IN THE CASE OF:	  

		BOARD DATE:  5 December 2013

		DOCKET NUMBER:  AR20130017840 


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 to show entitlement to a Critical Skills Retention Bonus (CSRB) in area of concentration (AOC) 11A (Infantry) [or AOC 53A (Automation Officer)].

2.  The applicant states that, on advice from the retention noncommissioned officer (NCO), he signed a CSRB contract on 27 February 2009, nine days prior to having 6 years of commissioned service in the Army National Guard (ARNG).

	a.  He states that the error relating to the date was due to the Bonus Office at the state level providing incorrect guidance to the Retention NCO.  At the time this was a manual process, but it has since been automated.  He adds the error should have been discovered by the State during the processing of his request.

   b.  Following a knee injury, he was involuntarily branch transferred from the infantry AOC to a signal AOC, which was also a critical skills specialty.

   c.  He states the AOC and date on the CSRB Written Agreement should be corrected because he is being denied the CRSC due to a clerical error.

   d.  He adds that he served the required amount of time specified in the agreement, he served faithfully and upheld the terms of the CRSB, and he has earned the CSRB.

3.  The applicant provides copies of his CSRB agreement with email messages and his request for exception to policy (ETP).
CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the:

* U.S. Marine Corps from 21 January 1987 through 20 January 2002
* Army National Guard of the United States (ARNGUS) from 21 January 2002 through 7 March 2003

2.  On 8 March 2003, the applicant was appointed as a second lieutenant in the ARNGUS and Indiana ARNG (INARNG).  He completed the Infantry Officer Basic Course and was awarded AOC 11A.

3.  He was promoted to captain (CPT)/pay grade O-3 on 16 January 2008.

4.  National Guard Bureau (NGB), Arlington, VA, memorandum, dated 
3 November 2010, shows the applicant's request for award of Functional Area (FA) 53A was approved based upon his previous experience and education.

5.  He was promoted to major (MAJ)/pay grade O-4 in the Signal Corps (SC) in the INARNG on 25 May 2012 and extended Federal recognition of his promotion to MAJ effective 18 October 2012.

6.  A review of the applicant's military personnel records failed to reveal a copy of a CSRB Agreement or Addendum.

7.  In support of his application, the applicant provides the following documents:

   a.  email messages, subject:  CPT Bonus, spanning the period from
1 February to 2 March 2009, between the applicant and INARNG officials discussing the applicant's eligibility for a CSRB.  The applicant indicated that he was eligible for a CSRB and that he would complete 6 years of commissioned service on 8 March 2009; the applicant was advised that he did not have to wait until 8 March 2009 to complete the agreement; he was provided instructions to place his initials in section III (Acknowledgment), item 11, following the entries "AOC" and "3 years"; the Retention NCO indicated he would sign the agreement after the applicant completed the agreement; and the applicant was informed of the approved CSRB on 2 March 2009.

   b.  Officer/Warrant Officer Written Agreement - Army Reserve Components (RC) CSRB, that shows in connection with the applicant's assignment to the Maneuver Training Center (MTC) and his AOC being designated as critical for a CSRB, the applicant acknowledged his eligibility for a CSRB in the amount of $20,000.00 by agreeing to serve in the AOC designated as a critical skill for a period of 3 years. 

    	(1)  Section III, item 11, does not show the CRSB AOC or number of years.  (The applicant placed his initials on the lines following the AOC and number of years.)

    	(2)  The applicant, a service representative, and witnessing officer placed their signatures on the document on 27 February 2009.

	c.  Camp Atterbury Joint MTC, Edinburgh, IN, memorandum, subject:  Request for ETP - CRSB Bonus, dated 14 August 2012, in which the applicant provides background on his request for CSRB.  It shows he indicated that:

* he signed the CSRB in February 2009
* he received the first payment of $10,000.00 two months later
* he sustained a severe knee injury in 2009 that inhibited his effectiveness as an infantry officer
* the Strength Management Officer recommended transfer to the SC
* he did not request the assignments, they were command directed:
* he moved to a duty position he was not qualified for in August 2010
* he moved to a 53A duty position in February 2011
* he did not receive the second CSRB payment of $10,000.00 in 2012
* he was informed the correct CSRB documentation was not on file
* he provided his copy of the CSRB in May 2012

   d.  Camp Atterbury Joint MTC, Edinburgh, IN, memorandum, subject:  Request for ETP - CRSB Bonus, dated 14 August 2012, in which the commanding general restates the information the applicant provided in his request for an ETP (above).

