IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130011090 


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 her records to:

	a.  show she executed an Officer Accession Bonus (OAB) addendum entitling her to a $10,000.00 OAB or, in the alternative, stopping any OAB recoupment actions and reimbursing her for any OAB monies previously recouped; and

	b.  show she executed a Student Loan Repayment Program (SLRP) addendum entitling her to a $15,000.00 SLRP or, in the alternative, stopping any SLRP recoupment actions and reimbursing her for any SLRP monies previously recouped.

2.  The applicant states she enlisted in the California Army National Guard (CAARNG) on 3 June 2005 for military occupational specialty (MOS) 09S (Commissioned Officer Candidate).  She joined the Army specifically to become a commissioned officer in area of concentration (AOC) 21B (Combat Engineer).  She began Officer Candidate School (OCS) a few months after her enlistment.  Her OCS was conducted one weekend a month at Camp San Luis Obispo, CA, from 2005-2007.

	a.  In mid-2006, her OCS class was notified that an OAB was available.  Master Sergeant (MSG) J____, the CAARNG State Incentives Manager, came to her OCS class on 18 August 2007, the day she graduated/was commissioned, and gave everyone in her class an OAB addendum to fill out.  MSG J____ said they would receive $5,000.00 as soon as they were commissioned and another $5,000.00 as soon as a copy of their DA Forms 1059 (Service School Academic Evaluation Report) were provided to MSG J____.  Everyone in her OCS class completed the OAB addendum.  However, she never received a copy of the signed OAB addendum, although MSG J____ promised she would be provided with a copy.

	b.  Two of her OCS classmates worked with MSG J____.  During OCS these classmates explained to her OCS class that they were eligible for the SLRP as long as they committed to serve in the CAARNG for a minimum of 6 years because they were currently enlisted.  Her class was told to call MSG J____ on the anniversary of their enlistment.  When she called, MSG J____ told her she was due to receive her first payment of $3,000.00 on 3 June 2006, the anniversary date of her enlistment, and another $3,000.00 on each anniversary date until the maximum of $18,000.00 was paid.  MSG J____ also told her she should continue to make monthly payments on her student loans even though she was receiving the SLRP.  Her entire OCS class received the same explanation from the OCS classmates working with MSG J____ when they asked if the SLRP needed to be included in their enlistment contracts.  They were all told that there was no need to include the SLRP in their enlistment contracts and a copy of Selected Reserve (SELRES) Incentive Program (SRIP) Policy Number 06-06 was provided to them as a means of further explanation.

	c.  Her records were audited during the CAARNG Incentives Task Force auditing process.  After the Incentives Task Force audit, she was informed that she was eligible to contract for the OAB, but not eligible for payment because her records did not contain an OAB addendum.  She was further informed that she was not eligible to contract for the SLRP because she was a prior-service enlistee and, as such, ineligible to receive SLRP benefits; her contracted MOS of 09S was not an authorized SLRP benefits; and her records did not contain an SLRP addendum.  She was never provided copies of her OAB and SLRP addenda and was, therefore, unable to provide them.

	d.  She would not accept any form of monetary compensation knowing that it was illegal and unjust.  MSG J____ told her and the entire OCS graduating class of 2007 that they were eligible for the OAB and SLRP.  She and her OCS classmates were unaware of any wrongdoing on the part of MSG J____.  She and her entire OCS class were the victims in a situation that was created by Soldiers who knowingly and wrongfully took money to which they had no entitlement.

3.  The applicant provides:

* self-authored statement, dated 12 March 2013 (continuation of application)
* DD Form 4, dated 3 June 2005
* Orders A-05-109248, dated 4 May 2011
* Central District of California U.S. Attorney's Office Press Release, dated 11 July 2011
* 14 pages of documents from the National Student Loan Data System
* CAARNG Legal Assistance Office memorandum, dated 18 April 2013
* Officer Record Brief (ORB)
* response to the National Guard Bureau (NGB) advisory opinion, dated 3 September 2013
* response to the Department of the Army Office of the Deputy Chief of Staff, G-1, advisory opinion, dated 26 September 2013

4.  The applicant indicated the following documents were attached as evidence; however, these documents were not provided as part of her request:

* Incentives Task Force Audit Form, OAB
* Incentives Task Force Audit Form, SLRP
* U.S. Marine Corps (USMC) DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 21 (Annex A – DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) Enlistment/Reenlistment Agreement – ARNG)
* NGB Form 337 (Oaths of Office)
* email from MSG J____
* DA Form 1059
* email from MSG J____ regarding the SLRP
* OAB addendum
* SRIP Policy Number 06-06
* critical AOC listing
* critical unit identification code (UIC) listing
* critical MOS award
* transfer orders to the U.S. Army Reserve (USAR)
* appointment orders to UIC
* SLRP payments
* SRIP Policy Number 13-01
* Personnel Qualification Record (PQR)
* bachelor's degree

