IN THE CASE OF:	  

		BOARD DATE:	  26 March 2014

		DOCKET NUMBER:  AR20130009268 


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 records to show he was entitled to a $20,000 Critical Skills Retention Bonus (CSRB) and relief from repayment of the $20,000 he has already been paid.

2.  The applicant states:

	a.  He was recently made aware by the California Army National Guard (CAARNG) Incentives Task Force (ITF) audit process that he was not eligible for payment of the CSRB because there was no contract on file for the bonus.  In April 2008, while he was attending annual training at Fort Hunter Liggett, CA, he was notified by the battalion commander that there was an officer retention bonus being offered for Engineer (EN) Corps captains (CPT).  

	b.  He then contacted the unit Retention Noncommissioned Officer (NCO), Sergeant First Class (SFC) L____, by phone and she confirmed that a retention bonus was available.  She emailed him the All Army Activities (ALARACT) message.  He read it to confirm he met the criteria, printed it out, completed the CSRB Agreement section of the ALARACT, signed it, and faxed it back to SFC L___.  She verified telephonically that she received the paperwork, confirmed his eligibility, and stated he would receive the first installment of the bonus soon.  

	c.  He did not retain a copy of the original signed document as he was in a field environment and it wasn't conducive to maintaining personnel documents.  The relevant requirements for ARNG officers listed in the ALARACT were as follows that :

		(1)  They were in areas of concentration (AOC)/military occupational specialties qualified (MOSQ) and were serving in a valid position vacancy of a troop program unit (TPU) of the Selected Reserve (SELRES).  At the time he was slotted as the battalion logistics officer in the CAARNG, 579th EN Battalion, Santa Rosa, CA.

		(2)  The AOC/MOS held was a designated critical skill and was included on the current CSRB list.  His MOS was 21B (Combat Engineer) and MOS 21B was on the CSRB list.  

		(3)  They held the grade/rank of (CPT)/O-3 listed on the CSRB list and would not attain or exceed 25 years of service on active duty or in an active status during the bonus agreement period.  His Twenty-Year Letter shows he met the criteria.

		(4)  They had 6 years or more and not more than12 years of commissioned service from the date of commission.  His Oaths of Office shows he met the criteria.

		(5)  They were not within 12 months of a transfer from active duty or another component of the SELRES.  He did not transfer to or from active duty or another component of the Reserves within 12 months before or after signing the CSRB Agreement.

		(6)  They must possess a valid baccalaureate degree from an accredited institution of higher learning.  His degree shows he met the criteria.

		(7)  They had not been non-selected for promotion to major (MAJ)/O-4 by a Department of the Army (DA) Mandatory Promotion Selection Board.  The DA Selection Board for MAJ occurred the following year in 2009 and he was selected for promotion to MAJ by that board.  

		(8)  They were not currently under contract for any bonus in a SELRES unit.  At the time he signed the CSRB Addendum, he was not under any bonus contract.

	d.  He is requesting the CSRB Addendum he signed in April 2008 be recreated and backdated or any changes made so he can keep the CSRB funds already received.  He contracted for the CSRB, met all of the qualifications for the bonus, and in the interest of equity, it would be unjust to recoup his CSRB because the CAARNG failed to maintain a copy of the contract.

3.  The applicant provides four memoranda, ALARACT message 007/2008, orders, seven pages of email, an ARNG Retirement Points History Statement, two certificates, his Officer Record Brief, an ITF Bonus Audit Form, a Master Military Pay Account (MMPA) printout, and DD Form 2789 (Waiver/Remission of Indebtedness Application).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted Reserve service, the applicant was appointed as a second lieutenant Reserve commissioned officer in the CAARNG and executed an Oath of Office on 8 August 1996.  He attained the rank/grade of CPT/O-3 on 24 July 2003.  He was assigned to the 579th EN Battalion, Santa Rosa, CA, and held MOS 21B.  This MOS has since been redesignated as 12B.  

2.  He attained the rank/grade of major (MAJ)/O-4 on 28 October 2009 and is currently assigned to the 579th EN Battalion in MOS 12B.

