IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120016680 


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 remission of a debt recouped from him in the amount of $5000.00.

2.  The applicant states:

	a.  After he was commissioned and he graduated from the basic officer leadership course (BOLC), he was told by classmates that they all were enitled to the officer accession bonus (OAB) .  In October 2009, he called the State Incentives Manager and was informed that he was eligible for the OAB.  He was paid half of the OAB in accordance with the policy that pays one-half upon completion of BOLC and the other half after 3 years of being in good standing with the Washington Army National Guard (WAARNG).  He received $3,750.00 which was what was left after taxes were paid.

	b.  In March 2012, he was informed he was ineligible for the OAB due to the fact that he was also enrolled in the Student Loan Repayment Program (SLRP).  He filed a request for an exception to policy and in June 2012 he was informed his request had been denied and he owed $5,000.  He was told by the State Incentives Manager that he could file an appeal through the Army Review Boards Agency.

	c.  From his persepective, he acted in good faith.  He was commissioned, graduated BOLC, and then volunteered for an Afghanistan deployment where he served honorably.  After returning to Washington, he continued to serve the State and the Nation.  He understands a mistake was made but he did not make it.  He is being held responsible for a mistake that a long departed State Incentives Manager made.  Further, recoupment of the total of $5,000.00 is unfair as he paid $1,250.00 of that amount in Federal taxes. 

3.  The applicant provides two memoranda.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army and the WAARNG, the applicant's records show he enlisted in the WAARNG on 11 August 2006 for a period of 6 years.  

2.  His DD Form 1966 (Record of Military Processing - Armed Forces of the United States), dated 11 August 2006, shows he enlisted for a prior service bonus (PSB) of $15,000.00 and the SLRP of $20,000.00.  The PSB was to be paid in two installments; $7,500.00 to be paid on the date his enlistment contract took effect, and 7,500.00 to be paid upon the 3rd anniversary of his service in the WAARNG.

3.  He was honorably released from the WAARNG on 16 August 2008 for the purpose of accepting an appointment as a commissioned officer.  He completed 2 years and 6 days of net Reserve service during this period of service.

4.  His record is void of any documentation that shows his PSB of $7,500.00 was recouped by the Army. 

5.  On 17 August 2008, he was appointed as a second lieutenant Reserve commissioned officer in the WAARNG and he executed a National Guard Bureau (NGB) Form 337 (Oaths of Office) on that date.  He was assigned to the 2nd Battaion, 146th Field Artillery, Olympia, WA.

6.  His record does not contain an OAB addendum authorizing him $10,000.00.

7.  He attended and successfully completed the Field Artillery BOLC from 4 May to 28 September 2009 at Fort Sill, OK.

8.  He was promoted to the rank of first lieutenant on 17 February 2010.

9.  The applicant provides a memorandum, dated 20 March 2012, to the applicant from the WAARNG Recruiting and Retention Battalion, Camp Murray, WA, wherein the State Incentive Manager notified him that he was not entitled to the $10,000.00 OAB on 17 August 2008 because he was participating in the SLRP.  In addition, dropping the SLRP to qualify for the bonus was not authorized at the time he signed his bonus agreement.

10.  The applicant also provides a memorandum, dated 13 June 2012, to the WAARNG Recruiting and Retention Battalion from the NGB, wherein the applicant's exception to policy request to retain the $10,000.00 OAB was denied and the State Incentive Manager was notified to terminate the incentive with recoupment.  This memorandum stated the applicant was commissioned into the WAARNG on 17 August 2008 for the OAB in critical area of concentration 13A (Field Artillery).  At the time of commissioning, he was serving on an SLRP contract.  Service members are prohibited by Federal law from receiving funds from both the SLRP and OAB incentives simualtaneously.

11.  ARNG Selected Reserve Incentive Program (SRIP) Policy Number 07-06 (effective 10 August 2007 -28 February 2009) stated eligible applicants were offered the OAB.  This SRIP also stated newly-commissioned officers were prohibited from receiving the OAB if their enlisted bonus was terminated without recoupment as a result of a commission or appointment.

12.  Title 37, U.S. Code, section 308j, states a person may not receive an affiliation bonus or accession bonus and financial assistance for the same period of time.

13.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It states, in pertinent part, applications for remission or cancellation of indebtedness must be based on injustice, hardship, or both.  The Army may remit or cancel a Soldier's debt arising from payments made in error, payments made in excess of an allowance on behalf of a Soldier, or debts incurred while serving on active duty.  To determine injustice the application must contain evidence that the applicant did not know and could not have known of the error and/or the applicant inquired of a proper authority and was told the payment was correct.  To determine injustice or hardship HRC must consider the Soldier's awareness of policy and procedures, military occupational specialty, rank, years of service, and prior experience.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the WAARNG on 11 August 2006 for a 6-year period for a PSB of $15,000.00 and the SLRP of 


$20,000.00.  He was paid at least $7,500.00 of the enlistment bonus.  The amount of financial assistance he received in the form of the SLRP is not known.  The receipt of the enlistment bonus and his receipt of the SLRP financial assistance made him ineligible for the OAB at the time of his commissioning.

2.  The applicant was commissioned in the WAARNG on 17 August 2008 for an OAB of $10,000.00.  His OAB addendum is not available for review with this case.  However, the evidence of record confirms he was not eligible for the OAB and was erroneously paid $5,000.00 of an OAB after he completed BOLC on 28 September 2009.  

3.  Although he maintains the $5,000.00 should be remitted as he received the OAB through no fault of his own, the evidence of record confirms he was paid a PSB of $7,500 and received funds from the SLRP, in addition to the erroneous OAB payment fo $5,000.00.  Federal law prohibits an OAB for an officer that received an enlistment bonus and funds from the SLRP.  In addition, the applicant has not provided any evidence that shows this debt should be remitted based on an injustice or hardship.  Therefore, he is not entitled to the requested relief.

4.  With respect to the amount of $1,200.00 that he paid in taxes, the applicant is advised to contact the Internal Revenue Service or a tax counselor in regard to filing an amended tax return. 

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)                                         AR20110012353



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ABCMR Record of Proceedings (cont)                                         AR20120016680



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