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 previous enlisted service in the USMC, the applicant enlisted in the CAARNG for a period of 3 years on 3 June 2005.  Her enlistment contract contains an NGB Form 21 indicating she:

* enlisted for MOS 09S
* was assigned to Headquarters and Headquarters Company, 2nd Brigade, 40th Infantry Division, San Diego, CA

3.  CAARNG Orders 220-1067, dated 8 August 2007, appointed her as a second lieutenant (2LT) in the ARNG in the Engineer Branch effective 18 August 2007.

4.  Her records do not contain an OAB or SLRP addendum.

5.  Her records contain an NGB Form 337 showing she was granted temporary Federal recognition and appointed as a commissioned officer in the ARNG on 18 August 2007.

6.  NGB Special Orders Number 6 AR, dated 9 January 2008, granted her Federal recognition as a 2LT effective 18 August 2007.

7.  Her records contain a memorandum from the CAARNG, dated 4 August 2009, awarding her:

* Basic Branch – Engineer
* Primary Specialty Identifier – 21B (Combat Engineer)
* Secondary Specialty Identifier – 21A (Engineer, General)

8.  Her records contain a chronological statement of retirement points that indicates she transferred to the USAR in or around June 2012.

9.  She provided a press release from the U.S. Attorney's Office, Central District of California, dated 11 July 2011, which states the CAARNG's former bonus and incentive manager (MSG (Retired) J____) has entered into a plea agreement in which she admits to submitting $15.2M in false and fraudulent claims to the U.S. Department of Defense (DOD).  As part of her plea agreement, MSG J____ admitted that beginning in at least the fall of 2007 and continuing to on or about 6 October 2009, she routinely submitted false and fictitious claims on behalf of her fellow CAARNG members.  MSG J____ admitted that she submitted claims to pay bonuses to members of the CAARNG whom she knew were ineligible for loan repayment.

10.  She provided a statement from the CAARNG legal assistance office wherein counsel stated, in effect, she was fully eligible for the OAB and the only issue is that she does not have a copy of the OAB addendum.  Additionally, she was promised the SLRP and, though it is now clear she is ineligible, she served in good faith and therefore she should not be held accountable for a mistake made by an agent of the government.  Counsel submits that she should be able to keep the OAB and the SLRP as a matter of equity.

11.  An advisory opinion was received from the Personnel Policy Division, NGB, dated 29 July 2013, in the processing of this case.  The advisory official stated:

	a.  The applicant received a $10,000.00 OAB and $12,000.00 under the SLRP.  No contracts exist for either the OAB or SLRP for applicant and upon audit, both may be recouped.  The applicant requested amendment of her records and authorization to keep the OAB and SLRP money she received.

	b.  The applicant could have been eligible for either the OAB or the SLRP, but not both.  NGB recommends authorizing the applicant to keep the OAB pay and recouping the SLRP pay.

		(1)  Had the applicant contracted for SLRP at the time of enlistment, the payments would continue after commissioning in accordance with ARNG SRIP Guidance for Fiscal Year (FY) 2007, 10 August 2007-31 March 2008 (Policy Number 07-06), paragraph 141(5), which states, "Soldiers receiving SLRP will remain eligible while attending Officer Candidate School...and will also remain eligible upon commissioning or appointment, subject to the original restriction that their SLRP entitlement will be paid within the same time period established in their original enlistment documents."

		(2)  If the applicant had been receiving the SLRP, she would not have been eligible for the OAB.  Since an SLRP addendum to the enlistment contract was not done at the time of enlistment, she was not eligible to receive SLRP after the fact.  However, the OAB was presumably completed on the day of commissioning, but the paperwork was lost.

		(3)  In order to be eligible for the OAB, the Soldier may not be already receiving money for SLRP.  Title 37, USC, section 308j, paragraph f, states, "A person may not receive an affiliation bonus or accession bonus under this section and financial assistance under chapter 1608, 1609, or 1611 of Title 10, or under section 302g of this title, for the same period of service."  The applicant's student loans are under Title 10, USC, chapter 1609, section 16301.

	c.  Regarding the OAB, the applicant's commissioning date was 18 August 2007, at which time she met the eligibility requirements to receive the bonus.  She received a $10,000.00 OAB.  The applicant was eligible and signed the contract at the appropriate time to receive the OAB.  Therefore, she should be allowed to keep the $10,000.00 OAB pay received.

