IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120002235 


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 cancellation of the officer accession bonus (OAB) debt against him. 

2.  The applicant states:

* he signed an agreement to serve in the Indiana Army National Guard (INARNG) for 6 years in exchange for a $10,000.00 OAB
* he transferred to the U.S. Army Reserve (USAR) because his original unit, the 38th Support Battalion, closed
* his higher headquarters decided to slot him in a position but then placed a major (MAJ)/O-4 in the same position 
* his assigned unit closed/reorganized and there was no slots in his State for his area of concentration (AOC) without being under-graded or double-slotted
* he was involuntarily transferred to the 215th Medical Company due to mobilization; he was placed on standby for deployment to Iraq
* he accepted a civilian position in Maryland and he began looking for a new unit, but there was none 
* he found a USAR unit in Maryland with a unique important mission and began training with that unit while waiting for transfer orders
* he still serves in the USAR in AOC 72D (Environmental Science Officer), the same AOC he received the bonus for
* he was involuntarily transferred within the ARNG on three separate occasions
* the reassignment order that shows he was transferred based on "Soldier's request" is not true
* he accepted a civilian position with the U.S. Navy back in Indiana and moved there
* he received a notice from the Defense Finance and Accounting Service (DFAS) that he owes $6,944.44, a recoupment of the unearned portion of his OAB
* the National Guard Bureau (NGB) denied his exception to policy to waive the recoupment
* he believes as long as he served in the Selected Reserve he should not have had his bonus recouped

3.  The applicant provides:

* Exception to policy request and denial memoranda
* DFAS letter, dated 29 November 2011
* Reserve/Guard Recoupment Worksheet
* Written Agreement - OAB Addendum
* NGB Policy Number 07-06 (ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009 (10 August 2007 - 30 September 2009) with Updates, dated 10 August 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the ARNG (June 2000 to June 2006), the applicant's record shows he completed a degree in Health and Safety at Indiana State University from 21 August 2001 through 8 May 2004.  This coupled with professional experience from 14 June 2004 through 28 February 2007 authorized him an appointment as a first lieutenant (1LT)/O-2.

2.  He was appointed as a 1LT in the INARNG and he executed an oath of office on 28 February 2007.  In connection with this appointment, he completed a written agreement wherein he agreed to serve in the Selected Reserve of the ARNG for 6 years according to this written agreement in a critical skill in which accessed.  He also acknowledged he would be paid the bonus unless:

* he failed to participate satisfactorily further in training or duty with the Selected Reserve during the entire period of the service obligation, unless the failure to participate satisfactorily was due to reasons beyond his control (death, injury, illness, or other impairment)
* he involuntarily separated from the Selected Reserve unless as a result of unit inactivation, unit relocation, unit reorganization, or a reduction in Selected Reserve force
* he separated from the Selected Reserve for any reason other than death, injury, illness, or other impairment not a result of his own misconduct
* he voluntarily moved to a non-critical skill unless the move is required by the Reserve component
* if his bonus were to be recouped, the amount would be the total amount less the prorated amount for the unserved months

3.  He was assigned the primary specialty of 72D, Medical Services Corps.  He successfully attended the Army Medical Department (AMEDD) Officer Basic Course from 20 May to 10 June 2007.  He was assigned to Company E, 38th Support Battalion, 38th Infantry Division.

4.  Orders 009-1039, issued by Joint Force Headquarters, Indiana National Guard, dated 9 January 2008, released him from Company E, 38th Support Battalion and reassigning him to Company C, 113th Support Battalion, effective   9 January 2008.  The orders listed the assignment loss/reason as "Individual's Request."

5.  On 6 August 2008, the Joint Force Headquarters, Indiana National Guard, published Orders 219-1023 releasing him from Company C, 113th Support Battalion and reassigning him to the 215th Medical Company as a platoon leader effective 6 August 2008.  The orders listed the assignment loss/reason as "Mobilization of Individual."

6.  Orders 260-1042, issued by Joint Force Headquarters, Indiana National Guard, dated 16 September 2008, ordered his attachment to Headquarters and Headquarters Company, 38th Infantry Division from 1 October 2008 to              30 September 2009 for mobilization purposes.

7.  Orders 016-1086, issued by Joint Force Headquarters, Indiana National Guard, dated 16 January 2009, ordered his honorable separation from the ARNG and reassignment to the USAR Control Group (Individual Ready Reserve) effective 16 January 2009.  The orders listed the reason as "Officer requested to be separated and transferred to the USAR." 

8.  On 23 January 2009, the U.S. Army Human Resources Command (HRC) published orders assigning him to the USAR Control Group (Reinforcement) effective 23 January 2009.

9.  On 27 February 2009, HRC published orders assigning him to a Reserve unit, the USAR Consequence Management Team, Abingdon, MD, effective
26 February 2009.

10.  He was promoted to captain in the USAR with an effective date and date of rank of 29 April 2010.  His unit of assignment is shown as the USAR Consequence Management Team, Abingdon, MD.

