IN THE CASE OF:	  

		BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20120007807 


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 entitlement to a Critical Skills Retention Bonus (CSRB) in his area of concentration (AOC) 11A (Infantry) based on completion of requirements and the intent of the program.

2.  The applicant states he was denied the final disbursement of $10,000 of his $20,000 CSRB by the National Guard Bureau (NGB) due to a discrepancy in the dates on his CSRB application.

	a.  He also states he:

* was commissioned on 9 July 2002
* ordered to active duty on 27 March 2008
* promoted to captain (CPT) on 12 May 2008
* serving in an 11A position while deployed overseas in Afghanistan
* met the requirements and applied for the CSRB on 29 October 2008

   b.  In October 2008, he sent his CSRB application via facsimile to the certifying officials at the Officer Retention Office, 72nd Infantry Brigade, Texas Army National Guard (TXARNG), where it was signed and processed.  In the spring of 2009, he received the first disbursement of his CSRB.

   c.  In October 2011, he was contacted by TXARNG officials and informed that they were unable to process the (second and) final disbursement of his CSRB because of a discrepancy in the dates on his contract.  Specifically, it showed that he signed and dated the contract on 29 October 2008 and that the certifying official and witnessing officer signed and dated the contract on 29 January 2008.

   d.  He could not recall the exact date he signed the contract, but he did recall that he sent it to the TXARNG while he was deployed overseas.  In addition, he did not have a copy of the contract with the two additional signatures.

   e.  TXARNG officials advised him that the only means they had of verifying the date of the CSRB was by the contract itself.  As a result, the applicant prepared a memorandum for record (MFR) and attempted to explain the discrepancy in the dates.  He submitted the MFR within 17 days of completing the required 3-year commitment.  However, the NGB disapproved payment of the final bonus disbursement.

   f.  Upon being notified of the disapproval, he discovered that he had made a mistake in his MFR by stating he signed the contract on 29 January 2008, which added to the confusion.

   g.  He states the fact that he deployed to Afghanistan in March 2008 supports his assertion that the CSRB contract could not have been in existence, signed, or dated in January 2008.  In addition, three officers who served with him overseas have provided sworn statements supporting his assertion that he submitted the document in October 2008.

3.  The applicant provides copies of the following documents:

* a self-authored statement
* oath of office
* promotion orders
* deployment orders
* four Officer Evaluation Reports (OER)
* Bronze Star Medal certificate
* Officer/Warrant Officer Written Agreement - Army Reserve Components (RC) CSRB
* MFR, TXARNG, and NGB memoranda
* three sworn statements

CONSIDERATION OF EVIDENCE:

1.  On 9 July 2002, the applicant was appointed as a second lieutenant in the New Mexico ARNG.

2. TXARNG, Adjutant General's Department, Austin, TX, Orders 034-1008, dated 3 February 2008, assigned the applicant to Headquarters and Headquarters Company, 3rd Battalion, 141st Infantry, Weslaco, TX, effective 1 January 2008.

3.  An NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 14 February 2008, shows the applicant was found fully qualified and that he was recommended for promotion to CPT.

4.  TXARNG, Austin, TX, Orders 095-021, dated 4 April 2008, ordered the applicant to active duty in AOC 11A in support of Operation Enduring Freedom (OEF) for a period not to exceed 400 days, effective 1 April 2008.

5.  On 27 May 2009, he was honorably released from active duty and transferred to his TXARNG unit.

6.  The applicant was ordered to active duty in support of OEF on 21 January 2010 and he is currently serving at MacDill Air Force Base, FL.

7.  In support of his application, the applicant provides the following documents:

   a.  four OERs spanning the period from 1 April 2008 through 20 January 2012.  The raters evaluated his performance and potential as "Outstanding Performance, Must Promote" and the senior raters evaluated his promotion potential as "Best Qualified";

   b.  a certificate that shows he was awarded the Bronze Star Medal for meritorious service in support of OEF from 1 April 2008 to 31 March 2009;

   c.  a CSRB Agreement completed by the applicant based on entitlement to a $20,000 CSRB.