		(1)  An audit determined the bonus should be recouped because a contract does not exist.  The law in effect in 2007 required a written agreement, reference Title 37, USC, section 308j, paragraph (e), which states, "Upon acceptance of a written agreement by the Secretary concerned under this section, the total amount of the bonus payable under the agreement becomes fixed."

		(2)  In the applicant's memorandum, she states she signed a contract with the State Incentives Manager on the date of commissioning.  This is the correct procedure in accordance with ARNG SRIP Guidance for FY 07 (10 August 2007-31 March 2008), Policy Number 07-06), paragraph 70, which states, "Applicants must sign their bonus addenda on the date that they accept their commission."  The applicant was told she would be sent a copy, but she never received one.  This administrative error was not the applicant's fault.

	d.  With regard to the SLRP, the applicant did not contract for the SLRP at the time of her enlistment on 3 June 2005.  The applicant was erroneously told by the State Incentives Manager that she was eligible for the SLRP while in OCS.  The applicant, believing she was eligible, sent the documents requested by the State Incentives Manager who initiated SLRP payments.  Having already enlisted, the applicant was not eligible to receive SLRP at the time she did; therefore, the $12,000.00 should be recouped.

		(1)  In order to receive SLRP, an addendum to the enlistment contract must be completed at the time the enlistment contract is completed.  In accordance with National Guard Regulation 600-7 (SRIP), paragraph 1-13c, "All required addenda will be completed at the time of enlistment/reenlistment or extension.  An addendum cannot be completed after the fact in order to gain eligibility for an incentive or the SLRP."

		(2)  In the applicant's memorandum, she states she was told about the SLRP while already in OCS.  She contacted the State Incentives Manager to inquire about SLRP.  The Incentives Manager told her she was eligible and enrolled the applicant in SLRP.  A total of $12,000.00 in SLRP funds was paid to her.  The State Incentives Manager was wrong to enroll the applicant in the SLRP because the applicant did not have the SLRP addendum in her enlistment contract, and was therefore ineligible to enroll after the fact.

12.  She provided a memorandum from the CAARNG Legal Assistance Office, dated 3 September 2013, in response to the advisory opinion from NGB.  Counsel stated he agrees with NGB that the applicant should be relieved from recoupment of the $10,000.00 in OAB funds received.

	a.  NGB stated that OAB and SLRP cannot be paid for overlapping periods and counsel agreed.  The receipt of both OAB and SLRP for overlapping periods is not permitted under Title 37, USC, section 308J.  Furthermore, counsel understands that the ABCMR cannot create an SLRP addendum that violates the aforementioned USC.  However, based on equity, counsel requested the applicant's relief from recoupment of the $12,000.00 in SLRP funds already paid.

	b.  It is inequitable to permit the CAARNG, NGB, and the Army to enter into an agreement with a Soldier, then rescind that agreement after the Soldier has fully performed, when the Soldier can refund her benefit of the bargain (SLRP funds), but the Army cannot refund their benefit (6 years of honorable service that the applicant gave the Army).  Based on these reasons, counsel requested relief from recoupment for both the OAB and SLRP funds received, because to do otherwise would be unjust.

13.  Subsequent to providing her response to the NGB advisory opinion, the applicant or an agent working on the applicant's behalf contacted the Army G-1.  The G-1 contacted the ABCMR and requested a copy of the applicant’s NGB advisory opinion and the applicant's ABCMR request.  The ABCMR provided the G-1 with the requested information.

14.  The G-1 provided a new advisory opinion, dated 26 September 2013, wherein the advisory official stated:

	a.  Title 37, USC, section 308j, is the statutory authority for the SELRES OAB and prescribes eligibility criteria.  Paragraph (f) of section 308j indicates a person may not receive an accession bonus and financial assistance under Title 10, USC, chapter 1608, 1609, or 1611, or under Title 37, USC, section 302g, for the same period of service.  Title 10, chapter 1609, section 16303, is the statutory authority for the SLRP.  Under the provisions of paragraph (f) of section 308j, it unlawful for the applicant to receive money for SLRP and the OAB while simultaneously completing the service obligation for each incentive.  These restrictions are also included in guidance for the bonus in DOD Instruction 
1205.21; DOD Financial Management Regulation, volume 7A, chapter 56, paragraph 560106; All Army Activities (ALARACT) Message 017/2005; and the OAB agreement that the applicant purportedly signed at commissioning.  Since there is no evidence the applicant was eligible for or offered the SLRP at the time she enlisted for 09S (the OCS enlistment option), and it would have been unlawful for her to receive SLRP funds in addition to the OAB, and recoupment of the SLRP funds she has received is appropriate in this instance.

