BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20120004354 


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 correction of his record to show he contracted for a Critical Skills Retention Bonus (CSRB) after he had completed the period of service required for his Officer Affiliation Bonus (OAB).

2.  He states he entered the Hawaii Army National Guard (HIARNG) in June 2005.  He signed for an OAB and incurred a 3-year service obligation on 10 June 2005.  In May 2008, he called the HIARNG Incentives Manager to inquire about his eligibility for the CSRB.  He was told he was eligible and on 19 May 2008 he contracted for the CSRB, which was 22 days before the termination of his OAB service obligation.  This was a simple oversight by both him and the incentives manager.  He did not intend to defraud the government.  The punitive action of terminating the CSRB and seeking recoupment is meant to punish those who intentionally seek to defraud the government.  He has continued to serve well beyond his service obligation and since the first CSRB bonus installment was paid, on 17 June 2008.  The Army has experienced no loss as a result of mistakenly allowing him to contract for the CSRB before he was eligible.  

3.  He provides:

* a Written Agreement – OAB Addendum
* an Officer/Warrant Officer Written Agreement – Army Reserve Components (RC) CSRB
* an HIARNG memorandum, subject:  Notification of Incentive Discrepancy and Exception to Policy (ETP) Process
* an HIARNG memorandum, subject:  Request ETP for [Applicant] CSRB
* a DA Form 2823 (Sworn Statement)
* a National Guard Bureau (NGB) memorandum, subject:  Request for ETP for Officer CSRB [Applicant]
* a DA Form 1559 (Inspector General (IG) Action Request)

CONSIDERATION OF EVIDENCE:

1.  On 10 June 2005, following service in the U.S. Army Reserve (USAR), the applicant was appointed as a captain/O-3 in the HIARNG.  He is currently serving in the HIARNG as a major/O-4.

2.  On 10 June 2005, he signed a Written Agreement – OAB Addendum.  The agreement obligated him to serve in the Selected Reserve (SELRES) for not less than 3 years.  

3.  On 19 May 2008, he signed an Officer/Warrant Officer Written Agreement – Army RC CSRB acknowledging he met all eligibility requirements for the CSRB, he would serve in area of concentration (AOC) 11A (Infantry) for a period of 
3 years from the date of the agreement, and he was not currently under contract for any bonus in a SELRES unit.  The agreement specified he would receive $20,000 in accordance with the then-current CSRB guidance.  The document was certified by the incentive manager and a witnessing officer.  

4.  He provides several documents in support of his application:

	a.  An HIARNG memorandum, dated 15 November 2011, subject:  Notification of Incentive Discrepancy and ETP Process that shows the HIARNG Incentive Manager informed him the overlapping OAB and CSRB had resulted in an unauthorized payment of $10,000.  He was informed he may be eligible for an ETP and given instructions on how to proceed with an ETP request.

	b.  A DA Form 2823, dated 15 November 2011, shows, in part, that he stated the HIARNG Incentives Manager incorrectly verified his eligibility for the CSRB, and, as a result, he inadvertently contracted for the CSRB 22 days before termination of his OAB obligation.  He stated he requested an ETP be granted to allow payment of the second installment of his CSRB.

	c.  An HIARNG memorandum, dated 21 November 2011, subject:  Request ETP for [Applicant] CSRB, shows an HIARNG personnel officer requested an ETP from the Chief, Guard Strength Education, NGB.  The personnel officer stated the applicant did not knowingly or intentionally try to defraud the government by accepting overlapping bonuses.  He would have been eligible for the CSRB if he had waited until his OAB service obligation was completed.  The personnel officer requested that, if the ETP were to be denied, recoupment of the first payment of his CSRB be waived.

	d.  An NGB memorandum, dated 17 January 2012, subject:  Request for ETP for Officer CSRB [Applicant], shows the Deputy G-1, ARNG, denied the ETP request on the basis that the applicant was not eligible for the CSRB because he had not completed the service obligation required for receipt of his OAB.  The Deputy G-1 directed the State Incentive Manager to terminate the CSRB with recoupment.  

	e.  A DA Form 1559 shows, on 20 January 2012, the applicant requested an IG evaluation of the denial of his ETP request for full payment of the CSRB.  He has not provided any evidence showing the results of an IG evaluation.

5.  On 1 February 2008, the NGB published implementation guidance for the ARNG CSRB.  The guidance stated that, among other requirements, eligible officers must have completed any current contractual obligation or bonus contract obligation incurred as a result of participation in the OAB and must have been fully qualified and serving in a designated critical skill AOC in a qualifying unit.  A list of critical AOCs attached to the guidance included AOC 11A.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows, on 19 May 2008, the applicant signed an agreement to receive the CSRB approximately 3 weeks before the end of the service obligation he incurred when he accepted an OAB.  An HIARNG Incentive Manager certified his CSRB agreement, even though NGB's implementation guidance stated officers who had not completed bonus contract obligations were not eligible to enter into a CSRB agreement.   

2.  It appears the HIARNG Incentive Manager who certified the applicant's CSRB agreement had imperfect knowledge of the requirements for entering into that agreement.  Had the applicant waited until 10 June 2008 which was the day after he completed the 3-year service obligation he incurred under his OAB agreement he would have been fully eligible to enter into the CSRB agreement.  

3.  By signing his CSRB agreement he acknowledged he was not then under contract for any bonus in a SELRES unit.  This statement was not true at the time; however, it appears he signed the agreement based on the incentive manager's imperfect knowledge of the requirements.  He has since gone on to serve well beyond the additional 3-year service obligation he would have incurred had he signed the agreement on the date he was fully eligible to do so.

4.  In view of the available evidence, it would be appropriate to:

* amend his CSRB agreement to show it was signed on 10 June 2008
* pay him any outstanding portion of the bonus specified in his CSRB agreement, provided he is otherwise qualified
* if applicable, return any previously-paid portion of his CSRB that has been recouped

BOARD VOTE:

____x____  _x_______  _x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 state Army National Guard and Department of the Army records of the individual concerned be corrected by: 

	a.  amending his CSRB agreement to show it was signed on 10 June 2008; 

	b.  paying him any outstanding portion of the bonus specified in his CSRB agreement out of ARNG funds, provided he is otherwise qualified; and

	c.  if applicable, returning any previously-paid portion of his CSRB that has been recouped.



      _______ _  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)                                         AR20120004354



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ABCMR Record of Proceedings (cont)                                         AR20120004354



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