CSB Election Effective Date) is blank and

   	(b)  item 17 (Recording Official) that COL B-----, Chief Orthopaedic Services, U.S. Army Medical Activity, Fort Belvoir, placed his signature in this section with a date of 30 November 2008.

   c.  A DA Form 2823 (Sworn Statement) made under oath by COL B----- on
10 September 2009.  COL B----- stated that prior to the applicant's deployment in support of Operation Iraqi Freedom, he and the applicant discussed her taking the CSB while in-country in order to take advantage of the CZTE.  The applicant agreed, she completed a DD Form 2839 without her signature, and presented it to COL B----- for signature.  The intent was that the applicant was going to take the form with her [overseas], sign it, and process it in-country.  COL B----- states that when the applicant signed the form she was "in-theater" and she was asked to date it with the same date that he had dated the form.

   d.  An Affidavit by Sergeant (SGT) T------- W. C----, Liaison Noncommissioned Officer, dated 4 August 2010.  SGT C---- stated he escorted the applicant to the local finance office on 10 December 2008 in an attempt to resolve a pay discrepancy.  She was instructed to take her [CSB] documentation back to her personnel officer for signature.  On 12 December 2008, he and the applicant returned the documents to the local finance office for processing.

   e.  Email messages spanning the period 20 December 2008 through
12 February 2010 pertaining to the applicant's DD Form 2839.

   	(1)  On 20 December 2008, the NCOIC, Customer Service, Detachment B, 208th Financial Management Company, informed the applicant that DFAS advised that since she signed the DD Form 2839 paperwork on 30 November 2008 and she was not entitled to CZTE until 1 December 2008, her bonus was taxed.

   	(2)  On 12 February 2010, Sergeant First Class (SFC) M----- J. J------, the NCOIC, Assistant IG, Task Force 1, Medical Brigade, Camp Victory, Iraq, informed the applicant that the finance office advised him that, "[t]he problem with this CSB is that the certifying officer signed before the service member did, which in this case is incorrect.  The service [member] is to sign the document prior to the certifying officer, and the certifying officer is to sign the document on the same day or after the service member did [sic].  With the Sworn statement alone, this CSB [Election form] will not be accepted or will not be processed for tax exemption."

   f.  Office of the Deputy Chief of Staff, G-1, Washington, DC, memorandum, dated 21 May 2010.  The Chief, Army Retirement Services, advised the applicant that, "[t]he DD Form 2839 submitted to DFAS showed you elected to receive the CSB on November 30, 2008.  Army Regulation 600-8-7 [Retirement Services Program] states that eligibility for CZTE is based on where the Soldier is physically located the month he/she reaches the 15-year mark.  Your records indicate that you were in CONUS [the continental United States] on the date you signed the DD Form 2839 and since you did not enter the combat zone until December 8, 2008, you are ineligible for the CZTE.  The circumstances of your case do not warrant an exception to policy."

7.  Army Regulation 600-8-7 (Retirement Services Program), prescribes policies governing military personnel retirement services.  Chapter 7 (CSB/Reduced Retired [REDUX] Pay Plan) sets forth the tasks, rules, and steps for processing applications for Soldiers making a choice under the CSB/REDUX.

   a.  Paragraph 7-2 (Background) provides that Soldiers who are eligible under current Service regulations to serve continuously to 20 years, must choose between the High-3 and the CSB/REDUX between years 14 1/2 to 15 years of active duty, although retirement will not occur until the Soldier has completed 20 years of service.  The Soldier's BASD serves as the basis when calculating for the 14 1/2 to 15 years of active duty.

   b.  Paragraph 7-3 (Rules for processing requests for a choice under the plan) provides that installation commanders are required to conduct monthly or individual CSB/REDUX briefings for eligible Soldiers once they complete 14 1/2 years of active duty to help them decide between the CSB/REDUX or High-3 retirement plans.  The options for CSB are:

* one payment of $30,000
* two annual installments of $15,000 each
* three annual installments of $10,000 each
* four annual installments of $7,500 each
* five annual installments of $6,000 each

   c.  Paragraph 7-4 outlines the steps required to process a Soldier's request to make a choice under the CSB/REDUX.  It shows for:

