BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019169 


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, in effect, correction of his records to show he completed his Selected Reserve (SELRES) Special Pay Program service obligation.  (The applicant actually requests correction of his separation date from 2 July 2010 to 10 July 2010.)

2.  The applicant states that he transferred from active duty to the North Carolina Army National Guard (NCARNG) on 2 July 2008.  All of the required documents were not available at the time he was commissioned in the NCARNG.  As a result, the contract for SELRES Special Pay was not signed until 11 July 2008.

   a.  After serving in the NCARNG, he was issued orders with a separation date of 2 July 2010.  He resigned his commission on the separation date.

   b.  He states neither he nor his unit's administrators realized he should have been separated on 10 July 2010; 2 years from the date his special pay contract was signed.  He adds that this 8-day discrepancy, which he would have served had he realized the error, has triggered actions to recoup his special pay bonus.

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and a memorandum for record (MFR).




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.  The applicant was appointed as a Reserve commissioned officer on 13 May 1999 in the rank of second lieutenant.  On 10 May 2002, he was appointed as a Reserve commissioned officer in the rank of captain and awarded area of concentration 61H (Family Medicine) and entered active duty on 10 June 2002.  He was subsequently appointed in the Regular Army.

3.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC, Orders 081-0296, dated 21 March 2008, as amended by Orders 115-0250, dated 24 April 2008 and Orders 164-0310, dated 12 June 2008, discharged the applicant from the Regular Army (RA) effective 1 July 2010.  The 24 April 2008 amendment shows the applicant was to be assigned to Headquarters and Headquarters Company (HHC), 130th Combat Support Battalion (CSB) (Maneuver Enhancement) (ME), Charlotte, NC, per a
DA Form 5691-R (Reserve Contract), dated 22 April 2008.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 10 June 2002.

   a.  He served in Afghanistan in support of Operation Enduring Freedom from 6 May 2006 to 7 June 2007.

   b.  He was promoted to major (O-4) in the RA on 10 June 2008.

   c.  He was honorably discharged from the RA on 1 July 2008 and was to be appointed in the Army National Guard (ARNG) and assigned to the 130th CSB (ME), Charlotte, NC (NCARNG).

5.  State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, Raleigh, NC, Orders 192-806, dated 10 July 2008, appointed the applicant in the ARNG effective 2 July 2008.

6.  USAREC Form 1166 (SELRES Special Pay Program Contract – Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties) shows the applicant agreed to an annual special pay for $25,000 to be paid upon receiving reassignment orders or the anniversary date.

   a.  It also shows the applicant shall be required to perform satisfactorily in the SELRES and he incurred an Army SELRES obligation of 2 years (that began immediately) in the ARNG.

   b.  Section III (Termination) shows, "I understand that my entitlement under  this program continues unless or until I do one of the following," in pertinent part, "separate from the SELRES for any reason," and "If [applicant] terminates service in the SELRES before the end of the period for which payment was made, [applicant] shall refund the full amount of the payment made for the period on which the payment was based."

   c.  The applicant and Army Medical Department (AMEDD) Strength Manager signed the document on 11 July 2008.

7.  A DA Form 5074-1-R (Record of Award of Entry Grade Credit – Health Services Officers) shows, on 21 July 2008, the AMEDD Officers Accessions officer authenticated the applicant's date of appointment of 2 July 2008 and his date of rank (10 June 2008).

8.  NGB, Washington, DC, Special Orders Number 268 AR, dated 20 October 2008, announced the extension of Federal recognition of the applicant's appointment in the ARNG effective 2 July 2008.

9.  U.S. Army Human Resources Command, St. Louis, MO, memorandum, dated 
31 March 2010, appointed the applicant as a Reserve commissioned officer in the rank of major effective 2 July 2008.

10.  State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, Raleigh, NC, Orders 301-824, dated 28 October 2009, honorably separated the applicant from the ARNG effective 2 July 2010.

11.  An NGB Form 22 shows the applicant entered service this period on 2 July 2008 and he was honorably discharged on 2 July 2010 based on resignation from the ARNG.  He had completed 2 years and 1 day of net service this period.
   a.  Item 18 (Remarks) shows, in pertinent part:  "Member has completed full term of service."

   b.  Item 20 (Signature  of Person Being Separated):  "Soldier Not Available For Signature."
   
