IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120019616 


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 the amount of $9,999.99. 

2.  The applicant states:

   a.  He signed a bonus agreement in October 2008; however, a National Guard Bureau (NGB) audit indicates he was still under a contractual agreement for an Officer Affiliation Bonus (OAB) that he initially signed upon entry into the Washington Army National Guard (WAARNG).
   
   b.  The wording "Payments for the CSRB will not be made before the start of the service period for which the CSRB is being awarded" left him confused.  The 81st Brigade Retention Noncommissioned Officer (NCO) researched the legal and contractual obligations of both bonuses and informed him, in effect, a legal course of action would be to leave the dates on the three signature blocks of the CSRB contract without dates.  The contract would be dated and enacted on the date he became eligible.
   
   c.  He honestly believed he was eligible for the CSRB bonus and it would be paid out during his deployment to Iraq when he was no longer under a service obligation for the OAB.
   
   d.  At the time, he was serving as a company commander of a mobilizing unit.  His attention was fully dedicated to ensuring that his unit was certified in its training requirements prior to deployment.  While he was ignorant of the requirements of the CSRB bonus criteria he sought input and advice from the subject matter expert and acted in accordance to guidance given.  At no point was it his intention to defraud the Government.  He signed the CSRB bonus contract in good faith after consultation.

3.  The applicant provides:

* self-authored statements
* three memoranda
* CSRB Agreement
* sworn statement
* OAB Addendum

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.  After having completed a prior period of honorable service in the U.S. Army Reserve, the applicant was granted Federal recognition and appointed a captain in the Army National Guard on 23 January 2006.  

3.  On 4 May 2006, the applicant acknowledged he understood the terms of the OAB Addendum by signing the written agreement.  He agreed to serve in the Selected Reserve (SELRES) for 3 years.  A review of the applicant's interactive Personnel Electronic Records Management System record shows an effective date and file date of 31 May 2006 for his OAB Addendum.

4.  An undated CSRB written agreement in the amount of $20,000 bears both the signatures of the applicant and service representative.  Section III (Acknowledgement) of the CSRB shows:

* the agreement was executed in connection with the applicant's assignment to Company C, 1st Battalion,161st Infantry Regiment, Bremerton, WA
* in item 10, he was not currently under contract for any bonus in a SELRES unit
* in item 11, he would continue to serve in the area of concentration (AOC)/ military occupational specialty 19A (Armor, General) designated as a critical skill for a period of 3 years from the date of this written agreement 

5.  Orders Number 276-026, issued by Headquarters, Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, dated 3 October 2007, show the applicant was transferred to the Commander position, Company C, 1st Battalion,161st Infantry Regiment, Bremerton, WA, effective 1 October 2007.

6.  Orders Number 142-517, issued by Headquarters, Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, dated 21 May 2008, show the applicant was ordered to active duty in support of Operation Iraqi Freedom on 18 August 2008.

7.  On 11 September 2009, the applicant was released from active duty and returned to the ARNG.

8.  He was promoted to major in the ARNG with an effective date and date of rank of 1 December 2010.  

9.  On 20 March 2012, the State Incentive Manager (IM) notified the applicant of a discrepancy with his CSRB and advised him to submit an exception to policy (ETP) request.  A copy of the applicant's ETP request is unavailable.

10.  On 25 June 2012, the Deputy G1, NGB, Arlington, VA, denied the applicant's ETP request to retain his CSRB.  The Deputy G1, NGB, stated:

	a.  The applicant signed a CSRB Written Agreement with the WAARNG on 26 October 2008 in critical AOC 19A.  The applicant was under contractual obligation for a $10,000 OAB for which he signed on 4 May 2006.

	b.  The applicant received an OAB and CSRB for the same period of service which constitutes a violation of All Army Activities (ALARACT) Message 007/2008.

	c.  The applicant was ineligible to retain the CSRB; therefore, the State IM will terminate the incentive with recoupment of the $10,000 payment the applicant had already received.

11.  On 1 July 2012, the applicant was notified that his ETP request to retain his CSRB was denied.

12.  ALARACT Message 07/2008, date/time group 182327Z January 2008, provided the implementation guidance for use of the CSRB for ARNG officers.  It stated, in pertinent part, eligible officers must not be under an agreement for an OAB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to retain the CSRB in the amount of $9,999.99 was carefully considered.

2.  Records show the applicant was still under a service obligation for his OAB at the time he signed his CSRB agreement.  

3.  Although he and the Service Representative failed to date the CSRB agreement, both acknowledged they understood the applicant could not be under contract for any bonus in a SELRES unit.  Records show the applicant signed his OAB agreement in 2006 and his CSRB agreement in 2008.

4.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20120019616



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ABCMR Record of Proceedings (cont)                                         AR20120019616



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