IN THE CASE OF:	  

		BOARD DATE:  18 February 2014

		DOCKET NUMBER:  AR20130020404 


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 the final installment of his $20,000 critical skills retention bonus (CSRB) be paid.  

2.  The applicant states, in November 2008, he signed a CSRB contract and he remained a signal officer in the Indiana Army National Guard (INARNG).  He subsequently cancelled his enrollment in the Military Intelligence transition course.  In May 2001, his basement flooded.  All his documents and records were stored there.  His contract, which should have been loaded electronically to his official records, is not available anywhere.  He submitted an exception to policy request to the National Guard Bureau (NGB) but his request was denied, without recoupment, due to lack of contract.  He received his initial payment in February 2009.  He could not have received this payment without a signed agreement. 

3.  The applicant provides:

* Officer Record Brief
* Leave and Earnings Statement
* Exception to policy request
* NGB denial memorandum
* DA Form 4187 (Personnel Action)
* DA Forms 2823 (Sworn Statement)



CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the INARNG and executed an oath of office on 20 August 2000. 

2.  He entered active duty on 18 April 2001 and successfully completed the Signal Officer Basic Course at the U.S. Army Signal Center, Fort Gordon, GA, from 19 April to 24 August 2001.  He was awarded area of concentration (AOC) 25A (Signal, General). 

3.  He served in a variety of assignments including multiple periods of active duty from December 2004 to June 2011, June 2011 to April 2012, and May 2012 to December 2013.  

4.  He attended and successfully completed the Signal Captains Career Course and he was promoted to captain on 10 March 2005 and major on 7 May 2010.  

5.  In July 2011, he submitted a DA Form 4187 requesting an exception to policy payment of the final installment of his CSRB.  He stated that he signed a CSRB contract in November 2008 for assignment to the 38th Sustainment Brigade.  The original contract had been lost by the J-1 and his copy was missing.  

6.  With his request, he also submitted two sworn statements.  In one sworn statement, dated 11 July 2011, the Brigade Career Counselor stated the applicant's contract was done in 2008 and he was eligible for the CSRB.  In another sworn statement, dated 11 July 2011, the applicant states he was advised by the Brigade Career Counselor that he was eligible for the CSRB.     He met with him, signed the contract, and received his first payment in or around December or January.  

7.  If his contract had been available, it would have stated/shown: 

* he would have executed an Officer Written Agreement – Army Reserve Component (RC) CSRB
* he would have acknowledged that in connection with his assignment and agreement to serve for a period of 3 years in a unit of the Selected Reserve (SELRES) and AOC 25A – designated as a critical CSRB
* he would have been qualified to serve in a valid position of a troop program unit (TPU) in a designated critical skill listed on the CSRB list
* he would have acknowledged he would receive a CSRB in the amount of $20,000.00 for agreeing to serve in the designated AOC for a period of 3 years
* he, a service representative, and a witnessing official would have authenticated this agreement with their signatures

8.  On 5 June 2012, the NGB denied his exception to policy request.  An NGB official stated although the applicant was eligible for the CSRB with the INARNG on 6 December 2008 in the critical AOC of 25A, he failed to sign a CSRB Written Agreement.  According to the Department of Defense Instructions 1205.21, paragraph 6.2, each recipient shall be required to sign a written agreement stating that the member had been advised of and understands the conditions under which continued entitlement to unpaid incentive shall be terminated and which advance payments may be recouped.  The applicant did not sign such an agreement.  The State Incentive Manager would terminate the incentive without recoupment.

9.  Office of the Under Secretary of Defense memorandum, dated 12 December 2007, approved payment of bonus to ARNG and USAR officers who agree to serve in an active status for not less than 3 years in certain AOCs designated as critical for the CSRB in accordance with Title 37, U.S. Code, section 323.  One of the AOCs designated as critical for CSRB purposes is 25A. 

10.  All Army Activities Message 007/2008, dated 18 January 2008, provided the ARNG and U.S. Army Reserve (USAR) policy for implementing and using the CSRB for ARNG and USAR officers.  The CSRB applies to ARNG officers who agree to serve for 3 years in an ARNG unit in selected specialties, among them Signal (25A). 

11.  NGB Memorandum, dated 1 February 2008, announced the implementation guidance for the ARNG CSRB.  Officer Critical Skills are identified/listed.  AOC 25A is listed. 

12.  Title 37, U.S. Code, section 303a(e), Special Pay – General Provisions, Repayment of Unearned Portion of Bonuses and Other Benefits When Conditions of Payment not Met, Termination of Entitlement to Unpaid Amounts, states:  

	a.  Except as provided in paragraphs (2) and (3), a member of the uniformed services who receives a bonus or similar benefit and whose receipt of the bonus or similar benefit is subject to the condition that the member continue to satisfy certain eligibility requirements shall repay to the United States an amount equal to the unearned portion of the bonus or similar benefit if the member fails to satisfy the eligibility requirements and may not receive any unpaid amounts of the bonus or similar benefit after the member fails to satisfy the requirements, unless the Secretary concerned determines that the imposition of the repayment requirement and termination of the payment of unpaid amounts of the bonus or similar benefit with regard to the member would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States. 

	b.  The Secretary concerned may establish, by regulations, procedures for determining the amount of the repayment required under this subsection and the circumstances under which an exception to the required repayment may be granted.  The Secretary concerned may specify in the regulations the conditions under which an installment payment of a bonus or similar benefit to be paid to a member of the uniformed services will not be made if the member no longer satisfies the eligibility requirements for the bonus or similar benefit.  For the military departments, this subsection shall be administered under regulations prescribed by the Secretary of Defense.

13.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in:

   a.  section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202; and

   b.  section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control.  In addition, 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 one or more of the following:  contrary to a personnel policy or management objective; against equity and good conscience; or contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served and continues to serve in the ARNG as a commissioned officer.  In December 2008, he was eligible for a CSRB.   As his records show, he held AOC 25A.  This AOC was authorized a $20,000 bonus and despite the absence of a written agreement, the applicant received the first installment.  

2.  When the time came to claim his second and final installment, an audit of his records revealed the absence of a written agreement.  He submitted an exception to policy but his exception was denied by the NGB on the grounds that there was no written agreement.  

3.  The purpose of the CSRB was to retain Soldiers in selected specialties in a designated critical skill in order to support the ARNG in meeting critical manpower shortages.  As such, the intent of the CSRB had been satisfied in the applicant's case.  The key to the CSRB is to have a specific AOC and be fully qualified and serve in a designated critical skill AOC (for 3 years).  

4.  Although the DODI requires the presence of a written agreement, the applicant should not be held solely responsible for the absence of such document from his records.  He appears to have executed such contract in good faith.  He continued to serve and fulfill the requirements of such contract and his AOC was authorized the CSRB.  Therefore, he should be entitled to the second installment of the CSRB.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  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 and State Army National Guard records of the individual concerned be corrected to show that he:

* executed a Written Agreement in November 2008 for a critical skill and received a valid Bonus Control Number for retention in the INARNG for the CSRB in the amount of $20,000
* is eligible for payment of the bonus in accordance with the terms of his enlistment contract
* be paid the final installment of his bonus as specified in his written agreement



      _______ _  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)                                         AR20130020404





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ABCMR Record of Proceedings (cont)                                         AR20130020404



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