12.  A review of the applicant's Official Military Personnel File failed to reveal a copy of a Reserve Contract or Oath of Office for the period of service under review.

13.  In support of his request, the applicant provides a copy of a Recruiting and Retention Battalion, NCARNG, Raleigh, NC, MFR, dated 31 May 2013, that shows the Specialty Branch Manager certified that the applicant was discharged prior to completing his required obligation for his AMEDD incentive and he contacted the Office of The Adjutant General, NCARNG, to resolve the issue.  It also shows that since the applicant was already discharged, the NCARNG "can no longer effect his record to change his date of separation."

14.  Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 56 (Selected Reserve Accession, Affiliation, Enlistment, and Reenlistment Bonuses), paragraph 560302 (Affiliation Bonus), provides that the Secretary concerned will designate the skills, units, and pay grades for which an affiliation bonus may be paid.

	a.  Any skill, unit, or pay grade so designated will be a skill, unit, or pay grade for which there is a critical need for personnel in the SELRES of the Ready Reserve of an Armed Force, as determined by the Secretary concerned.

	b.  The Secretary concerned will establish other requirements to ensure that members accepted for affiliation meet required performance and discipline standards.  A member 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, will be subject to the 
repayment provisions of chapter 2.

   c.  Chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following: 

    	(1)  contrary to a personnel policy or management objective;
   
   	(2)  against equity and good conscience; or 

     	(3)  contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant contracted to serve for a period of 2 years in the NCARNG on 22 April 2008 commencing upon his discharge from the RA on 1 July 2008.

2.  Records show he was appointed in the NCARNG effective 2 July 2008. However, the orders that appointed him in the NCARNG are dated 10 July 2008. He executed his SELRES Special Pay contract the following day on 11 July 2008.

3.  The SELRES Special Pay contract shows, in pertinent part, that the applicant incurred an Army SELRES obligation of 2 years in the ARNG when the contract was authenticated on 11 July 2008.  However, based on the evidence of record as outlined above, this is not the overriding issue in this case.

4.  Records show the applicant's effective date of appointment of 2 July 2008 was not [emphasis added):

* announced in orders by the NCARNG until 10 July 2008
* authenticated by AMEDD Officer Accessions until 21 July 2008
* announced by the NGB until 20 October 2008
* announced by the U.S. Army Human Resources Command until 31 March 2010

5.  Based on the foregoing, it is reasonable to conclude that the applicant's administrative transition processing into the NCARNG was not timely.  However, the evidence of record shows the applicant acted promptly by executing his SELRES Special Pay contract the day after his appointment orders were issued.

6.  The evidence of record shows he was issued orders separating him effective 2 July 2010.  (It is noted that the applicant's 2-year NCARNG service obligation actually expired on 1 July 2010.)

7.  There is no evidence the applicant was advised that the 8-day difference in the date of his appointment and SELRES Special pay contract date would result in recoupment of the entire special pay based on him being separated on 2 July 2010; two years after he was appointed in the NCARNG.  Moreover, the evidence of record shows the applicant would have voluntarily served the additional 8 days had he realized his "early" separation would have resulted in recoupment of his entire SELRES Special Pay bonus.

8.  Therefore, in view of all of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show he satisfied the 2-year service requirement for entitlement to the full amount of the SELRES Special Pay bonus.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 and all appropriate officials signed the USAREC Form 1166 on 2 July 2008 in the annual amount of $25,000.00 effective 2 July 2008 through 1 July 2010 and, therefore, entitling him to the total amount of the $50,000.00 Selected Reserve Special Pay bonus.

2.  As a result of the above correction, the Defense Finance and Accounting Service shall be notified of the Board's determination, cancel any recoupment actions pertaining to applicant's Selected Reserve Special Pay, and ensure full payment of the applicant's Selected Reserve Special Pay (less any withholdings) as a result of fulfillment of the 2-year service obligation.




3.  The Board further determined that 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 his separation date.  




      _______ _  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)                                         AR20130019169



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