IN THE CASE OF:	 

		BOARD DATE:	    11 October 2012

		DOCKET NUMBER:  AR20120006765 


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, the second payment of an Army National Guard (ARNG) Critical Skills Retention Bonus (CSRB).

2.  The applicant states:

	a.  In 2008, he was offered a CSRB to be paid in two parts, $10,000.00 upon signing for a 3-year commitment and $10,000 upon completion of the commitment.  He was paid the first part.  Upon completion of his 3 years in November 2011, he did not receive the second payment.  After waiting a few months he asked about the payment.  He was informed that the National Guard Bureau (NGB) denied his second payment based on his branch.  He completed everything required of the contract and believes he is owed the second payment.

	b.  He signed the retention bonus for area of concentration (AOC) 19A (Armor, General).  This was approved at all levels and paid the first part due.  The CSRB does not list AOC 19A, but does list AOC 19B (Armor).  He was never informed this was an issue at the time.  When the second payment was due it was determined that he was not qualified for it.  He believes no one looked at the branch identifiers to see that they are the same branch.

	c.  He has been in the armor branch for over 10 years and has never even heard AOC 19B used.  He believes it is an outdated term for AOC 19A, but was used as a reason for denying his second payment.  He pointed this out in his exception to policy letter (also denied by NGB), but believes it was never researched to show they are the same branch.  He has checked multiple sources for any difference between AOC's 19A and 19B and could find no differences.  He completed the requirements of the contract and believes he is qualified for the payment based on the fact that AOC's 19A and 19B are the exact same thing.  He finds it hard to believe he qualified for one payment and not the second.  He seeks payment for fulfilling his contract.  He signed a contract and completed it on good terms.

3.  The applicant provides:

* ARNG Implementation Guidance for the ARNG CSRB memorandum
* Command's request for exception to policy memorandum
* reply from the ARNG Deputy G-1

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed in the Ohio ARNG as a second lieutenant on 9 September 2001 with prior enlisted service.

2.  He was awarded AOC 19A on 31 October 2008.  He was also awarded secondary AOC 19C (Cavalry) and additional AOC 14B (Short-Range Air Defense Artillery).

3.  On 8 November 2008, he executed a written agreement for an Army Reserve Components (RC) CRSB.  The agreement doesn't list an AOC.

	a.  Section III (Payments), paragraph 11, states, "I will continue to serve in AOC/MOS [military occupational specialty] designated as a critical skill for a period of three (3) years from the date of this written agreement.  (Soldier will initial next to AOC/MOS and Years)."  He initialed this section.

	b.  Section IV (Obligation) states, "I understand and hereby acknowledge that I must satisfactorily serve for the period stated in Section V of this agreement in a CSRB designated critical skill…."  He initialed this section.

	c.  Section V (Entitlement) states, "I am eligible for the CSRB, by agreeing to serve in AOC/MOS designated as a critical skill for a period of three (3) years, in the amount of $20,000.00.  Payment(s) for the CSRB will not be made before the start of the service period for which the CSRB is being awarded."  He initialed this section.

	d.  Section V also states, "I will be paid the CSRB in accordance with current CSRB guidance.  The initial bonus payment will be initiated by the gaining unit commander per published procedures on execution of this form.  I understand that all bonus payments are subject to federal and state income taxes and that I am responsible for paying those taxes."  He initialed this section.

	e.  Section IX (Statement of Understanding) shows he acknowledged and understood the contents thereof.

	f.  Section X (Certification by Service Representative) shows a military official in the grade of major certified, witnessed, and signed the agreement.

4.  The agreement doesn't list an AOC.

5.  On 27 January 2011, he extended his service obligation by 13 months in a designated billet for the purpose of assignment incentive pay at the rate of $500.00 for each month he was mobilized and served on active duty in a Title 10 status.

6.  On 1 February 2008, NGB issued ARNG Implementation Guidance for the ARNG CSRB.

	a.  Paragraph 3 states the CSRB is authorized for officers who agree to continue to serve in a Modified Table of Organization and Equipment unit or "deployable" Table of Distribution and Allowances unit in a designated critical skill for a 3-year contract period.

	b.  Paragraph 6i states that officers who meet the qualification and who execute a 3-year CSRB contract and service agreement will be paid $20,000.00. 
The bonus will be paid in two 50-percent installments.  The initial installment of 50 percent will be processed for payment on the effective date of the CSRB written agreement.  The second and final installment of 50 percent will be processed for payment on the third-year anniversary of the effective date of the CSRB agreement.

	c.  Paragraph 9 provides for termination with recoupment.  If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the Soldiers written CSRB agreement, that Soldier will not be eligible to receive any further incentive payments, except for payments for service performed before the termination date.

	d.  The officer critical skill retention bonus implementation guidance listed AOC 19B.

