IN THE CASE OF:	  

		BOARD DATE:	 13 December 2011 

		DOCKET NUMBER:  AR20110020270 


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 relief from termination with recoupment of his critical skill retention bonus (CSRB).

2.  The applicant states he was recently denied an exception to policy request for relief from the termination - with recoupment - of his CSRB that he received in 2008 by the Army National Guard (ARNG) Incentives Branch.  In the fall of 2008, he was told by his unit S-1 and the State Incentive manager that he qualified for the CSRB despite having received an Officer Accession Bonus (OAB) in July 2006.  He believes the CSRB was provided to him on false information.  Despite the gross negligence by the officials who told him he qualified for the CSRB, the NGB determined the financial liability resides with him and denied him relief.  The overall purpose of the CSRB was to retain individuals in designated specialties such as 11A (Infantry) for a period of no less than 3 years.  He has honored his agreement and continues to serve in the Hawaii ARNG (HIARNG) in the critical specialty of 11A as the battalion S-3 of the 1st Battalion, 299th Cavalry, 29th Brigade Combat Team.

3.  The applicant provides:

* Exception to policy request and denial memoranda
* CSRB Written Agreement
* DA Form 2823 (Sworn Statement)
* Printout of his ARNG personnel information


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Signal Corps (SC) Reserve commissioned officer in the rank of second lieutenant with concurrent call to active duty and executed an oath of office on 19 May 2000.  He served in a variety of stateside or overseas assignments and he was promoted to captain (CPT) on 1 October 2003.

2.  He was honorably released from active duty on 17 May 2005 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.  

3.  He was appointed as an SC CPT in the HIARNG and executed an oath of office on 10 July 2006.  In connection with his appointment, he executed a written agreement wherein he agreed to serve in the Selected Reserve for 3 years, the full period of his agreement, and he would be paid a $10,000 OAB.

4.  He served in a variety of positions within the 1st Squadron, 299th Cavalry, HIARNG.  He also completed the Reserve Component Maneuver Captains Career Course at Fort Knox, KY, from 30 May to 13 June 2008.

5.  On 13 December 2008, he executed a CSRB Officer/warrant Officer Agreement - Army Reserve Components wherein he agreed that in connection with his assignment to B Troop, 1st Squadron, 299th Cavalry, a unit of the Selected Reserve and an AOC designated as critical for a CSRB.  He acknowledged that he:

* He was not currently under contract for any bonus in the Selected Reserve
* He must satisfactorily serve for 3 years and he is eligible for $20,000 CSRB by agreeing to serve in the critical area of concentration (AOC) 11A 

6.  In or around February 2009, the applicant received 50% of his CSRB with a stipulation the second installment would be paid on the third anniversary.  

7.  He entered active duty on 19 August 2008 and served in Kuwait/Iraq from 31 October 2008 to 14 August 2009.  

8.  On 29 December 2008, the HIARNG published Orders 364-009 transferring him into the Infantry branch.


9.  He was honorably released from active duty to the control of the ARNG on 13 October 2009.  He was also promoted to major on 14 December 2009. 

10.  On 4 February 2011, he submitted through his chain of command a request for an exception to policy to terminate the CSRB without recoupment.  The memorandum states that a bonus control number was issued by the former Incentive Manager in error and the applicant signed the CSRB without knowing he was not eligible for the bonus. 

11.  On 3 October 2011, an NGB official denied the applicant's request for an exception to policy to grant relief from termination with recoupment of the CSRB. The official stated that the applicant signed an OAB on 10 July 2006 with a 3-year service obligation.  He contracted for the CSRB on 13 December 2008 prior to completing his OAB contractual obligation.

12.  He submitted a sworn statement wherein he stated that when he signed the CSRB agreement, he was aware that his OAB was still in effect; but, he was unaware that the CSRB and the OAB would overlap.  He was issued a bonus control number and he did not question his eligibility for the bonus.  He did not knowingly or intentionally attempt to defraud the Government.  

13.  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.  In connection with his accession on 10 July 2006, the applicant received an OAB for a 3-year contractual obligation.  However, prior to completing his contractual commitment, he executed a $20,000 CSRB agreement on 13 December 2008 wherein he stated he was not currently under contract for any bonus in the Selected Reserve.

2.  It appears at some stage the HIARNG notified him that he had been found indebted to the Government for termination of his bonus, in accordance with the DoD Financial Management Regulation.  He subsequently submitted an exception to policy to the NGB requesting the termination occur without recoupment.  

3.  The State Incentives branch denied his request because he had previously contracted for an incentive for a contractual agreement of 3 years.  He only completed 29 months of the agreement before contracting for another incentive.  Therefore, the bonus was terminated and he was notified the funds dispersed would be recouped.

4.  The applicant's current service in the ARNG under the CSRB is a voluntary action and does not satisfy the requirements of his agreement.  He agreed to serve for a period of 3 years in the ARNG under the OAB incentive but he did not do so.  He was not qualified for the CSRB at the time he contracted for this bonus.  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)                                         AR20110020270



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ABCMR Record of Proceedings (cont)                                         AR20110020270



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