		(1)  It shows he acknowledged (in part) that he:

* was assigned to the 3rd Battalion, 141st Infantry, 36th Infantry Division, TXARNG
* had 6 or more years and not more than 12 years of ARNG commissioned service
* would continue to serve in AOC 11A for a period of 3 years
* would serve satisfactorily for the entire period

		(2)  It also shows:

* the applicant signed and dated the document on 29 October 2008
* a service representative signed and dated the document on
* 29 January 2008
* a witnessing officer signed and dated the document on 29 January 2008

	d.  an MFR, dated 12 October 2011, that shows the applicant attempted to reconcile the discrepancy in the date of his signature and the date the service representative and witnessing officer signed the CSRB Agreement.  (The MFR was submitted in support of his request for exception to policy for payment of the remaining CSRB.)

   e.  TXARNG memorandum, dated 14 September 2011, from the Adjutant to the Chief, NGB, requesting exception to policy for payment of the applicant's CSRB payment.

   f.  NGB memorandum, dated 9 January 2012, that shows the Chief, Guard Strength Directorate, denied the applicant's request for exception to policy and directed recoupment of the bonus.  He noted the ARNG CSRB program was effective from 1 February 2008 and offered through 28 February 2009.  Based on the applicant's assertion that he signed the document on 29 January 2008, that date would have been prior to him having completed 6 years commissioned service and also prior to the date the CSRB program was in effect.  Thus, the CSRB was not authorized.

   g.  Three DA Forms 2823 (Sworn Statements) prepared by Lieutenant Colonel Devin M. J----, Major Michael B. S----, and CPT Wesley D. W----.  All three officers state they served with the applicant in Afghanistan, and confirmed that he prepared and submitted his CRSB Agreement in October 2008.  They all assert that both the service representative and witnessing official apparently entered an incorrect date on the document.

8.  On 1 February 2008, 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 officer affiliation bonus and must have been fully qualified and serving in a designated critical skill AOC in a qualifying unit.  A list of the CSRB program's critical AOCs included AOC 11A.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed 6 years of ARNG commissioned service on 8 July 2008; was assigned overseas in AOC 11A on 1 April 2008; promoted to CPT on 12 May 2008; and he served satisfactorily in AOC 11A for a period of at least 3 years.  Thus, he met the requirements for entitlement to a $20,000 CSRB.

2.  The applicant contends he submitted his CSRB agreement on 29 October 2008 while he was serving overseas.  The date he entered on the CSRB agreement supports this contention.

3.  The evidence of record shows the CSRB program under review was effective 1 February 2008 and that the applicant met the 6 year commissioned service obligation in July 2008.  Thus, the probability that he submitted the document prior to these two important dates and that the service representative approved the CSRB agreement prior to the effective date of the program is highly unlikely. The evidence of record also shows that, in addition to the date the applicant entered on the CSRB agreement, three commissioned officers provided sworn statements attesting to the fact that he submitted the document in October 2008. Moreover, the initial installment of the CSRB was not paid until the spring of 2009.  In this regard, it is more likely that the service representative and witnessing officer entered an incorrect digit for the year (i.e., 08 rather than 09) when they signed the document, particularly since this was near the beginning of the year and tends to be a common error made by many individuals.

4.  Thus, the preponderance of the evidence supports the fact that the CSRB agreement was initiated by the applicant on 29 October 2008 and processed by the service representative (and witnessed) on 29 January 2009.  

5.  Therefore, in view of the available evidence, it would be appropriate to:

* amend his CSRB agreement to show it was signed by the service representative and witnessing officer on 29 January 2009
* pay the applicant any outstanding portion of the bonus specified in his CSRB agreement, provided he is otherwise qualified
* if applicable, return to the applicant 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 Department of the Army records of the individual concerned be corrected by: 

	a.  amending his CSRB agreement to show it was signed by the service representative and witnessing officer on 29 January 2009; 

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

	c.  if applicable, returning to him 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)                                         AR20120007807



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ABCMR Record of Proceedings (cont)                                         AR20120007807



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