BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120007754 


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 military records to show he is eligible to retain his Critical Skills Retention Bonus (CSRB).

2.  The applicant states the contract he signed for the CSRB does not state he would forfeit his bonus upon promotion or transfer from the Army National Guard (ARNG) to the U.S. Army Reserve (USAR).  He contends he was told before his transfer to the USAR that his anniversary CSRB payment would not be affected by his transfer to the USAR to receive a promotion.

3.  The applicant provides a copy of his written CSRB agreement, dated 
13 March 2008.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  At the time of his application, the applicant was a major/O-4 in the USAR.

3.  The CSRB agreement, dated 13 March 2008, as provided by the applicant, states:

	a.  Applicability:  to be completed by all officers/warrant officers assigned to ARNG or USAR units with entitlement to a CSRB.

	b.  Service representative responsibility:  to read and explain the CSRB requirements in the agreement.

	c.  Acknowledgment:  in connection with the applicant's assignment to Company D, 1st Battalion, 185th Aviation, Mississippi ARNG (MSARNG), he initialed this acknowledgment that he would continue to serve in area of concentration (AOC) 92A, designated as a critical skill for a period of 3 years from the date of the agreement.

	d.  Obligation:  the applicant indicated, by his initials, his acknowledgment and understanding that he must satisfactorily serve for a 3-year period in a CSRB designated critical skill, unless excused for the convenience of the Government.

	e.  Entitlement:  the applicant indicated by his initials that payment of the CSRB would be made by his commander in accordance with the current CSRB guidance.

	f.  Continuation of Benefits:  this section states that if the applicant is involuntarily transferred to another Selected Reserve unit within his component, because of unit transition, his entitlement to CSRB would continue.

	g.  Termination:  this section states that entitlement to the CSRB would be terminated if he voluntarily transfers to a non-critical skill AOC, except to fulfill a promotion obligation.

	h.  Statement of Understanding:  this section contains the applicant's signature indicating that he had read and understood each section of the agreement.  He is identified as a captain.  The document is certified and witnessed by two other Soldiers.

4.  In the processing of this case, an advisory opinion was obtained from the Personnel Policy Division, National Guard Bureau (NGB).  The opinion recommends disapproval of the applicant's request and offers the following discussion:

	a.  The applicant accepted a CSRB with the MSARNG on 13 March 2008.  On 21 April 2008, he was transferred to the USAR to accept a promotion.  At the time of the transfer, the applicant states he was told that his transfer would not have a negative effect on his anniversary payment.  The applicant has since been told by the USAR that they are not obligated to fulfill his CSRB, due to the fact that the agreement was between him and the MSARNG.

	b.  Upon a joint review of the CSRB contract by both NGB and the MSARNG, it was agreed that the contract does not stipulate the applicant had to stay in the MSARNG to continue receiving the CSRB.  However, the contract does state for benefits to continue, the transfer had to result from an involuntary transfer due to unit transition.  In this case, the applicant voluntarily transferred in order to receive a promotion.

	c.  NGB determined, after reviewing the case, that it was likely the applicant was given wrong information during the time of his transfer from the MSARNG to the USAR.  The applicant has stated he would not have transferred to the USAR if he had known he would lose the CSRB.

	d.  NGB further states that his CSRB was for a specific position in the MSARNG.  Because he maintained the same critical skills AOC in the USAR, NGB recommends the USAR consider awarding him the CSRB.

5.  On 27 November 2012, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he retained his eligibility for CSRB after his transfer to the USAR.

2.  The available evidence clearly shows that the applicant voluntarily transferred from the MSARNG to the USAR approximately 1 month after completing an agreement for CSRB with his MSARNG unit.  Furthermore, a review of the terms written in the agreement, show no provisions allowing the applicant to retain his CSRB under the circumstances of his transfer to the USAR.

3.  The applicant has not provided any documentary evidence showing he was misled or misinformed regarding the status of his CSRB as a result of his transfer.

4.  It is clearly apparent that the promotion to major was the overriding factor in his decision to leave the MSARNG so soon after committing to the CSRB agreement.  The applicant stated he would not have transferred to the USAR if he had known he would lose the CSRB.  It is equally likely that had the MSARNG known he would transfer during the following month the MSARNG would not have agreed to the CSRB.

5.  There is no apparent error or injustice in this case.  Furthermore, if he is serving in the same critical skill, the USAR could consider him for the CSRB.  However, the USAR may believe that his promotion to major was enough of an incentive.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20120007754





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ABCMR Record of Proceedings (cont)                                         AR20120007754



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