BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130014644 


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 military records by showing he was authorized a bonus control number for his Reenlistment/Extension Bonus (REB) contract and authorization for his student loan repayment program (SLRP) during his enlistment with the California Army National Guard (CAARNG).

2.  The applicant states he joined the CAARNG in 2004.  In March 2005, he received a prior service enlistment bonus (PSEB) of $15,000.00 and an SLRP of $1,021.92, in accordance with his enlistment contract.  In 2008, he transferred to the Active Army.  In 2012, he was notified by the Incentives Task Force (ITF) that the Government had audited contracts for a certain period of time during which bonus incentives were included in the contracts but did not contain corresponding bonus control numbers.  This was due to rampant fraud and negligence by trusted CAARNG members who were distributing bonuses without authorization.  This fraud is still being investigated.

3.  The applicant contends that any improper payment was not the result of any wrongdoing on his part.  He acted in good faith and signed the enlistment contract.  He was never counseled about any circumstances that would require him to pay back the bonus.  He trusted his chain of command because they were the subject matter experts.  He was told that a bonus control number would be assigned after the contracts were signed.



4.  The applicant further states that the SLRP memorandum clearly stated to his lender that he was eligible to participate in the SLRP; however, the ITF office did not validate the authorization because he did not sign the appropriate forms.  

5.  The applicant argues that he and his family live on a tight budget that requires his entire paycheck to pay their living expenses.  As a result, having to repay his incentive payments places a financial hardship on him and his family.

6.  The applicant provides copies of:

* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated     8 January 2005
* National Guard Bureau (NGB) Form 600-7-3-R-E (Reenlistment/Extension Bonus Addendum), dated 8 January 2005
* Letter, CAARNG, dated 1 Febuary 2005, to applicant's loan holder
* DD Form 368 (Request for Conditional Release), approved 17 May 2008
* Memorandum, U.S Army Human Resources Command (HRC), dated 
24 July 2008
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) dated 26 August 2008
* Memorandum for Record, Re-audit of Reenlistment Bonus, dated            30 January 2012
* Memorandum for Record, Re-audit of Student Loan Repayment, dated            30 January 2012
* Memorandum, NGB, Incentive Notice of Indebtedness, dated                   12 December 2012
* Email communication between CAARNG and the applicant, dated            30 January 2013
* Memorandum for Record, Assumption of Command, dated 19 February 2013
* Memorandum for Record, Letter of Hardship in Repayment, dated 
1 March 2013
* Defense Finance and Accounting Service (DFAS) Form 702 (DFAS Military Leave and Earnings Statement) for July 2013
* Information Sheet, Major Personal Financial Break Down, undated
* Memorandum from the Commandant, Noncommissioned Officer (NCO) Academy, Fort Hood, TX, dated 31 July 2013



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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.  On 12 March 2004, the applicant enlisted in the CAARNG for a period of 1 year, and as a Reserve of the Army.  On 8 January 2005, he extended his enlistment in the CAARNG for a period of 6 years.  His expiration term of service (ETS) was established as 10 March 2011.

3.  On 8 January 2005, the applicant signed an NGB Form 600-7-3-R-E.  This document indicates that he had agreed to a 6-year reenlistment/extension with a bonus of $15,000.00.  Payment was to be in a lump sum on 6 March 2005, which was 1 day after his original ETS.  Paragraph 11 of this contract states that recoupment would be required should he separate from the ARNG and enter active duty.  The document does not contain a bonus control number but does indicate that a service representative verified the document.

4.  A letter, dated 1 February 2005, written by the Assistant Incentive Manager, CAARNG, states the applicant was eligible to participate in the ARNG SLRP.  For each year of satisfactory service, the ARNG will repay 15 percent, or up to $1,500.00 of the total original amount borrowed.

5.  A DD Form 368 indicates that on 13 February 2008 the applicant requested a conditional release for the purpose of processing into Active Duty.  This request was approved on 17 May 2008.

6.  A DD Form 4, dated 26 August 2008, indicates the applicant enlisted in the Regular Army for a period of 3 years in the rank of sergeant, pay grade E-5.  

7.  A Memorandum for Record, dated 30 January 2012, from the ITF informed the applicant that the recoupment of his reenlistment bonus was reduced from $15,000.00 to $5,833.33.  This reduction was based on documentation provided by the applicant which substantiated the incentive.  He had extended on 
8 January 2005 for 6 years with a $15,000.00 bonus.  He was discharged 
11 September 2008 for the purpose of serving on Active Duty.  This required termination of his incentive bonus and a prorated recoupment set at $208.33 per month for 28 months.