	e.  NGB, Arlington, VA, memorandum, dated 10 July 2013, subject:  Request for ETP for Officer CSRB, shows the applicant's request to retain the $20,000.00 offered at the time of contract on 27 February 2009 was denied by the ARNG Deputy G-1.  It also shows that the Incentive Manager would terminate the incentive with recoupment.  General information and the specifics of the applicant's case were summarized, as follows:

* eligible applicants were offered the CSRB under the Selected Reserve Incentive Program CSRB Guidance for Fiscal Year (FY) 2008 (effective 1 February 2008 through 1 March 2009)
* contracted AOC:  11A
* current AOC:  53A
* the applicant is not serving in the AOC for which contracted, which violates ARNG CSRB policy, dated 1 February 2008
* AOC 53A is a designated AOC in the CSRB policy (1 February 2008)
* he was awarded FA 53A on 3 November 2010
* the applicant did not meet the eligibility requirements in accordance with the Army regulatory guidance
* his written agreement does not show the contracted critical AOC
	
	f.  Joint Forces Headquarters, Indiana National Guard, Indianapolis, IN, memorandum, dated 1 August 2013, subject:  Notification of ETP Result, that shows the applicant's request for ETP was reviewed by the NGB and denied.  He was informed that additional correspondence pertaining to the termination and recoupment amount would be forwarded under separate correspondence.

8.  Office of the Under Secretary of Defense, Washington, DC, memorandum, dated 12 December 2007, subject:  CPT CSRB, approved the Army's request to pay Reserve CPT's who execute a written agreement to serve in an active status for not less than 3 years in certain AOC fields designated as critical for CSRB purposes.  The Army was authorized to target eligible officers using programmed funding for FY 2008 and bonuses paid in FY's 2009 and 2010 would be subject to funding availability.

9.  On 1 February 2008, NGB published implementation guidance for the ARNG CSRB.  The guidance stated that, among other requirements, eligible officers must have completed any current contractual obligation or bonus contract obligation incurred as a result of participation in the officer affiliation bonus and must have been fully qualified and serving in a designated critical skill AOC in a qualifying unit.  A list of the CSRB program's critical AOC's included AOC 11A and AOC 53A at a rate of $20,000.00.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the CSRB Program under review was effective 1 February 2008.

2.  The applicant was commissioned in the INARNG and awarded AOC 11A in 2003.  He was promoted to CPT in 2008 and he completed 6 years of ARNG commissioned service on 8 March 2009.

3.  The applicant contracted for a CSRB on 27 February 2009.  Although the written agreement contained administrative errors in that the document was signed nine days prior to the applicant completing 6 years of commissioned service and it did not show the AOC or number of years, these are not the overriding issues in this case.

   a.  It is reasonable to conclude that the applicant contracted for a CSRB in critical skill 11A, the AOC that he held at the time. 

   b.  It is also reasonable to conclude that the applicant would have contracted for the minimum number of years (i.e., 3 years), effective 8 March 2009 had he been properly counseled.

4.  The applicant suffered a severe injury in 2009 that inhibited his effectiveness as an infantry officer.  The evidence of record also shows the applicant's request (emphasis added) for award of FA 53A was approved on 3 November 2010.  Thus, the applicant did not fulfill the terms of the CSRB contract because he did not serve in the critical skill AOC (i.e., 11A) for a period of 3 years.

5.  The fact that the applicant was subsequently awarded and served in critical skill AOC 53A is acknowledged.  However, there is insufficient evidence to support correction of his records to show entitlement to a $20,000.00 CSRB based on AOC 53A on 8 March 2009.

6.  Nonetheless, the evidence of record shows the applicant satisfactorily served in the ARNGUS and INARNG in AOC 11A for more than half of the CSRB contract period.

7.  Therefore, in view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show entitlement to the first payment of $10,000.00 of the CSRB (without recoupment).

8.  However, the evidence of record shows the applicant voluntarily reclassified out of the CSRB AOC due to an injury that inhibited his effectiveness as an infantry officer.  He moved to a duty position he was not qualified for and then, six months later, he moved to an AOC 53A position (emphasis added).  
Thus, he is not entitled to the remaining portion (final installment) of the CSRB.

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:

	a.  showing an ETP was approved to allow his entitlement to the first installment (50 percent) of his $20,000.00 CSRB for a CS-bonus AOC; and

	b.  paying him the CSRB specified for CS-bonus AOC 11A from ARNG funds and/or, if payment has already been made, cancelling the recoupment action for said payment.

2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment to the applicant of any amount that may have been recouped from the initial payment of his CSRB, or cancel the recoupment action for said payment, as applicable.

3.  The Board further determined that the evidence presented was 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 payment of the second (final) installment of the $20,000.00 CSRB (i.e., the additional $10,000.00).




      _______ _  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)                                         AR20130017840



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