IN THE CASE OF:	  

		BOARD DATE:	    8 October 2013

		DOCKET NUMBER:  AR20130012617


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 cancellation of the recoupment action pertaining to the reenlistment and officer accession bonuses he contracted for as a member of the California Army National Guard (CAARNG).  Additionally, he requests repayment of all payments collected from this recoupment action.  Lastly, he requests the reproduction of his bonus addenda outlining his eligibility for these incentives, and the filing of those documents in his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

* after the CAARNG's incentive bonus scandal was publicized and the misconduct of Master Sergeant (MSG) Txxx Jxxxx was revealed, the CAARNG established the Incentive Task Force (ITF) to investigate all bonuses paid by the State
* during his 12 continuous years of service in the CAARNG, he received a total of three (3) incentive bonuses (an $8,000 enlistment bonus in 2001, a $15,000 reenlistment bonus in 2007, and a $10,000 officer accession bonus (OAB) in 2008)
* during their review of past-paid bonuses, the ITF determined that they did not have sufficient records pertaining to his reenlistment bonus or OAB to determine if he was eligible to receive them
* after providing him time to provide his personal copies of these bonus documents (which he could not locate), they determined he was ineligible for these bonuses (due to their lack of sufficient records to prove otherwise)
* after this judgment, the U.S. Property and Fiscal Office for California (USPFO) provided him with a Letter of Indebtedness, in the amount of $25,000 
* beginning on 1 July 2013, the USPFO will recoup approximately $712.79 of his pay per pay period ($1,425.58 per month)
* based on his own research of incentive regulations that were in place at the time he received his bonus payments, he still believes he was fully eligible for those payments
* furthermore, even if he was not eligible for these incentives, he requests entitlement to these bonuses due to the fact he was advised by the subject matter expert (MSG Jxxxx) that he was eligible
* based on his eligibility determination at the time, he made significant financial and life-altering decisions 
* while not the most important factor, financial benefits were included in his decision to serve his country
* these incentive payments influenced his financial decisions on his wedding, the purchasing of his first home, having his first child, assisting his now-deceased mother during her stage-four colon cancer treatments, and much more
* these incentive payments also influenced his decision to remain a member of the CAARNG after his enlistment contract ended, to accept a commission as an officer and deploy to Iraq
* each of these actions had a financial and life-altering burden attached and cannot be withdrawn or revoked after-the-fact
* his choices in these matters were influenced by his reasonable assumption that the incentive payments provided by the CAARNG were legitimate and permanent
* the error in his records (either simply through a lack of required paperwork or through an error in procedure by the CAARNG’s Incentives Manager) is not his fault and to require repayment years after receiving the payments would result in financial hardship to his family
* he has been activated under Title 10 orders since 1 April 2013 
* he attempted to contact his legal department for assistance with receiving these documents several times since November 2012; however, his efforts have been unsuccessful

3.  The applicant provides:

* a memorandum from Headquarters, CAARNG, dated 18 October 2012, subject: Request for Documentation Supporting Your Incentive(s)
* a memorandum from the USPFO, dated 28 March 2013, subject: Incentive Notice of Indebtedness (NOI), reference TL#20130524RC
* a second, separate memorandum from the USPFO, dated 28 March 2013, subject: Incentive Notice of Indebtedness (NOI), reference TL#20130524RC
* a Leave and Earnings Statement (LES), dated 1 July 2013
* an LES, dated 26 June 2013
* Orders 087-372, issued by the CAARNG on 28 March 2013

4.  In a letter dated 9 July 2013, the applicant provided the following additional documents:

   a. Documents related to the recoupment of his enlistment bonus, reenlistment bonus, and OAB.

* a memorandum from the CAARNG, dated 9 July 2013, subject: Request for Suspension of Debt Collection
* a memorandum from Headquarters, CAARNG, dated 18 October 2012, subject: Request for Documentation Supporting Your Incentive(s) (duplicate)
* his response to both NOIs, dated 25 June 2013
* LESs, dated 1 July 2013 and 26 June 2013 (duplicate)
* Orders 087-372, issued by the CAARNG on 28 March 2013 (duplicate)
* DD Form 139 (Pay Adjustment Authorization), dated 21 February 2013
* 3 separate ITF Bonus Audit Forms, each printed on 1 October 2012
* an extract listing of bonus payments
* 2 extract listings of iMarc (Information Management and Reporting Center) transactions
* a copy of an email between the applicant and MSG Txxx Jxxxx, dated 21 October 2008

	b.  Documents related to his enlistment, reenlistment, and accessioning as a commissioned officer in the CAARNG.