8.  A Memorandum for Record, dated 30 January 2012, from the ITF informed the applicant that he had not provided sufficient documentation to substantiate his incentive for SLRP.  He did not provide a copy of the missing SLRP addendum.  An SLRP bonus control number was not requested for the applicant until 14 October 2005.  No exception to Selected Reserve Incentive Program (SRIP) Policy requiring the prior 3 years to be served in the ARNG was on file.  No bonus addendum has been provided.  No proof of qualifying loans has been provided.

9.  A memorandum from the United States Property and Fiscal Office (USPFO) for California, dated 12 December 2012, informed the applicant that he had been found to be indebted to the United States Government in the amount of $1,021.92 for his SLRP incentive.  This debt was being referred to DFAS or his current Military Pay office for collection.

10.  On 1 March 2013, the applicant submitted a letter of hardship to USPFO, wherein he states he is still appealing his claim and can afford to repay approximately $50.00 per month.  This letter is signed by both the applicant and the Deputy Commandant, NCO Academy, Fort Hood, TX.

11.  On 31 July 2013, the Commandant, NCO Academy, Fort Hood, TX, wrote a letter of support on behalf of the applicant requesting that this Board consider relieving him of the recoupment for his bonuses for reenlistment and SLRP.  The author argues that the applicant was not a fault and should not be held liable for repayment.  This situation has put a hardship on the applicant and will have an impact on the well being of his family and personal readiness.

12.  In the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer), Washington DC.  The opinion states the applicant was offered and contracted for the REB in the amount of $15,000.00 and for the SLRP.  As with many enlistments/extensions conducted by the CAARNG during this particular time, a myriad of administrative errors, no fault of the applicant, exist in his extension packet.  The CAARNG has been under investigation and audit of their incentive program to identify and rectify the errors, acts of omission, and fraudulent/criminal activities that had taken place.  During an audit, the applicant's extension packet was found to be missing documentation for both his REB and SLRP.  He provided the ITF with copies of paperwork that aided them to fill in some of the missing documents.  The ITF determined that the applicant's receipt of the REB was valid but a portion needed to be recouped due to his transfer into the Regular Army prior to completing the 6-year extension.  The ITF did not find sufficient documentation to validate his SLRP.

13.  The advisory opinion further stated that effective 8 April 2005, per the Under Secretary of Defense, Personnel and Readiness, a Soldier transferring to another service component who does not receive a bonus from the gaining component, will have their Reserve Component bonus terminated without recoupment of the portion already paid, to include lump sum payments.  Though the applicant's extension did not have an SLRP addendum, the applicant was able to provide ample proof that he was offered the SLRP.  A total of $1,021.92 was applied to payment of student loans prior to his transfer to the Regular Army.  Accordingly, the advisory opinion recommended the applicant be granted full administrative relief and that no portions of his REB or SLRP already paid for his extension in the CAARNG on 8 January 2005 be recouped.

14.  On 29 August 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  The applicant indicated his concurrence on 4 September 2013.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing he was authorized a bonus control number for his REB contract and authorization for his SLRP during his enlistment with the CAARNG.

2.  The available evidence shows that the applicant had extended his contract in the CAARNG for a period of 6 years; however, the contract failed to contain a bonus control number.  Furthermore, he had been offered the SLRP but the addendum was missing from his records.  These conditions, coupled with his decision to transfer to the Regular Army, resulted in recoupment of these bonuses.

3.  A review of the applicant's case clearly shows that the applicant was not at fault for any of the administrative errors that occurred in the processing of his contracts.  Accordingly, his records should be corrected to show he was properly and timely authorized both the REB and SLRP.  Furthermore, neither of these bonuses should be recouped as a result of his transfer to the Regular Army.



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 State Army National Guard of the individual concerned be corrected by:

	a.  showing he properly and timely completed his reenlistment/extension contract, to include both addenda for the reenlistment/extension bonus and the Student Loan Repayment Program; and

	b.  terminating any ongoing recoupment action and refunding, out of ARNG funds, any recoupment of these monies that may have already occurred, that is related to this correction of records.




      _______ _   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)                                         AR20130014644





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ABCMR Record of Proceedings (cont)                                         AR20130014644



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