		(1)  Step 1 - Responsibility:  Personnel - provide eligible Soldier with written notification at the 14 1/2 year of active duty.  Personnel will include procedures for electing the CSB and an explanation of the effect that electing the CSB will have on the computation of retired pay if and when the Soldier becomes eligible,

		(2)  Step 2 - Responsibility:  Soldier - Soldier has 6 months to decide to either remain under High-3 or elect CSB/REDUX,

		(3)  Step 3 - Responsibility:  Personnel - a lieutenant colonel or the designated representative in the Soldier's chain of command must sign item 13 and item 17 of the DD Form 2839.  The same person must sign both blocks, and

		(4)  Step 4 - Responsibility:  Soldier - Soldier gives completed DD Form 2839 to the personnel officer.

   d.  Paragraph 7-6 (CZTE) shows the CSB/REDUX has a unique set of rules for CZTE eligibility.  The tax exemption is based on two dates instead of the one date, as follows:

   	(1)  If a Soldier elects CSB/REDUX before the 15th year of active service, combat zone eligibility is based on where the Soldier is physically located the month the 15-year mark is reached.  If the Soldier is in the combat zone that month, the CSB (any increments) is tax-exempt.

   	(2)  If a Soldier elects CSB/REDUX after the 15-year mark of active service (rare occasions), combat zone eligibility is based on where the Soldier is physically located the month he/she makes the election [emphasis added].  If the Soldier is in the combat zone that month, the CSB (any increments) is tax-exempt.

8.  The DD Form 2839 is a 3-page form that provides for the entry of information on pages 1 and 2, and page 3 provides instructions for completing the form. 

   a.  The Glossary shows the CSB Election Effective Date is the date the member's election to receive a CSB becomes irrevocable.  This is the date the election is received and accepted at the 15th year of service, or if later, the date received and determined acceptable by the Service concerned, but no later than the date that is 6 months after the member is notified of eligibility for the CSB.

   b.  The instructions for Section IV (Eligible and Electing to Receive the Career Status Bonus) show it is to be completed if the Soldier is eligible and desires to receive the CSB.

   c.  The instructions for Section VI (Service Recording of Election) show, in pertinent part, this section is to be completed by Service officials if the member elects to receive the CSB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the date she signed her DD Form 2839 should be corrected from 30 November 2008 to 11 December 2008 and that her CSB should be tax-exempt.

2.  Records show the applicant's BASD is 22 January 1993.  Thus, she was eligible to complete a DD Form 2839 and choose CSB during the period 22 July 2007 through 21 January 2008; however, there is no evidence she did so.

3.  The applicant reached her 15-year mark of active service on 22 January 2008.  It is not clear why the applicant did not complete a DD Form 2839 prior to reaching her 15-year mark or at any time in close proximity to that date. Nonetheless, the evidence of record clearly shows the applicant was aware of her eligibility for a CSB on 30 November 2008.

   a.  The evidence shows the applicant prepared her DD Form 2839 after her eligibility period and while in CONUS.  The DD Form 2839 shows that a colonel in her chain of supervision/command attested with his signature that he had witnessed the applicant's completion of the form on 30 November 2008.  This same officer, acting as the recording official, also witnessed the applicant's
DD Form 2839 on 30 November 2008.

   b.  Notwithstanding the contentions of the applicant and the colonel that the applicant did not sign the form on 30 November 2008, their contentions are deemed moot because the colonel (acting in the capacity of the witness and recording official) certified that the applicant affirmed her CSB election on that date.

   c.  In this case, the fact that section II (Determination of Eligibility) was signed by the S-1 NCOIC in Kuwait on 11 December 2008 is immaterial and is merely a matter of administration, as the recording official, in effect, had already certified the applicant's CSB eligibility and election on 30 November 2008.

4.  The governing Army regulation is clear regarding CZTE for a Soldier who elects CSB/REDUC after the 15-year mark of active service.  It states combat zone eligibility is based on where the Soldier is physically located the month he/she makes the election.  The applicant clearly was in CONUS when she made her CSB election.  The fact that she hand-carried her DD Form 2839 with her to Kuwait is not the determinant factor in this case.

5.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant's request or her claim to tax-exempt status for her CSB.

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)                                         AR20100023385



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ABCMR Record of Proceedings (cont)                                         AR20100023385



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