BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20130021358 


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 her records to show she was entitled to a $10,000.00 officer accession bonus (OAB) and cancellation of the recoupment of her OAB in the amount of $10,000.00.  

2.  The applicant states in accordance with (IAW) the Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) for Fiscal Year (FY) 2007, as a newly-commissioned officer she was eligible, met all the requirements to receive the OAB, and had already fulfilled the terms of the contract.

	a.  On 15 June 2007, she commissioned into the California Army National Guard (CAARNG) as a second lieutenant (2LT) in the Medical Service Corps (MS).  Prior to attending the Army Medical Department (AMEDD) Basic Officer Leaders Course (BOLC), her unit told her she would be eligible for a $10,000.00 OAB as soon as she completed BOLC.  She was told all she had to do to receive the bonus was to submit her DA Form 1059 (Service School Academic Evaluation Report) to her unit and they would process the bonus for her.  She completed BOLC on 14 December 2007 and upon returning to her unit, she submitted her DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 1059 to her readiness noncommissioned officer (NCO), Sergeant First Class (SFC) Dxxxx Cxxxx, for processing.  Sometime around January 2008 she received two payments of $5,000.00 each.  She thought the payments were for the OAB.  Unfortunately, she does not recall ever signing an addendum for the bonus.  The fact that she received the money for the OAB only reinforced her belief she was eligible to receive the OAB.

	b.  On 1 May 2013, she received a notification from the CAARNG Incentive Task Force (ITF) stating she owed the U.S. Government $10,000.00 for an OAB she was erroneously paid.  The ITF audit stated she was not entitled to the OAB because a copy of a signed addendum could not be found in her Official Military Personnel File (OMPF), in violation of Department of Defense Instruction (DODI) 1.205.21, section 6.2 and Title 37 U.S. Code (USC), §332 paragraph (d).  

	c.  Notwithstanding the fact that a written contract was not found, she was eligible to receive the OAB at the time of her commissioning.  

	d.  In her case, she agreed to serve for no less than 6 years on an active drilling status and fulfilled that commitment on 15 June 2013.  She was commissioned into area of concentration (AOC) 70B (Health Service Administrator), which was considered a critical officer AOC at the time.  She did not accept her commission for the purposes of qualifying in a Military Technician (Mil Tech) or Active Guard Reserve (AGR) position and she never received any of the forbidden education incentives.  Based on these factors, it is clear she was eligible to receive the OAB at the time of her commissioning.

	e.  The fact that the bonus addendum could not be furnished should not automatically bar her from receiving the bonus.  According to a DOD memorandum entitled "Repayment of Unearned Portions of Bonuses, Special Payment and Educational Benefits or Stipends," the Secretary of the Army may relieve a service member from repayment if recoupment is contrary to personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States.  In her case, she met the terms of the agreement by honorably serving as an officer in the CAARNG.  Recoupment of the OAB bonus would be against equity and good conscience.  

3.  The applicant provides:

* ARNG SRIP Guidance for FY 2007, 2008, and 2009 (10 August 2007 – 
30 September 2009 (Policy Number 07-06), dated 10 August 2007 and updated on 17 February 2008
* Critical officer AOC List (16 June 2007 – 31 March 2008)
* Memorandum, dated 21 May 2008
* ITF Bonus Audit Form, dated 22 March 2013
* Memorandum, dated 31 May 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.  Having had prior enlisted service, the applicant was appointed as an MS 2LT Reserve officer in the CAARNG and she executed a National Guard Bureau (NGB) Form 337 (Oaths of Office) on 15 June 2007.

3.  Her record does not contain a contract or an OAB addendum.

4.  Orders 171-1034, issued by CAARNG on 20 June 2007, appointed her as a 2LT Reserve officer in basic branch MS, effective 15 June 2007.

5.  Her DA Form 1059, dated 14 December 2007, shows she successfully completed the AMEDD BOLC.

6.  She provided an ITF Bonus Audit Form, dated 22 March 2013, which shows she signed an OAB contract, for AOC 70H, for $10,000.00 on 15 June 2007.  She was issued a bonus control number (BCN), and the Defense Finance and Accounting Service (DFAS) paid her $10,000.00.  This form shows:

* ITF officials determined she was not eligible for the OAB because her contract did not contain an OAB addendum
* She became MOS Qualified (MOSQ) in MOS 70H on 14 December 2007
* She received two payments of $5,000.00 on 18 January 2008 and 
23 January 2008

7.  She provided a memorandum from the CAARNG, dated 1 May 2013, which shows the CAARNG/ITF audited her incentive contract and noted her contract did not contain an OAB addendum.  The CAARNG further informed her, in accordance with ARNG SRIP Policy Number 07-04 and Title 37, USC, section 332d, since she did not have an OAB addendum in her record her OAB bonus would be recouped because the payment made was in violation of Federal law and NGB policy.  