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* National Guard Bureau (NGB) Form 21 (Annex A – DD Form 4 – Enlistment/Reenlistment Agreement – ARNG)
* NGB Form 600-7-1-R-E (Annex E to DD Form 4 – Enlistment Bonus Addendum – ARNG of the United States (ARNGUS))
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 November 2001
* Orders 100-432 and amending Orders Number 153-900, issued by the CAARNG, dated 9 April 2004 and 2 June 2005, respectively 
* DD Form 214, for the period ending 21 May 2005
* Selected Reserve Incentive Program (SRIP) data sheet pertaining to the applicant's reenlistment bonus, dated 24 August 2006
* NGB Form 62-E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNGUS)
* Orders 327-1026, issued by the CAARNG on 23 November 2005
* NGB Form 337 (Oaths of Office), dated 18 August 2007
* an SRIP data sheet pertaining to the applicant's OAB, dated 9 August 2007
* Orders 220-1093, issued by the CAARNG on 8 August 2007
* a memorandum from the U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 2 July 2008, subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code (USC), Sections 12201 and 12203
* Orders 224-405, issued by the CAARNG on 11 August 2008
* DD Form 214, for the period ending 5 November 2009
* ARNG Retirement Points History Statement

CONSIDERATION OF EVIDENCE:

1.  On 21 June 2001, the applicant enlisted in the CAARNG.  In connection with this enlistment, he contracted for a non-prior service enlistment bonus in the amount of $8,000.00.  

2.  He entered active duty, completed his initial entry training, was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist), and was released from active duty to the control of the CAARNG.

3.  On 18 November 2005, he completed an NGB Form 62-E, wherein he requested appointment as a commissioned officer of the ARNG.

4.  On 20 June 2007, he executed a 6-year reenlistment in the CAARNG.  In connection with this reenlistment, he contracted for a 6-year reenlistment bonus in the amount of $15,000.00.  Neither his enlistment contract nor his bonus addendum is available for review.

5.  On 1 August 2007, a Federal Recognition Examining Board (FREB) convened to consider his application for appointment as a commissioned officer of the ARNG.  The FREB found him qualified in all areas and recommended he be granted Federal recognition.
6.  On 17 August 2007, he was honorably discharged from the CAARNG.

7.  On 18 August 2007, he was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (2LT), in the armor branch.  In connection with this appointment, he received a Critical Unit OAB in the amount of $10,000.00.  His bonus addendum is not available for review.

8.  On 18 February 2009, he was promoted to the rank of first lieutenant (1LT).

9.  On 6 April 2012, he was promoted to the rank of captain (CPT).

10.  On 18 October 2012, by memorandum, the CAARNG ITF notified him that they had audited his bonus incentive payments and noted a discrepancy.  The ITF found the supporting documentation for his incentive payments was missing from his personnel file.  As such, it required him to provide copies of the authorization documents or face recoupment action in the amount of $25,000.00.

11.  On 28 March 2013, the USPFO for California notified him, by two separate memoranda, that he was indebted to the U.S. Government in the amount of $25,000 dollars, as a result of the recoupment of his 6-year reenlistment bonus ($15,000.00) and his Critical Unit OAB ($10,000.00).  In these memoranda, he was presented with the following rights:

* the right to receive a copy of the government records related to his debt
* the right to appeal the validity, amount, or liability of the debt
* the right to request a correction of his records through the Army Board for Correction of Military Records (ABCMR)
* the right, under Title 32, U.S. Code (USC), section (§) 716                      (32 USC § 716), to seek a waiver of the debt if there is no evidence of fraud, misrepresentation, fault, or lack of good faith
* the right, under Title 10, USC, § 4837 (10 USC § 4837), to seek remission of the debt, if the debt was incurred while on active duty or on active status and if otherwise appropriate

12.  On 1 April 2013, the applicant was mobilized and ordered to active duty in support of Operation Enduring Freedom.  He is currently deployed and serving in Afghanistan.

13.  His record is void of documentation that shows the action he took to address the bonus issues raised by the CAARNG ITF.

14.  He provides numerous documents that address his entitlement to, and/or receipt of, incentive payments, including the following:
   a. 2 separate Response to Incentives NOI statements, submitted on 25 June 2013, wherein he informed the USPFO he had not received the NOIs until he returned home on leave prior to deploying overseas to Afghanistan.  He informed the USPFO he had filed a request for relief with the ABCMR, and he requested his recoupment action be suspended pending the outcome of his ABCMR request.

   b. An ITF Bonus Audit Form dated 1 October 2012, pertaining to his reenlistment bonus (REB) incentive payment in the amount of $15,000.00, which contains the following auditor and senior (Sr.) reviewer comments:

		(1)  (Auditor) Summary Memo:  Service Member (SM) is missing reenlistment bonus addendum.  SM contracted for 6x0 REB in MOS 09S (Commissioned Officer Candidate) into Unit Identification Code (UIC) PV1T0 for $15k on 20070620.  SM is not eligible to contract or eligible for payment.  SM is not eligible to contract because there is no addendum and 09S is not an eligible MOS to contract for reenlistment incentive.  SM became Duty-MOS qualified (DMOSQ) on 20011122.  SM was paid $15k on 20070620 while attached to UIC 8AY06, 1st Cadet Company (Co).  SM is subject to recoupment of the full amount of the incentive.  I recommend settlement category 3A, SM may submit reenlistment bonus addendum; however, the MOS 09S is not authorized for incentives.

