BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120021245 


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 an exception to policy to retain a $20,000 critical skills retention bonus (CSRB).  

2.  The applicant states:

	a.  He was commissioned as a second lieutenant (2LT) in the Washington Army National Guard (WAARNG) in 1996.  In October of 1997, he completed the Armor Officer Basic Course and returned to Washington State and began actively drilling as an armor platoon leader.  On 27 April 1999, he was awarded 12B area of concentration (AOC) designator - Armor.  The Armor AOC series was changed from 12 to 19 in April 2009.

	b.  He applied for the CSRB - a $20,000 bonus program for captains (CPT) within the Army.  At the time, the AOC designator of 19B (Armor) was listed as a critical skill.  In May 2008, he was paid the initial payment of $10,000.  During the spring of 2011, after a 3-year waiting period, he attempted to obtain the 2nd payment of $10,000 as stipulated by the CSRB contract.  The 2nd payment was denied, as the initial paperwork signed had an incorrect AOC listed as 19A (which was not on the CSRB list of designated critical AOCs). 

	c.  The initial paperwork was submitted under good faith and the proper designator of 19A versus 19B was not caught.  An appeal of the denial was pushed forward from the National Guard Bureau (NGB) to the Department of the Army (DA) to pay the 2nd payment under the 19A designator.  DA denied the 2nd bonus payment and directed him to appeal to this Board to correct his official military record to note he possesses the 19B designator.  He has been a qualified Armor Officer since 1997 and he holds the requisite AOC designators to qualify him for the CSRB bonus.  He should not be faulted for the failure of administrative personnel to properly document his accomplishments.  He recognizes the responsibility to ensure records are maintained in the proper manner, hence this correction is being sought.  He has served in good faith and has met all eligibility requirements for the CSRB bonus and should be afforded the opportunity to be paid.

3.  The applicant provides:

* Letter to a Veterans' Affairs Constituent Services Representative, Office of a Member of Congress
* Designation of branch and award of AOC memorandum
* Page 1 of his 4-page DA Form 2-1 (Personnel Qualification Record)
* Congressional correspondence
* Denial decision by the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA))
* Request for an exception to policy
* NGB recommendation to the exception to policy request
* CSRB Officer Written Agreement
* ASA (M&RA) Reserve Component (RC) CSRB memorándum
* NGB CSRB Policy memorándum
* All Army Activities (ALARACT) Message 007/2008, Subject: Temporary Policy Message Providing Implementation Guidance for Use of New CSRB for ARNG Officers and Warrant Officers and USAR Captains
* ARNG Implementation Guidance for ARNG CSRB
* Extract of Army Regulation 37-104-4 (Military Pay and Allowance Policy)
* Extract of Army Regulation 600-4 (Remission and Cancellation of Indebtedness)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the WAARNG and executed an oath of office on 17 August 1996. 

2.  He entered active duty on 10 June 1997 and successfully completed the Armor Officer Basic (Single Track) Course at the U.S. Army Armor Center, Fort Knox, KY, from 10 June to 26 September 1997. 

3.  He was honorably released from active duty on 26 September 1997.  His DD Form 214 listed his primary specialty as 12A (Armor – General).  
4.  On 27 April 1999, the WAARNG issued the applicant a memorandum awarding him the AOC of 12B (Armor), effective 17 March 1999.  He was assigned to Company C, 1st Battalion, 303rd Armor. 

5.  On 31 December 2000, he transferred to the Inactive National Guard (ING).  On 1 April 2002, he was released from the ING and transferred to Headquarters and Headquarters Company, 303rd Armor, in AOC 12B. 

6.  He attended and successfully completed the Armor Captains Career Course, Phase II, at the U.S. Army Armor School, Fort Knox, KY, from 30 May to 13 June 2003.  His DA Form 1059 (Service School Academic Evaluation Report) listed his branch as Armor and specialty as 12A. 

7.  He was promoted to CPT on 14 August 2003 in the Armor branch.  At the time, he was assigned to the 81st Infantry Brigade.   

8.  He entered active duty on 15 November 2003 and subsequently served in Kuwait/Iraq from 12 March 2004 to 9 March 2005.  He was honorably released from active duty on 4 June 2005.  His DD Form 214 listed his primary specialty as 19A (Armor Officer).   The Army officially converted/renumbered AOC 12 into 19 in September 2004. 