3.  The applicant provides a memorandum, dated 19 March 2011, from the CAARNG ITF Commander, Colonel (COL) P_______.  COL P_______ stated:

	a.  The ITF audited the applicant's records and discovered there was no contract for the CSRB that he received.  There was no evidence of fraud on the part of the Soldier.  At the time of payment, the applicant was eligible for a $20,000 CSRB.  Title 37, U.S. Code (USC), Section 332 requires that bonuses be accompanied by a written agreement.

	b.  He has a contract type listed as non-prior service contract but does not have a bonus control number (BCN).  He received $20,000 in manual payments in $5,000 increments on 25 April 2008, 29 April 2008, 1 May 2008, and 2 May 2008.  At the time of the first payment he was a CPT serving as a 21B, he was within 11 years and 8 months of his commissioned date, did not transfer to or from active duty or another Reserve Component, and possessed a bachelor's degree.

4.  In the processing of this case, on 4 March 2014, an advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended disapproval of the applicant's request.  The advisory official opined, in part, that:

	a.  The CSRB was authorized for ARNG officers from 12 December 2007 through 11 December 2010.  In order to have been eligible for the CSRB the applicant must have met the criteria specified in the ALARACT message.  A review of his records verifies he was eligible for the CSRB at the time he purportedly signed the ALARACT message.

	b.  However, the message was not a contract document or agreement.  It was an announcement of the authority to offer the CSRB and the eligibility criteria.  Further, the agreement requires a service representative (typically a recruiting/retention official) and a witnessing officer to sign on the same date as the officer.  The service representative is responsible for ensuring the officer understands the eligibility criteria and the service obligation he/she incurs upon acceptance of the bonus.  The witnessing officer verifies he/she actually witnessed the officer and the service official sign the agreement.

	c.  The applicant's statement neither identifies who the service representative and witnessing officer were, nor is there any evidence that he was ever properly contracted for the CSRB.

5.  The applicant deferred his response to the advisory opinion to his Counsel.  In a memorandum, dated 6 March 2014, the applicant's Counsel stated:

	a.  The advisory official verified that a review of the applicant's records showed he was entitled to the CSRB at the time he purportedly signed the ALARACT message.  He (Counsel) agrees the applicant was fully eligible for the CSRB.

	b.  As the applicant stated, he was notified by the battalion commander that there was an officer retention bonus offered to EN CPTs.  He further stated he contacted the Retention NCO, SFC L____, she confirmed he was qualified for the bonus, and she emailed him a copy of the ALARACT message.  He signed it, faxed it back to her, she confirmed she received the paperwork, and she stated he would receive the first installment of the bonus soon.

	c.  SFC L____ was the Battalion Career Counselor/Retention NCO and as such, she was the subject matter expert on incentives in the battalion.  She emailed the ALARACT to the applicant and upon receipt of the signed ALARACT from the applicant, she confirmed he was fully eligible for the CSRB and would soon receive payment.  Although the applicant was fully eligible for the CSRB, he was never presented with a CSRB Addendum.  He did not know, nor had reason to know, that signing a CSRB Addendum was required.  

	d.  Had SFC L___ presented the applicant with a CSRB Addendum he would have gladly signed it.  He relied on the subject matter expertise of the Battalion Career Counselor/Retention NCO.  He signed what he was told he needed to sign to receive the CSRB.  On behalf of the applicant, he should be granted relief from recoupment and a CSRB Addendum should be created so he may keep the funds he received.  To do otherwise would be unjust.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was entitled to a $20,000 CSRB and he should be granted relief from repayment of the $20,000 he has already been paid.

2.  The evidence of record confirms in April 2008 the applicant was fully eligible for the $20,000 CSRB.  It is evident an error was committed in the processing of his bonus by retention officials.  It appears the Retention NCO did not do her job properly and instead of processing a CSRB Addendum with the proper signatures and a valid BCN she had the applicant sign the ALARACT message.

3.  Notwithstanding the advisory opinion, what is clear is that the applicant acted in good faith and has fulfilled all the requirements to receive the CSRB.  He relied on the expertise of the retention officials to properly process the required paperwork for receipt of the CSRB.  Through no fault of his own, the retention official did not complete the required CSRB Addendum.  Therefore, he should not be penalized for an error committed by ARNG retention officials and he should be entitled to the $20,000 CSRB.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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 and Army National Guard records of the individual concerned be corrected by:

* showing a CSRB Addendum was completed in April 2008 for a $20,000 CSRB, all the proper officials and the applicant signed the addendum, and it contained a valid BCN 
* showing he was eligible for payment of the bonus in accordance with the terms of the CSRB Addendum as a result of this correction
* allowing him to retain the CSRB of $20,000 he has already been paid 



      _______ _   _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)                                         AR20130009268





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009268



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1