		(2)  (Sr. Reviewer) Summary Memo:  SM does not have a reenlistment bonus addendum in iPerms (Interactive Personnel Records Management System).  SM appears to have a bonus control number (BCN) R06080084CA for 15k reenlistment in MOS 09S UIC PV1T0 for 20070620.  09S is an Officer Candidate School (OCS) Cadet and not eligible for incentive.  During ARNG SRIP 07-05, only REB incentives were for critical skill or critical UIC.  SM was not authorized to contract for this incentive.  SM is category 3A (correctable).  SM must submit written agreement to re-determine eligibility; however, due to being 09S SM would not be eligible for payment regardless.  SM was paid $15,000.00 lump sum on 20070622.  SM is subject to full recoupment.

   c. An ITF Bonus Audit Form dated 1 October 2012, pertaining to his OAB incentive payment in the amount of $10,000.00, which contains the following auditor and senior (Sr.) reviewer comments:

		(1)  (Auditor) Summary Memo:  SM received a commission as a 2LT on 20070818.  SM is missing accession addendum.  iMarc shows a start date of 20070818 with BCN O07080033CA for 10k OAB in UIC P7ND0 MOS 19B (Armor).  SM has email traffic with MSG Jxxxx on 2008102 [sic], SM was trying to receive payment in theater to receive bonus tax free, and was trying to complete this prior to deploying for OIF.  SM was paid $5,000 on 20081114 and $5,000 on 20081201.  iMarc shows the BCN request date as 20070809, prior to the SM's appointment date, and the start date as the same day as the SM's appointment date.  SM is subject to recoupment of the full amount paid, $10k.  I recommend settlement category 3a, SM must submit a copy of the addendum for his OAB to determine eligibility.

		(2)  (Sr. Reviewer) Summary Memo:  SM was appointed as a 2LT on 20070818.  SM shows a bonus start date of 20070818 in iMarc with BNC O07080033CA for 10k OAB in UIC P7ND0 MOS 19B.  SM has email traffic with MSG Jxxxx on 20081021 about being a 2LT and wanting to start the process of an OAB prior to leaving for an OIF deployment.  SM wants to get payment in theater to receive tax free money.  SM was paid $5,000 on 20081114 and $5,000 on 20081201.  iMarc shows that the BCN was requested on 20070809 (before appointment); iMarc shows that the bonus start date is the same date as appointment.  I recommend settlement category 3A (correctable).  SM must provide written agreement for OAB to determine eligibility.  SM is subject to recoupment for violating Title 37, USC, section 332, paragraph (d).

15.  On 30 July 2013, in the processing of this case, an advisory opinion was obtained from a member of the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1 (Army G-1), Headquarters, Department of the Army.  Despite acknowledging the numerous legitimate reasons for which the CAARNG and USPFO initiated the recoupment action against the applicant, the official recommended granting relief in this case, citing administrative errors in the processing of the applicant's bonus documents which, ultimately, were outside his control or ability to affect.

16.  ARNG SRIP Policy Number 07-05 (ARNG SRIP Guidance for Fiscal Year (FY) 2007, 16 June 2007 – 31 March 2008 (Policy Number 07-05) (Revised      19 June 2007)), establishes policy to administer ARNG incentives effective       16 June 2007 through 31 March 2008 unless otherwise superseded or suspended.  It provides the following guidance:

   a. Termination with Recoupment:  If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date.  Unless granted relief the member must refund a prorated amount to the Government, if such termination is for any of the following reasons:

		(1)  Fails to participate satisfactorily in required training during the entire period of service agreed to, in accordance with the written agreement, unless the failure to participate satisfactorily was due to reasons beyond the control of the member (i.e., death, injury, illness, or other impairment).

		(2)  Separates from the ARNG for any reason (including enlistment or voluntary order to active duty in the active forces). 

		(3)  Moves to a non-bonus skill or unit, unless the move is due to normal career progression (promotion) or is required by the needs of the ARNG.

		(4)  Fails to extend the contracted term of service for a period of authorized non-availability.

		(5)  Accepts an Active Guard Reserve (AGR) position or a Military Technician (Mil Tech) position where membership in the ARNG is a condition of employment, and member has not served at least six months of the incentive contract term.