11.  He entered active duty on 13 August 2010 and he was honorably released from active duty on 10 September 2011.

12.  On 16 September 2011, by letter, DFAS notified him that he was indebted in the amount of $6.944.44 as a result of the recoupment of a portion of his OAB.  The recoupment worksheet shows he contracted for 72 months but he only served for 22 months.  Accordingly, a pro-rated recoupment action was initiated against him.

13.  Subsequent to receipt of the debt notice, he submitted an exception to policy request wherein he argued that although his orders state the reassignment was at his own request, his reassignment was in fact involuntary.

14.  Concurrent with his exception to policy request, he also sought help through his Member of Congress.  A letter from DFAS, dated 29 November 2011, informed the member of Congress that the applicant's debt was a recovery of the unearned portion of his Army National Guard OAB.  On 28 February 2007, he contracted for 72 months in the ARNG and he received the full $10,000.00 bonus; however, he was transferred to the USAR on 16 January 2009, only serving 22 months of his contracted commitment.  The unearned portion of his bonus was recouped.

15.  On 13 December 2011, the NGB denied the applicant's exception to policy request to retain his OAB and advised him that the State Incentive Manager had terminated his bonus with recoupment.  In accordance with ARNG SRIP Policy 07-04, effective 1 January 2007, eligible applicants were offered the OAB.  He signed his agreement on 28 February 2007.  The terms of his agreement required him to serve 6 years in the ARNG.  He requested a release from the ARNG to the USAR on 16 January 2009.  He failed to complete the terms of his contract and the incentive was terminated with recoupment.

16.  DOD Financial Management Regulation 7000.14-R, Volume 7A, chapter 2, paragraph 020201 states when the conditions of a written agreement are not fulfilled, and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of the pay or benefit received.
17.  NGB Policy Number 07-06, updated on 17 February 2008, states officers who sign a 6-year OAB addendum will receive a $10,000.00 bonus.  The bonus would be terminated without recoupment in the case of involuntary separation from the ARNG as a result of unit inactivation, relocation, reorganization or a DOD directed reduction in ARNG force.  Transfer of a Soldier from the ARNG to the USAR on a conditional release will not terminate the bonus.  It will be allowed to transfer to the USAR with that Soldier.  The bonus will be marked historical in the database with remarks that the Soldier was conditionally released to the USAR on a specific date.  The bonus would be terminated when the officer transfers out of the critical unit identification code or critical skill for which the bonus is approved. 

18.  A Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that bonus repayment will not be required, if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.

19.  In the processing of this case, an advisory opinion was obtained from Headquarters, Department of the Army, G-1.  That office did not support waiver of recoupment.  His bonus agreement required he serve the full term of the obligation in the Army National Guard.  His orders indicated his transfer to the USAR was at his request and not for the convenience of the government.

20.  The advisory opinion was provided to the applicant for his comment or rebuttal.  He responded by stating he did initiate a voluntary transfer on 16 January 2009 to the USAR, but only after his ARNG unit closed and they removed him from the “critical skill” slot there and bounced him around to three different units in just over a year.  The slot they had him in when he transferred to the USAR was not the 72D critical skill position that he signed the bonus agreement for, as he had already been relieved for convenience of the government when his unit closed.  The only transfer at his request was to the USAR after moving to Maryland, and the Maryland Army National Guard did not have a 72D slot for him.  He chose to go to the USAR in order to continue to serve in his critical skill area, not knowing 3 years later this move would come back to haunt him by a bonus recoupment action.  He still serves in the Selected Reserve with the same AOC critical skill he was commissioned in, it is just with the USAR now.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the bonus debt against him should be cancelled due to the fact that he was involuntarily transferred out of his unit.
2.  He originally agreed to serve in the Selected Reserve of the ARNG in the critical specialty of 72D for 6 years from February 2007 through February 2013 and he received a $10,000.00 bonus for his commitment.

3.  Prior to completing this contractual agreement of 6 years in the Selected Reserve, specifically, 22 months into his contract, he requested a transfer to the USAR.  All the available evidence (orders, exception to policy denial letter, DFAS letter, indicate his request to transfer to the USAR was voluntary.  

4.  The applicant’s contentions and rebuttal that he transferred to the USAR only after his ARNG unit closed and they removed him from the “critical skill” slot there and bounced him around to three different units, not in a 72D position, in just over a year, is understood.  It is acknowledged that he chose to go to the USAR only in order to continue to serve in his critical skill area, and that he still serves in the Selected Reserve with the same AOC critical skill he was commissioned in, except it is with the USAR now.

5.  However, in order to satisfy the conditions of the contract he would have had to complete his original 6 years in the Selected Reserve of the ARNG.  He did not do so.  For whatever reason the ARNG failed to slot him in a 72D position, they wanted, and his contract obligated him, to remain an ARNG asset.

6.  The terms of his agreement required him to serve 6 years in the ARNG.  He requested a release from the ARNG to the USAR on 16 January 2009.  He acknowledges that he voluntarily transferred to the USAR.  He failed to complete the terms of his contract and the incentive was terminated with recoupment.  As such, his State requested a recoupment of the unearned portion of the bonus.  DFAS complied and issued the debt notice.  There is neither an error nor an injustice.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120002235



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ABCMR Record of Proceedings (cont)                                         AR20120002235



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