7.  On 28 February 2012, the applicant's command requested an exception to policy for payment of the second half of his $20,000.00 CSRB for critical AOC 19B.  The memorandum stated:

	a.  The applicant became AOC 19B qualified upon completion of the Armor Officer Basic Course on 28 August 2002.  He signed a CSRB contract on 2 November 2008.  He signed as MOS qualified for AOC 19B and was in an AOC 19A slot.  He signed a bonus agreement for $20,000.00 to be paid in two parts.

	b.  Per Section III (Acknowledgement) of the CSRB memorandum, the applicant is qualified to receive this bonus.  AOC 19B is within his MOS, Armor; AOC 19B was a designated critical skill and was on the approved CRSB list on 2 November 2008.  The applicant received the first payment of his bonus in November 2008 and became eligible to receive his second payment on 2 November 2011.  The applicant was informed that he would not receive the second payment because his MOS was not a critical MOS at the time of enlistment.  He was informed that an administrative error, no fault of his own, had been made when he completed his bonus agreement.

8.  In a memorandum, dated 3 March 2012, the ARNG Deputy G-1 advised the Ohio ARNG of the following:

	a.  An exception to policy to retain the $20,000 CSRB offered at the time of agreement on 2 November 2008 was denied.  The State Incentive Manager would terminate the incentive without recoupment.

	b.  In accordance with ARNG Implementation Guidance for the ARNG CSRB, effective 1 February 2008 to 28 February 2009, eligible applicants were offered the CSRB.

	c.  The applicant signed a CSRB agreement with the Ohio ARNG on 2 November 2008 in critical AOC 19A.  The AOC 19A cannot be validated as an authorized critical AOC and the Department of the Army has not delegated the authority to grant an exception to policy for the AOC.  NGB has the authority to grant relief from recoupment if monies have been paid; therefore, the applicant is granted relief from recoupment.

	d.  The applicant may file a claim with the Army Board for Correction of Military Records in accordance with Army Regulation 15-185 (Army Board for Correction of Military Records) if there is a belief that an error or injustice still exists.

9.  Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management) serves primarily as a professional development guide for all officers.  Chapter 10 (Armor Branch), paragraph d, states the Armor branch consists of three AOC's:

* 19A (Armor officer, general) – these officers perform in staff positions requiring skills involving general Armor, Cavalry, and Reconnaissance practical experience
* 19B (Armor) – these officers perform in command or staff positions in mounted maneuver units and tanks or mobile gun systems
* 19C (Cavalry) – these officers perform in command or staff positions in Cavalry and Reconnaissance organizations

10.  Title 37, U.S. Code, section 355(g), states a member paid a bonus under this section who fails to remain qualified in the critical military skill for which the bonus was paid during the period of service covered by the member's agreement shall be subject to the repayment provisions of section 373 of this title.

11.  Title 37, U.S. Code, section 373(a), states a member of the Uniformed Services who is paid a bonus, incentive pay, or similar benefit, the receipt of which is contingent upon the member's satisfaction of certain service or eligibility requirements, shall repay to the United States any unearned portion of the bonus, incentive pay, or similar benefit if the member fails to satisfy any such service or eligibility requirement, and the member may not receive any unpaid amounts of the bonus, incentive pay, or similar benefit after the member fails to satisfy such service or eligibility requirement.

12.  Title 37, U.S. Code, section 373(b), states that pursuant to the regulations prescribed to administer this section, the Secretary concerned may grant an exception to the repayment requirement and requirement to terminate the payment of unpaid amounts of a bonus, incentive pay, or similar benefit if the Secretary concerned determines that the imposition of the repayment and termination requirements with regard to a member of the Uniformed Services would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was awarded primary AOC 19A on 30 October 2008 and he was slotted in this AOC.  DA Pamphlet 600-3 lists the differences between 19A and 19B.  NGB stated he signed an agreement on 2 November 2008 that promised him payment of a $20,000.00 bonus in exchange for serving in critical AOC 19A.  He was paid the first part of the bonus in November 2008.  NGB granted him relief from recoupment based on its authority to grant relief.

2.  His contentions and request for payment of the second part of the CSRB was carefully considered.  The Implementation Guidance for ARNG CSRB memorandum, dated 1 February 2008, stated eligible applicants were offered a CSRB in AOC 19B.  The issue is confusing because NGB says his agreement shows his bonus AOC as 19A and his command says his bonus AOC was 19B, but the CSRB contract does not list any AOC.  

3.  However, the applicant’s command also stated that he was in an AOC 19A slot.  His agreement stated he understood that he had to satisfactorily serve in the CSRB designated critical skill.  Therefore, the evidence shows he did not work in the CSRB skill, AOC 19B, and AOC 19A was not an authorized critical AOC for the CSRB; therefore, he was not eligible for payment of a CSRB in AOC 19A.  

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 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)                                         AR20120006765



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ABCMR Record of Proceedings (cont)                                         AR20120006765



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