9.  He resigned from the ARNG and he was honorably separated from the WAARNG on 1 October 2006.  He was transferred to the USAR Control Group (Reinforcement).  His NGB Form 22 (Report of Separation and Record of Service) listed his primary specialty number and date awarded as:

* 12A Armor, General, 19970926
* 12B, Armor, 19990317

10.  On 12 October 2006, he voluntarily transferred from the USAR Control Group (Reinforcement) to the 448th Civil Affairs Battalion, a troop program unit (TPU) at Fort Lewis, WA. 

11.  On 13 December 2007, he was appointed as a Reserve commissioned officer of the WAARNG and he executed an oath of office on that date. 

12.  On 2 January 2008, he entered active duty and subsequently served in Afghanistan from 12 March 2008 to 13 December 2008.  

13.  On 13 August 2008, the WAARNG issued a memorandum designating his primary specialty as "Armor" and his Additional Skill Identification as "5K (Instructor)."
14.  He was honorably released from active duty on 4 February 2009.  His DD Form 214 for this period shows his primary specialty as 19A (Armor, General). 

15.  On 10 April 2008, he executed an Officer Written Agreement – Army RC CSRB wherein he acknowledged that in connection with his assignment and agreement to serve for a period of 3 years in a unit of the Selected Reserve (SELRES) and AOC 19A – designated as a critical CSRB – he was qualified to serve in a valid position of a TPU in a designated critical skill listed on the CSRB list.  He further acknowledged he would receive a CSRB in the amount of $20,000.00 for agreeing to serve in the designated AOC for a period of 3 years. He, a service representative, and a witnessing official authenticated this agreement with their signatures. 

16.  His Officer Evaluation Report (OER) for the period 16 August 2008 through  5 December 2008 shows he performed duties as Operations Officer, AOC 19A.

17.  He entered active duty on 29 March 2010 and subsequently served in the Horn of Africa from 13 May 2010 to 2 September 2010.  He was honorably released from active duty on 28 November 2010.  His DD Form 214 shows his primary specialty as 19A5K (Armor, General).

18.  He entered active duty on 6 June 2011 and subsequently served in the Philippines from 30 June 2011 to 10 May 2012.  He was honorably released from active duty on 9 July 2012.  His DD Form 214 shows his primary specialty as 19A (Armor, General).

19.  His OERs covering the below rating periods, show he performed duties as indicated:

* 6 December 2008 through 5 December 2009, Assessments and Effects Team Leader, in Armor Branch and Functional Area 30 (Information Operations) 6 December 2009 through 28 March 2010, Assessments and Effects Team Leader
* 29 March 2010 through 2 September 2010, Deputy Chief, Information Operations Branch, Functional Area 30
* 3 September 2010 through 5 June 20111, Information Operations Officer, Functional Area 30

20.  On 14 June 2011, during his last mobilization, he submitted an exception to policy request to retain the $20,000 CSRB.  The exception to policy memorandum stated he:

* had been issued a control number via Information Management and Reporting Center (iMARC)
* executed a CSRB addendum for AOC 19A on 10 April 2008
* received the first installment of $10,000 on 15 May 2008
* the second installment was rejected because his AOC was not listed as a critical AOC on the NGB's approved list of AOCs that qualified for the bonus

21.  On 19 October 2011, the Deputy Director of the NGB recommended approval of the exception to policy request for the applicant to retain his CSRB.  He stated:

	a.  The applicant executed an addendum on 10 April 2008 for the critical AOC of 19A.  The guidance required the officer to be fully qualified and serve in the designated critical AOC.  The applicant was fully qualified for the $20,000 CSRB on 10 April 2008 but his AOC was not a designated critical AOC when he signed the agreement.  

	b.  Although 19A was not designated a critical AOC, the applicant was qualified for the CSRB.  The WAARNG offered him the incentive to serve and he accepted the offer in good faith and has fulfilled his obligations under the contract.  Withholding the bonus would be contrary to equity and good conscience, and against the best interest of the Army. 

22.  On 15 May 2012, the ASA (M&RA) disapproved the applicant's request.  He stated the applicant was ineligible for the CSRB because he was not assigned to a critical skill approved for the bonus by the Principal Deputy Under Secretary of Defense for Personnel and Readiness.  He was improperly paid the first $10,000 installment and remains ineligible for the final payment.  He must repay the bonus already received in accordance with section 303a(e), Title 37, U.S. Code.

