IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001812 


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, payment of his Critical Skills Retention Bonus (CSRB).

2.  The applicant states he recently volunteered to be transferred from his troop program unit (TPU) to the Individual Ready Reserve (IRR) because he was told he had to transfer to the IRR in order to continue to stay on a mobilized tour.  As a result, the Defense Finance and Accounting Service (DFAS) started to take out lump sums of his $10,000.00 CSRB immediately without warning.  He is a dedicated Reserve officer who wants to do his part in the war on terrorism and he does not believe taking away his bonus is fair.

3.  The applicant provides:

* Orders A-08-023279, dated 17 August 2010
* DA Form 67-9 (Officer Evaluation Report)
* DFAS Military Leave and Earnings Statement
* Orders 10-174-00029 (voluntary transfer to the IRR)
* Officer Written Agreement – Army Reserve Components (RC) CSRB

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as an Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 2 July 2002.  He served on active duty as a Quartermaster (QM) officer from 7 December 2003 to 13 March 2005 with service in Kuwait/Iraq from 18 February 2004 to 11 February 2005.  He was promoted to captain (CPT) on 8 February 2007.

2.  On 12 December 2008, Headquarters, 99th Regional Support Command (RSC), published Orders 08-347-00006 reassigning him to Headquarters and Headquarters Company, 316th Expeditionary Sustainment Command, Caraopolis, PA.

3.  On 23 December 2008, he executed an Officer Written Agreement – Army RC CSRB wherein he acknowledged that in connection with his assignment and agreement to serve for a period of 3 years in a unit of the Selected Reserve (SELRES) and area of concentration (AOC) 92A (QM) – designated as a critical CSRB – he was qualified to serve in a valid position of a TPU in a designated critical skill listed on the CSRB list.  He further acknowledged he would receive a CSRB in the amount of $20,000.00 for agreeing to serve in the designated AOC for a period of 3 years.

4.  On 19 February 2009, the U.S. Army Human Resources Command (HRC), St. Louis, MO, published orders ordering him to active duty for the purpose of contingency operations for operational support (CO-ADOS) for a period of 179 days effective 23 February 2009.  He was assigned to the Department of Defense (DOD) Criminal Investigation Command (CID), Fort Belvoir.

5.  On 1 June 2009, HRC again published orders ordering him to active duty for the purpose of CO-ADOS for a period of 365 days effective 21 August 2009.  He was assigned to CID, Fort Belvoir, VA.

6.  On 23 June 2010, Headquarters, 99th RSC, published Orders 10-174-00029 voluntarily reassigning him from his U.S. Army Reserve (USAR) TPU assignment, the 316th Expeditionary Sustainment Command, to the USAR Control Group (Reinforcement or IRR) effective 22 July 2010.

7.  As a result of his reassignment to the IRR, a debt was established by DFAS to recoup $10,000.00 of the applicant's CSRB.

8.  On 17 August 2010, HRC again published orders ordering him to active duty for the purpose of CO-ADOS for a period of 365 days effective 21 August 2010.  He was assigned to CID, Fort Belvoir, VA.

9.  An advisory opinion was obtained on 27 May 2011 from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1.  An official recommended the applicant not be required to pay back any unearned portion of his CSRB and should receive the unearned installments.  The official stated:

	a.  In order to be eligible for the RC CSRB, an officer must be serving in a TPU in the grade of CPT, not be under an officer accession or affiliation bonus, must have completed his or her statutory military obligation, must not have attained or exceeded 25 years of service, must possess a critical skill, must be AOC qualified and assigned against a valid position vacancy, and must agree to mobilize with his/her unit if applicable.  The applicant met the criteria for the CSRB.

	b.  He was ordered to CO-ADOS for a period of 179 days from 23 February to 20 August 2009.  He was voluntarily ordered to a second tour of CO-ADOS for 365 days from 21 August 2009 to 20 August 2010.  Finally, he was voluntarily ordered to a third CO-ADOS for 365 days from 21 August 2010 to 20 August 2011.

	c.  Prior to the report date of the third CO-ADOS, he voluntarily requested to transfer to the IRR.  Accordingly, his higher headquarters published orders transferring him to the USAR Control Group (IRR) effective 22 July 2010.  This action terminated his CSRB as he longer was assigned to a TPU.

	d.  The USAR Command G-1 has a policy that allows field grade officers to transfer to the IRR.  However, in the case of company grade officers, it is at the discretion of the TPU commander.  Therefore, it was solely up to the applicant's commander whether or not he would remain in the TPU and continue to be eligible for the CSRB while continuing on CO-ADOS.

	e.  According to DOD and Army policy, when a Soldier does not fulfill the service conditions for the pay or benefit recoupment of the unearned portion will be sought, unless the appropriate designee makes a determination that repayment would be contrary to a personnel policy or management objective, against equity or good conscience, or contrary to the best interests of the United States.

	f.  Since the USAR Command policy provides discretion to the TPU commander in instances such as those of the applicant's, one officer may be transferred to the IRR while another in a different TPU may not.  In effect, one officer may be penalized for serving consecutive ADOS or CO-ADOS while another may not.

10.  The applicant received the advisory opinion and he concurred.

11.  A memorandum, dated 26 February 2009, subject:  Repayment of Unearned Portion of Bonuses, Special Pay, and Educational Benefits or Stipends, issued by the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) established modified Army policy guidance on repayment of unearned portions of pay and benefits.  It states that repayment shall not be sought and any remaining portion of a pay or benefit due to a Soldier under a written agreement is payable in selected instances (not applicable to the applicant) and under all other circumstances when it is contrary to a personnel policy or management objective, against equity and good conscience, or contrary to the interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant executed an agreement wherein he agreed to serve in a TPU of the SELRES for a period of 3 years in a critical officer skill that is so designated by the Secretary of the Army.  He would be entitled to the full amount of the pay or benefit if he fulfilled the conditions for that pay or benefit.  In this case, the applicant did not.  The circumstances that led to his inability to fulfill the eligibility requirements related to his pay were by choice and not beyond his control.

2.  Nevertheless, the USAR transfer policy provides discretion to the TPU commander in instances such as the applicant's.  It appears the TPU commander was aware of the applicant's entry on active duty and supported it.  After all, the applicant was also filling a valid vacancy within the CID command.  

3.  It appears that repayment of the CSRB was contrary to personnel policy or management objectives and/or contrary to the best interests of the Army.  Therefore, as a matter of equity, the applicant should be entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  __X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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 paying him the full CSRB.



      _________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)                                         AR20110001812



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ABCMR Record of Proceedings (cont)                                         AR20110001812



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