8.  During the processing of this case an advisory opinion was received from the NGB Personnel Policy Division, on 28 May 2014.  The NGB recommended approval of the applicant's request to be relieved from recoupment of her OAB.  The NGB official stated:

	a.  The applicant was commissioned into the CAARNG on 15 June 2007. According to ARNG SRIP for FY 2007, she was eligible for the OAB.  The officer also commissioned into a critical skill AOC, Health Services Operations Officer 70H.  The California Soldier Incentive Assistance Center (SIAC) determined she was ineligible to receive the OAB due to lack of supporting documentation to substantiate the incentive payment (OAB addendum).  According to Title 37,
USC, section 332(d), "To receive a bonus under this section, a person or officer determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned ..."  Even though no bonus addendum was found during the audit, it does not mean there was no agreement.

	b.  The applicant states that her unit administrator, SFC Dxxxx Cxxxx, told her she would qualify for the OAB upon completion of BOLC.  She admits that she only submitted her DD Form 214 and DA Form 1059 to her unit showing that she completed her BOLC on 14 December 2007 in order to initiate the bonus payment.  The applicant does not recall signing a bonus addendum.  The unit's readiness NCO submitted her request for payment.  The applicant received two payments of $5,000.00 on 18 January 2008 and 23 January 2008, respectively.  The fact that the officer received payment is evidence that there was an agreement.

	c.  The fact that a bonus addendum could not be furnished should not automatically disqualify the applicant from receiving the OAB.  According to a 
DOD memorandum entitled "Repayment of Unearned Portions or Bonuses, 
Special Payment and Educational Benefits or Stipends," the Secretary of the Army may relieve a service member from recoupment if it is contrary to personnel policy or management objective, against equity and good conscience or contrary to the best interest of the United States.  The applicant fulfilled the terms of the contract even though no addendum was found and she continues to serve today.  Also, the SIAC noted there is no evidence of fraud of the Soldier.  It would be against equity and good conscience to recoup the OAB, therefore, the recommendation is relief from recoupment.

	d.  The CAARNG and the NGB Incentive Branch do not concur with this recommendation.
9.  NGB policies:  ARNG SRIP Guidance for FY 2007, 1 January 2007 – 
31 March 2007 (Policy Number 07-04), dated 1 January 2007 and the Extension of ARNG SRIP Guidance for FY 2007 Policy Number 07-04 to 15 June 2007, dated 15 May 2007 state:

	a.  The ARNG offers a $10,000.00 OAB to newly-commissioned officers who agree to serve in the ARNG and meet the following eligibility requirements:

		(1)  The officer agrees to serve for a period of not less than 6 years on an active drilling status.

		(2)  The officer agrees to serve in a critical skill AOC (70H was listed as a critical AOC).

		(3)  The officer does not accept an appointment as a commissioned or warrant for the purpose of qualifying for employment in a Mil Tech AGR position.

		(4)  The officer is not receiving and will not receive the benefits from the Health Professions Stipend Program, Education Loan Repayment Program or other educational assistance programs, Reserve Officers’ Training Corps Financial Assistance Program for Specially Selected Members U.S. Army Reserve (USAR) and ARNG, and/or special pay for senior health care professionals in critically-short wartime specialties during the period of service for which contracted.

	b.  The OAB is payable lump-sum upon successful completion of the Officer Basic Course (OBC) or within three years from the date of commission or appointment.

10.  On 21 May 2008, the Office of the Under Secretary of Defense published a memorandum entitled "Repayment of Unearned Portions or Bonuses, Special Payment and Educational Benefits or Stipends."  This memorandum states:

	a.  A member who enters into a written agreement with specified conditions for receipt of a pay or benefit is entitled to the full amount of the pay or benefit if the member fulfills the conditions for that pay or benefit.  The Deputy Secretary of Defense policy memorandum recognized that at the time, members were subject to statutory repayment authorities with varied requirements, and that repayment would be aggressively pursued for all unearned portion of a pay or benefit, as appropriate. However, it was also understood there may be circumstances that support the need to refrain from taking such action.  

	b.  Pursuant to this policy Memorandum, a member who fulfills the requirements specified in a written agreement related to the member's receipt of a pay or benefit is entitled to the full amount of the pay or benefit specified under that agreement.

	c.  The Secretary 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:

* Contrary to a personnel policy or management objective; or
* Against equity and good conscience; or
* Contrary to the best interest of the United States

11.  Title 37, USC, section 332(d) states to receive a bonus under this section, a person or officer determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned that specifies the amount of the bonus, the method of payment of the bonus, the period of obligated service, and the type or conditions of the service.

DISCUSSION AND CONCLUSIONS:

1.  The ITF Bonus Audit Form she provided shows the official who completed the form specifically stated and acknowledged the applicant contracted for a $10,000.00 OAB on 15 June 2007, she was issued a BCN, DFAS paid her $10,000.00 in two installments of $5,000.00 in January 2008, and she did not have an OAB addendum filed in her record.  

2.  The evidence shows she stated that she did not specifically recall completing an OAB addendum; however, her inability to specifically recollect signing this particular form along with the other forms she would have signed that day is irrelevant because her OMPF does not contain the contract ITF/CAARNG/NGB states she signed on 15 June 2007 or the OAB addendum.

3.  It is clear that CAARNG incentives personnel either lost the OAB contract and OAB addendum or failed to properly file them in her military record.  If these documents had not been timely completed, properly staffed, and verified by appropriate officials the CAARNG/NGB would not have been able to legally issue her a BCN or authorize DFAS to make two OAB payments.  Therefore, it is clear that a simple administrative error occurred which resulted in the applicant's OAB paperwork (contract and addendum) being lost or misplaced before it could be properly filed in her military record.  The applicant served in good faith and should not be held liable for the mismanagement of her records regarding her OAB.  

4.  Therefore, as a matter of equity, all recoupment actions should be stopped immediately, and any monies recouped should be repaid.  Additionally, her record should be corrected to show she properly executed an OAB addendum on 15 June 2007.

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

* showing she and all appropriate officials properly and timely prepared an OAB addendum on 15 June 2007 
* cancelling any OAB recoupment action and reimbursing any monies previously recouped as a result of this correction



      _______ _   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)                                         AR20130021358



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ABCMR Record of Proceedings (cont)                                         AR20130021358



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