	b.  A review of the ARNG SRIP announcement in effect on the date the applicant was commissioned revealed her AOC (21A, later converted to 12A) was eligible for the OAB.  Notwithstanding the absence of a signed OAB agreement at present, the applicant was qualified for the OAB and as an OCS candidate should have been counseled about eligibility for the OAB prior to commissioning, as she states in her application.  Since the applicant received her first bonus installment in the amount of $5,000.00, which would have required a signed OAB agreement to process the payment, it appears that she was properly offered and signed an OAB agreement in accordance with Army and NGB policy at the time of commissioning.  However, an investigation of the CAARNG Incentives Program revealed mismanagement and fraud by officials responsible for administering incentives.  Therefore, it is possible that the OAB agreement has been misplaced or lost.

	c.  Based upon the aforementioned statutory and policy restrictions and the facts as outlined above, the Army G-1 recommends disapproval of the applicant's application regarding the waiver of recoupment of SLRP funds she received and receipt of additional SLRP funds.  While the applicant complied with all terms of the contracts offered to her by the service representative, she was offered the SLRP in contravention to law and DOD and Army policy because she contracted for the OAB.  Further, the Army G-1 recommends the waiver of recoupment of OAB funds already received and payment of the final OAB installment, prorated by the unserved portion of service in the ARNG, as the applicant transferred to the USAR on 1 August 2012 after serving only 4 years, 11 months, and 14 days of the 6-year service obligation to the ARNG.

	d.  The Army G-1 recommends furnishing a copy of the Board's decision to NGB and/or the Reserve Pay Center, Fort McCoy, in order to terminate or finalize the recoupment actions and for payment of the prorated final OAB installment, as applicable.

15.  The applicant provided a statement from the CAARNG legal assistance office, dated 26 September 2013, in response to the advisory opinion from the Army G-1.  Counsel stated he agrees that the applicant is entitled to receipt of the entire $10,000.00 in OAB funds.  Additionally, counsel reiterated the argument he made in his response to the NGB advisory opinion regarding the receipt of both OAB and SLRP for overlapping periods and restated that it would be inequitable and unjust to recoup the SLRP funds previously received by the applicant because she fulfilled her portion of the agreement in good faith even though the Army is unable to locate her SLRP addendum.

16.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) states applicants for programs administered by this regulation are required to sign documents which specify the eligibility criteria and the term of service for the desired incentive.  The document will contain an acknowledgement that the applicant has been advised of and understands the benefits of the program and the conditions which can cause suspension or termination and recoupment is applicable.  These documents will be authenticated by a proper witnessing official and will include the preparation date.  All required addenda will be completed at the time of enlistment/reenlistment or extension.  An addendum cannot be completed after the fact in order to gain eligibility for an incentive or the SLRP.

17.  NGB Policy Number 05-02, FY 05 SRIP Policy Guidance for 14 December 2004-30 September 2005, only offered the SLRP bonus for non-prior service (NPS) personnel enlisting in one of their States' NPS critical MOS's and/or ARNG Soldiers reenlisting or extending.  MOS 09S is not included among the MOS's qualifying for an SLRP bonus in FY 05 Approved MOS List (14 December 2004-2005).

18.  ALARACT Message 017/2005, dated 25 January 2005, subject:  Temporary Policy Message Providing Implementation Guidance for Use of New SELRES OAB's Authorized by the Assistant Secretary of the Army for Manpower and Reserve Affairs as a Result of Ronald W. Reagan National Defense Authorization Act FY 05, states SELRES OAB's (accession) shall be used to attract and retain qualified commissioned officers possessing or qualifying for training in critical skills, grades, and/or units designated by the Secretary of the Army as critical to meet manpower shortages in the ARNG of the United States and USAR.  The accession bonus shall apply to newly-appointed commissioned officers (2LT) who agree to serve in a SELRES unit of the component in which appointed.  To be eligible for the OAB, individuals must:  agree to accept an appointment as an officer in the ARNG or USAR and to serve in a designated critical AOC/MOS in a SELRES unit for a period of not less than 6 years from date of appointment; possess an AOC/MOS designated by the Secretary of the Army for bonus entitlement or agree to accomplish the necessary training prescribed by the Secretary of the Army to achieve the designated critical AOC/MOS and fill a critical skill in the SELRES; not currently be receiving financial assistance under Title 10, USC, chapters 1608, 1609, 1611, 2107, or 2107a, or special pay under Title 37 USC, section 302g, and will not receive such assistance during the period of this agreement; and successfully complete an officer basic course in their designated AOC/MOS within 36 months of the date of appointment.

