IN THE CASE OF:	

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20130013381 


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 the second installment ($10,000) of a $20,000 Critical Skills Retention Bonus (CSRB) and payment of the $10,000.

2.  The applicant states:

	a.  On 6 January 2012, he was denied the second installment of the CSRB that he entered into in 2008.  The reason stated was he was serving in area of concentration (AOC) 153D (UH-60 Black Hawk Pilot) at the time of the agreement so that must be considered the effective CSRB AOC.  It also stated he requested a move out of AOC 153D effective 1 October 2009, and since the move was at his request, the contract must be terminated.

	b.  However, both military occupational specialties (MOS) 153D and 152H (AH-64D Attack Helicopter Pilot) were listed on his CRSB written agreement as he held both.  He was transferred to MOS 153D to support a unit mobilization to Iraq.  Upon completion of the mobilization, he was transferred back to a 152H position.  The orders stated the transfer was due to "individual's request" but were amended to show the actual reason was due to "mobilization of individual."  

	c.  He submitted a request for payment of the bonus as an exception to policy (ETP) from the Deputy Chief of Staff, South Carolina Army National Guard (SCARNG).  There should not have been a need for the ETP as the implementation he was enclosing stated the bonus would be terminated for reasons of "movement to a noncritical AOC, unless the move was due to normal career progression (promotion) or was required by the needs of the ARNG."  In his case, he was not moved to a noncritical AOC, rather he was moved to another critical AOC for the purpose of supporting the ARNG on a deployment to Iraq.  Otherwise, he could have stayed in the 152H position, not deployed, and been paid the second installment without issue for doing less.

3.  The applicant provides three memoranda, four orders, a DA Form 2823 (Sworn Statement), and a blank CSRB written agreement. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior Reserve commissioned service, the applicant was appointed as a warrant officer one (WO1) in the SCARNG on 31 March 2005.  In January 2006, he was assigned to the 2nd Battalion (BN), 149th Aviation Regiment (AV REG).

2.  On 1 February 2006, he entered active duty.  He attended and successfully completed the WO Basic Course (WOBC) from 1 February 2006 to 12 July 2007 at Fort Rucker, AL.

3.  Item 5 (Specialty/MOSC) of the DA Form 1059 (Service School Academic Evaluation Report (AER)) he received upon completion of the Aviation Warrant Officer Basic Course shows his MOS as 152H.  Item 14 (Comments) of this AER contains the entry "Additionally, officer successfully completed the AH-64D aircraft qualification course."

4.  On 13 July 2007, he was promoted to the rank of CW2. 

5.  Orders 207-800, dated 26 July 2007, issued by the State of South Carolina Military Department, SCARNG, showed his MOS was converted to 152H effective 12 July 2007.

6.  On 30 August 2007, he was honorably released from active duty to the control of his ARNG unit.  Item 11 (Primary Specialty) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows his MOS as 153D.

7.  Orders 256-804, dated 13 September 2007, issued by the State of South Carolina Military Department, SCARNG, changed his MOS to 153D effective 13 July 2007.

8.  He provides a memorandum, dated 1 February 2008, issued by the National Guard Bureau (NGB), subject:  ARNG Implementation Guidance for the ARNG CRSB.  This memorandum stated:

	a.  The purpose of the Selected Reserve CSRB was to retain Soldiers who were currently assigned to either a Modified Table of Organization and Equipment (MTOE) unit or "deployable" Table of Distribution and Allowances (TDA) unit in a designated critical skill (CS) in order to support the ARNG in meeting critical manpower shortages.  

	b.  The CSRB was authorized for officers and WOs who agreed to continue to serve in MTOE or deployable TDA unit in a designated CS for a 3-year period.  The list attached to the memorandum showed both AOC 153D and 152H were on the CS list.

	c.  Military Technician (Mil Tech) and Active Guard Reserve (AGR) officers are only eligible for the CSRB if deployed in support of the Global War on Terrorism (GWOT) in the theatres of Iraq, Afghanistan, or Kuwait.

	d.  Termination with recoupment--if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the Soldier’s written CSRB agreement, the Soldier will not be eligible to receive any further incentive payments except those for service performed before the termination date.

	e.  Unless granted relief, the Soldier must refund a prorated amount if the termination is for movement to a noncritical AOC unless the move is due to normal career progression (promotion) or is required by the needs of the ARNG.