23.  On 23 May 2012, an official at the Office of the Deputy Chief of Staff for Personnel, G-1, responded to the applicant's Member of Congress who had sent an email regarding the applicant's CSRB.  The G-1 official stated:

	a.  The Principal Deputy Under Secretary of Defense for Personnel and Readiness approved the RC CSRB on 12 December 2007, authorizing a $20,000 bonus for specific skills designated as critical in the officer corps of the ARNG and USAR.  Headquarters, DA thereafter announced to all Army activities by message and formally notified the Director, NGB, of the designated critical skills. The NGB published its guidance to all states in February 2008, reiterating the designated skills for the bonus.  In each announcement, the only Armor skill designated as critical for the bonus was 19B. 
	b.  The applicant's primary skill, 19A, was not a designated skill for the bonus and there is no evidence in his official records indicating 19B was his primary skill on the date he executed the agreement.  However, he was mistakenly offered the bonus and signed the agreement.  The error was discovered when he sought payment of the final installment. 

	c.  The ASA (M&RA) considered his request as an exception to policy to retain the first installment and receive the final installment.  Unfortunately, the applicant was improperly paid the first installment.  As he was not eligible for the bonus, he must repay the money already received in accordance with section 303a(e), Title 37, U.S. Code.  

24.  On 2 June 2012, by letter, the applicant corresponded with a VA Constituent Services Representative, at the Office of his Member of Congress.  He provided additional documents in the form of page 1 of a previous DA Form 2-1 that shows he held the AOC of 12B on 17 March 1999, as well as the memorandum, dated 27 April 1999, that designated/awarded him AOC 12B.  He added that:

* When he signed the paperwork in April 2008, it was presented to him in a way that 19A was an eligible AOC
* He signed the agreement in good faith and did not believe there was an issue of 19A versus 19B
* When he submitted the exception to policy, he was told to submit it with the original incorrect paperwork due to the NGB's success in having the bonus paid
* He submitted the DA Form 2-1 and the AOC memorandum that confirm his 19B AOC
* When he was mobilized in 2008, he held MOS 19B
* He was qualified for the CSRB based on initial signing of the agreement and he remains eligible for the full amount

25.  It is unclear if and what response he received to this correspondence. 

26.  Office of the Under Secretary of Defense memorandum, dated 12 December 2007, approved payment of bonus to ARNG and USAR officers who agree to serve in an active status for not less than 3 years in certain AOCs designated as critical for the CSRB in accordance with Title 37, U.S. Code, section 323.  One of the AOCs designated as critical for CSRB purposes is 19B. 

27.  Office of the ASA (M&RA) Memorandum, dated 17 January 2008, announced approval of the RC CSRB for officers in the ARNG and USAER subject to Congressional reauthorization of Title 10, U.S. Code, section 323, and in compliance with announced ALARACT Message 299/2007.  The NGB and G-1 were advised that the Principal Deputy Under Secretary of Defense for Personnel and Readiness designated fewer than the requested AOCs as critical skills.

28.  ALARACT Message 007/2008, dated 18 January 2008, provided the ARNG and USAR policy for implementing and using the CSRB for ARNG and USAR officers.  The CSRB applies to ARNG officers who agree to serve for 3 years in an ARNG unit in selected specialties, among them Armor (19B). 

29.  NGB Memorandum, dated 1 February 2008, announced the implementation guidance for the ARNG CSRB.  Officer Critical Skills are identified/listed.  AOC 19B is listed but not AOC 19A. 