19.  Title 37, USC, section 308j (Special Pay:  Affiliation Bonus for Officers in the SELRES), states the Secretary concerned may pay an accession bonus to an eligible person who enters into an agreement to accept an appointment as an officer in the Armed Forces and to serve in the SELRES of the Ready Reserve in a skill designated (critical skill AOC/MOS) for a period specified in the agreement (OAB Addendum).  An agreement entered into with the Secretary concerned shall require the person entering into that agreement to serve in the SELRES for a specified period.  The period specified in the agreement shall be any period of not less than 3 years that the Secretary concerned determines appropriate to meet the needs of the Reserve Component in which the service is to be performed.  A person may not receive an affiliation bonus or accession bonus under this section and financial assistance under Title 10, chapter 1608, 1609, or 1611, or under section 302g of this title, for the same period of service.  A person who enters into an agreement under this section and receives all or part of the bonus under the agreement, but who does not accept a commission or an appointment as an officer or does not commence to participate or does not satisfactorily participate in the SELRES for the total period of service specified in the agreement, shall be subject to the repayment provisions of section 303a(e) of this title.

20.  Title 10, USC, chapter 1609, section 16301 (Education Loan Repayment Program:  Members of SELRES), outlines the various types of student educational loans the Secretary of Defense may repay.  Repayment of any such loan shall be made on the basis of each complete year of service performed by the borrower.  The Secretary of Defense may repay loans in the case of any person for service performed as a member of the SELRES of the Ready Reserve of an Armed Force in a Reserve Component and in an officer program or military specialty specified by the Secretary of Defense.  The Secretary may repay such a loan only if the person to whom the loan was made performed such service after the loan was made.

21.  DOD 7000.14-R (Financial Management Regulation (FMR)), volume 7A, chapter 56 (SELRES Accession, Affiliation, Enlistment, and Reenlistment Bonuses), states an accession bonus may be paid to an officer who enters into an agreement with the Secretary concerned to accept an appointment as an officer in the Armed Forces and to serve in the SELRES of the Ready Reserve in a designated skill for the period specified in the agreement.  An agreement entered into with the Secretary concerned under this paragraph will require the person entering into that agreement to serve in the SELRES for a specified period.  The period specified in the agreement will be any period of not less than 3 years that the Secretary concerned determines appropriate to meet the needs of the Reserve Component in which the service is to be performed.  Upon acceptance of a written agreement by the Secretary concerned, the total amount of the bonus payable under the agreement becomes fixed.  A person may not receive an affiliation bonus or accession bonus and financial assistance under Title 37, USC, section 302g, or Title 10, USC, chapter 1608, 1609, or 1611 for the same period of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to receive an OAB at the time of her commissioning.  Therefore, it would be appropriate to grant a waiver of recoupment of OAB funds already received.  However, as stated in the Army G-1 advisory opinion, she transferred from the ARNG to the USAR after serving only 4 years, 11 months, and 14 days of the 6-year service obligation to the ARNG required to receive the OAB.  Therefore, her records should be corrected and the final payment of her OAB installment should be prorated by the Defense Finance and Accounting Service (DFAS) to account for the unserved portion of service.

2.  She would have had to have signed an SLRP addendum at the time of her enlistment on 3 June 2005 to be eligible for the SLRP and this addendum would have to have been included as part of her enlistment agreement.  However, the SRIP policy guidance in effect at the time of her enlistment only offered the SLRP bonus for NPS personnel enlisting in critical MOS's and ARNG Soldiers reenlisting or extending in the ARNG.  Her MOS was not included among the MOS's qualifying for an SLRP bonus at that time.  Therefore, she did not meet the criteria for the SLRP bonus at the time of her enlistment.  Nevertheless, she was later erroneously offered and received payment for an SLRP in violation of applicable statutes and policy.  As such, her request to cancel recoupment and issue an SLRP addendum would be in direct contravention with USC and the FMR to allow an individual to receive an OAB and the SLRP for the same period of service.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

* showing she properly executed an OAB addendum on 8 August 2007
* showing recoupment of previously-issued OAB funds was waived
* prorating the final installment of her OAB installment to account for the unserved portion of her service

2.  The Board further determined the evidence presented is 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 issuing her an SLRP addendum and waiving recoupment actions for previously-paid SLRP funds.




      _______ _  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.

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