9.  On 5 May 2008, he was ordered to active duty in support of Operation Iraqi Freedom (OIF) as a member his ARNG unit, the 2nd BN, 149th AV REG in MOS 153D.

10.  It appears that on 14 September 2008 he signed a CSRB written agreement wherein he agreed to serve in the ARNG for an additional 3 years for a $20,000 CSRB.  The bonus was to be paid in two 50 percent (%) installments; the first 50% on the effective date of the CSRB addendum and the second and final 50% on the 3 year anniversary of the effective date of the contract.  His AOC/MOS listed on the CSRB written agreement showed both 153D and 152H.  This CSRB written agreement is not available for review with this case.

11.  On 31 May 2009, he was honorably released from active duty.  Item 11 of the DD Form 214 he was issued shows his MOS as 153D and item 18 (Remarks) showed he served in Iraq from 25 August 2008 to 18 May 2009.

12.  Orders 141-863, dated 21 May 2009, issued by the Office of the Adjutant General, SCARNG, released him from assignment to the 149th AV REG and transferred him to Headquarters and Headquarters Company (HHC), 1st Attack Reconnaissance BN (ARB), 159th AV REG in AOC/MOS 152H effective 1 October 2009.  These orders stated the reason as "individual's request." 

13.  On 23 June 2009, he entered active duty in an AGR status.  He attended and successfully completed the WO Advanced Course (WOAC) from 19 October to 1 November 2009 and the Tactical Operations (TACOPS) Officer Course from 25 April to 29 May 2010 at Fort Rucker.

14.  On 16 August 2010, he received an Officer Evaluation Report (OER) which covered the rated period from 13 July 2009 through 12 July 2010, while he was serving in an AGR status assigned to HHC, 1st ARB, 159th AV REG.  He was serving as the TACOPS Officer in duty position 152H.

15.  On 30 April 2011, he was released from active duty in an AGR status for the purpose of mobilization/deployment in support of Operation New Dawn in another active status.  He completed 1 year, 10 months, and 8 days of AGR service during this period of active duty service.

16.  On 1 May 2011, he entered active duty as a member of his ARNG unit in MOS 152H.  On 24 May 2012, he was honorably released from active duty.  The DD Form 214 he was issued shows he served in Iraq from 1 September to 12 December 2011 and in Kuwait from 13 December 2011 to 19 April 2012.

17.  The applicant provides a memorandum, dated 4 November 2011, from the Deputy Chief of Staff, SCARNG, to the NGB, wherein he requested the applicant be granted an ETP for [receipt of the second installment] of the CSRB and stated both AOCs were entered on line 11 (of the CSRB written agreement) and the applicant had satisfied all requirements outlined in the contract.  

18.  The applicant provides a memorandum, dated 6 January 2012, from the NGB wherein it stated, in part:

	a.  The ETP to retain the $20,000 CSRB offered at the time of the agreement on 14 September 2008 was denied.  The [CSRB] will terminate the incentive without recoupment effective 1 October 2009.

	b.  The applicant entered into the agreement for the critical AOC 153D.  He entered two AOCs, 153D and 152H, on the agreement; however, he was serving in AOC 153D at the time so it must be considered the effective CSRB AOC.  He requested to move out of AOC effective 1 October 2009 and since the move was at his request the contract was terminated.

19.  He also provides Orders 199-868, dated 17 July 2012, issued by the Office of the Adjutant General, SCARNG, wherein they amended Orders 141-863, dated 21 May 2009, to show the reason for the transfer was "mobilization of individual" vice "individual's request."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be entitled to the $10,000 second installment of the CSRB because he transferred to another unit and another critical AOC for mobilization/deployment and not at his request.

2.  Notwithstanding his contention or the orders issued by the SCARNG showing the reason for his transfer to the 159th AV REG in AOC 152H in October 2009 was for the purpose of mobilization, the evidence of record confirms he entered active duty on 23 June 2009 in an AGR status and he was not deployed during that period of service.

3.  The decision to serve in an AGR status is made by the individual and is not directed by the unit.  Per the CSRB memorandum, AGR officers were not entitled to the CSRB unless they were deployed in support of GWOT.  Therefore, once he converted to an AGR status on 23 June 2009, he effectively breached his CSRB written agreement and was no longer entitled to the CSRB, whether he was serving in a critical AOC or not.  

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)                                         AR20130013381





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ABCMR Record of Proceedings (cont)                                         AR20130013381



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