		(6)  Serves 1 year or less of an enlisted incentive contract term before becoming a contracted cadet in the Simultaneous Membership Program (SMP), Reserve Officers’ Training Corps (ROTC) or ROTC Control Group.  Termination and recoupment is effective on the college class start date for any Soldier awarded an ROTC scholarship or the effective date of order to the course for SMP participants.

		(7)  A person who enters into an agreement and receives all or part of the bonus under the agreement… but who does not commence to serve in the Selected Reserve or does not satisfactorily participate in the Selected Reserve for the total period of service specified in the agreement, shall repay to the United States the amount of the bonus so paid.

   b. Termination without Recoupment:  A Soldier's eligibility for incentives will terminate without recoupment in the following circumstances:

		(1)  In the event of death, injury, illness, or other impairment not the result of the member's own misconduct.

		(2)  Accepts a commission or appointment as an officer or warrant officer in the ARNG after having served more than one year of the enlisted incentive contract term. 

		(3)  Accepts an AGR position or a MilTech position where membership in the ARNG is a condition of employment, and member has served at least six months of the incentive contract term.
		(4)  Involuntarily separates from the ARNG as a result of unit inactivation, relocation, reorganization, or a DoD-directed reduction in the Selected Reserve force.

		(5)  Serves more than 1 year of an enlisted incentive contract before becoming a contracted cadet in the SMP, ROTC or ROTC Control Group. Termination is effective on the college class start date for any Soldier awarded an ROTC scholarship or the effective date of order to the course for SMP participants.

17.  DOD Financial Management Regulation 7000.14-R, Volume 7A, chapter 2, paragraph 020201 states when the conditions of a written agreement are not fulfilled, and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of the pay or benefit received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for cancellation of the recoupment action pertaining to his reenlistment and officer accession bonuses, repayment of all payments collected from this recoupment action, and the reproduction of his bonus addenda and filing of those documents in his AMHRR was carefully considered.

2.  The evidence of record shows he was appointed as a 2LT in the CAARNG on 18 August 2007, for which he was paid a $10,000.00 incentive payment.  It appears he was qualified for this incentive, despite his record lacking the bonus addendum that shows he properly contracted for it.  Therefore, recoupment of this incentive payment is not justified, and his record should be corrected to show his entitlement to this bonus.  Additionally, he should be reimbursed for any previous collections taken from his pay against this portion of his overall debt.

3.  With respect to his request for the reproduction of his bonus addenda and filing of those documents in his AMHRR, the Board does not create documents.  However, a copy of this Record of Proceedings will be filed in his AMHRR and is sufficient to show his entitlement to the OAB. 

4.  Despite having previously submitted an application for Federal recognition as a commissioned officer of the ARNG, he executed a 6-year reenlistment on       20 June 2007, for which he was paid a reenlistment incentive payment in the amount of $15,000.00.  Since neither his enlistment contract nor his bonus addendum is available for review, it is unclear what critical skill MOS his reenlistment bonus was based on.  According to the CAARNG ITF, he reenlisted into MOS 09S, which was neither a critical skill nor a bonus-eligible MOS for reenlistment. 
5.  In accordance with ARNG SRIP Policy Number 07-05:

* a Soldier who separates from the ARNG for any reason is subject to bonus termination with recoupment
* a Soldier who accepts a commission or appointment as an officer or warrant officer in the ARNG is subject to bonus termination without recoupment, unless the Soldier has not served more than 1 year of the enlisted incentive contract term (emphasis added)

6.  His application for appointment as a commissioned officer in the ARNG was being processed at the time he reenlisted.  Therefore, he knew, or should have known, at the time of his reenlistment that he would not fulfill the terms of his reenlistment contract.  Consequently, he had no entitlement to a reenlistment bonus.  Since he could not fulfill even the minimum amount of service necessary under the "Terminate without Recoupment" rules contained in ARNG SRIP Policy Number 07-05, any incentive payment related to his reenlistment bonus should be recouped.

7.  In the provided advisory opinion, the Army G-1 official provided numerous justifications for the CAARNG's bonus termination and recoupment action.  Notwithstanding the official's recommendation for relief, based on administrative error, the prevailing Army guidance at the time did not entitle him to the reenlistment bonus since he was an officer candidate at the time of his reenlistment.  Accordingly, the recoupment of his reenlistment bonus is proper and he is not entitled to this portion of the requested relief.

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 records of the individual concerned be corrected by showing he was entitled to an OAB in the amount of $10,000.00 and by stopping any recoupment action pertaining to his previously-paid OAB incentive.

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 cancelling the recoupment action pertaining to his reenlistment bonus, or the repayment of any previously recouped monies for this portion of his incentive debt.




      ___________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)                                         AR20120014780



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012617



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1