30.  Title 37, U.S. Code, section 303a(e), Special Pay – General Provisions, Repayment of Unearned Portion of Bonuses and Other Benefits When Conditions of Payment not Met, Termination of Entitlement to Unpaid Amounts, states:  

	a.  Except as provided in paragraphs (2) and (3), a member of the uniformed services who receives a bonus or similar benefit and whose receipt of the bonus or similar benefit is subject to the condition that the member continue to satisfy certain eligibility requirements shall repay to the United States an amount equal to the unearned portion of the bonus or similar benefit if the member fails to satisfy the eligibility requirements and may not receive any unpaid amounts of the bonus or similar benefit after the member fails to satisfy the requirements, unless the Secretary concerned determines that the imposition of the repayment requirement and termination of the payment of unpaid amounts of the bonus or similar benefit with regard to the member 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. 

	b.  The Secretary concerned may establish, by regulations, procedures for determining the amount of the repayment required under this subsection and the circumstances under which an exception to the required repayment may be granted.  The Secretary concerned may specify in the regulations the conditions under which an installment payment of a bonus or similar benefit to be paid to a member of the uniformed services will not be made if the member no longer satisfies the eligibility requirements for the bonus or similar benefit. For the military departments, this subsection shall be administered under regulations prescribed by the Secretary of Defense.

31.  Army Regulation 600-3 (Commissioned Officers Professional Development and Career Management) serves primarily as a professional development guide for all officers and describes the full spectrum of developmental opportunities an officer can expect for a successful career.  Chapter 10 covers the Armor Branch. It states the Armor branch currently has three AOCs and three skill identifiers:

	a.  19A, Armor officer, general.  These officers perform in staff positions requiring skills involving general Armor, Cavalry and Reconnaissance practical experience.  These officers should possess appropriate technical and tactical institutional Armor School training in both tank and Cavalry/scout weapons systems and have developed tactical expertise in mounted combined arms warfare.

	b.  19B, Armor.  These officers perform in command or staff positions in mounted maneuver units with tanks or mobile gun systems (MGS). 

	c.  19C, Cavalry.  These officers perform in command or staff positions in Cavalry and Reconnaissance organizations.  All Cavalry officers must complete either the Army Reconnaissance Course or the Cavalry Leader Course prior to serving in a 19C coded position. 

	d.  Skill identifiers associated with Armor AOCs are M1A2 Abrams Tank (3J); M1A1 Abrams Tank (3M); and M2/M3 Bradley CFV/IFV (3X).  

32.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in:

   a.  section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202; and

   b.  section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following: 

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG as a commissioned officer between 17 August 1996 and 1 October 2005.  As his records show, he held AOC 12A (Armor, General) as of 26 September 1997 and AOC 12B (Armor) as of 17 March 1999.  When the applicant was reappointed in the ARNG in December 2007, the Army had already renumbered and re-designated AOC 12 into the 19 series.  The applicant was appointed as an armor officer, without specifying 19A or 19B, and he was assigned AOC 19A by the WAARNG.  

2.  He executed a written agreement on 10 April 2008 addendum on 19A wherein he agreed to serve in AOC 19A, designated as a critical skill for a period of 3 years.  He, a service representative, and a witnessing official authenticated this agreement.  However, this AOC was not designated as a critical AOC.  The purpose of the CSRB was to retain Soldiers in selected specialties in a designated critical skill in order to support the ARNG in meeting critical manpower shortages.  As such, not every AOC was authorized a CSRB.  The key is to be fully qualified and serve in a designated critical skill AOC.  

3.  From a statutory standpoint, the Department of Defense's approval to pay selected AOC's designated as critical was in accordance with the law (Title 10, U.S. Code, section 323).  The Office of the Under Secretary of Defense announced the policy and listed those AOCs.  The applicant's AOC (19A) was not listed as a critical AOC.  

4.  From a regulatory standpoint, the Department of the Army and subsequently the NGB implemented the policy.  Again, the applicant's AOC was not listed as critical.  The applicant was offered the CSRB in error.  Not only had he never performed the duties of 19B after the AOC had converted and he signed the CSRB agreement, he was never eligible for the CSRB in the first place.  

5.  From an equity standpoint, his honesty, service, and deployments are not in question.  The applicant was improperly paid the first installment; however, he was not made aware of that fact until several years later.

6.  The Secretary of the Military Department concerned has the discretion to render a determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on it being contrary to a personnel policy or management objective or against equity and good conscience.  

7.  After careful review of the applicant's case, it is concluded that repayment action should not be pursued.  However, it would not be equitable to pay him the second installment of the bonus.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  _X_______  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a request to waive the applicant’s debt based on the erroneous payment of the $10,000.00 first installment of the CSRB was approved and, if applicable, refunding any monies already recouped.  

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of the second half of the CSRB. 



      _______ _ 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)                                         AR20120021245



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021245



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1