IN THE CASE OF: 

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20140000183 


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 relief of recoupment of his reenlistment bonus and correction of his records to show he timely completed an Officer Accession Bonus (OAB) Addendum in the amount of $10,000.00.

2.  The applicant states he is fully eligible to receive both bonuses because he served at least 1 year of his Reenlistment Bonus Contract before he was commissioned.  He states his bonus should be terminated without recoupment.

3.  The applicant provides:

* Self-authored Memorandum for the Army Board for Correction of Military Records (ABCMR), dated 12 December 2013
* Notification of Termination/Recoupment of Incentives, dated 22 August 2013
* Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES)
* National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extensions on Bonus Addendum Army National Guard)
* Extension with Bonus Memorandum, dated 10 December 2004

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the California Army National Guard (CAARNG) for 6 years on 20 March 1995.  He extended his enlistment on 21 January 2001.  
2.  The applicant extended his enlistment for 3 years on 1 December 2004.  At the time of this extension, he completed an NGB Form 600-7-3-R-E acknowledging that he would receive a total reenlistment/extension bonus of $2,000.00.  He acknowledged that understood he would be terminated from bonus eligibility if he accepted a commission as an officer or an appointment as a warrant officer after he served 1 year or more of Selected Reserve service under this agreement.  (Recoupment is not required.)

3.  On 30 March 2005, the applicant accepted an appointment in the CAARNG in the rank of a second lieutenant (O-1).  He was promoted to first lieutenant (O-2) on 30 March 2007.  He was promoted to captain (O-3) on 24 April 2012.

4.  The applicant provides a memorandum explaining the circumstances surrounding the bonus payments he received.

	a.  He received a $2,000.00 reenlistment bonus on 19 March 2004 for reenlisting in military occupational specialty 19K (Armor Crewman) of the CAARNG.

	b.  He is being told he was not authorized the bonus due to accepting a commission in the CAARNG, which did not occur until late 2005.

	c.  According to the NGB Form 600-7-3-R-E, recoupment is not required for for accepting a commission as an officer after he served 1 year or more under the extension.

	d.  The second bonus he received was $10,000.00 for an officer critical skills bonus.  This bonus was brought to his attention in the February/March 2010 timeframe while he was in a pre-mobilization atmosphere.  He spoke with a lieutenant colonel who had just completed an active duty overseas tour with the Accessions/Recruiting Task Force.  The lieutenant colonel informed him that he was eligible for this bonus because it was for all officers who were 11A (Infantry) qualified.  He spoke with another lieutenant colonel who was working with the Recruiting Task Force to verify his eligibility.  He was told he was eligible and he was put in for the bonus.  He did not retain any copies of his paperwork due to his location and at no time was he aware of any circumstances that made him ineligible for this bonus.

	e.  For all bonuses he received, he based the validity of them on the honor and integrity of his peers in ensuring the paperwork was correct.  For the $2,000.00 reenlistment bonus, he was not aware of the clause regarding the commission and even if he had read it, he would have assumed it would not be recouped due to his continued work in the same unit.

	f.  He did not intentionally commit fraud or knowingly participate in any fraudulent actions.

5.  The applicant also provides a copy of his LES that shows he has a total unpaid debt balance of $12,000.00, and a memorandum from Headquarters, CAARNG, dated 22 August 2013.  This memorandum states that the CAARNG audited his bonus and/or student loan repayment incentive payments and his incentive contract(s) were being terminated due to "No Contract, Payment made in violation of Federal law, Payment made in violation of NGB Policy."  He was told that $12,000.00 was being recouped.

6.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1.  The Chief, Officer Division recommended disapproval of the applicant's request based on the following reasons:

	a.  The applicant contracted for a $2,000.00 reenlistment bonus on 1 December 2004.

	b.  On 30 March 2005, he executed an Oath of Office accepting a commission in the CAARNG.

	c.  There is no record of an OAB Addendum, or other officer incentive contract, in the applicant's official military personnel file.

	d.  His personnel records and the Selected Reserve Incentive Policy in effect on the date he contracted for the reenlistment bonus indicate he was qualified for the bonus.

	e.  In Section V (Termination), Item 10, of the NGB Form 600-7-3-R-E it specifies the applicant's bonus eligibility will be terminated if he accepts a commission as an officer after having served 1 year or more of Selected Reserve service under the agreement.  It further states recoupment is not required in that instance but because he only served 4 months between his reenlistment and commissioning date recoupment of the bonus is appropriate.

	f.  In his request for relief, the applicant indicates he was notified of a $10,000.00 "officer critical skills bonus" in February/March 2010 timeframe.  The OAB agreement is required to be presented to an eligible applicant prior to officer appointment/training or on or before the officer's appointment date.  He states he was informed of the OAB and he completed the OAB Addendum 5 years after his commission date.  Therefore, the applicant was ineligible for the OAB when he purportedly signed the OAB Addendum and received the bonus payment.

	g.  The applicant may be referring to the Army National Guard (ARNG) Critical Skills Retention Bonus (CSRB) in his request, rather than the OAB, because both bonuses were simultaneously offered to eligible officers closer to the timeframe referenced in his request.  The ARNG CSRB was authorized to all infantry (11A) captains beginning 1 February 2008, but was suspended indefinitely on 1 March 2009, and was not afterword reinstated.  Therefore, if the bonus for which the applicant is requesting relief of recoupment is actually the CSRB, he would not have been eligible for it in 2010.

7.  The applicant received a copy of the advisory opinion on 15 April 2014 for his information and/or possible rebuttal.  He responded by asking how can he setup recoupment in portions so his pay check is not dramatically impacted.

8.  Title 37, U.S. Code, section 308j(b), states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to:

	a.  accept an appointment as an officer in the Armed Forces, and

	b.  to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.

		(1)  Paragraph (2)(a) states the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction the officer skills to which the authority under this subsection is to be applied.

		(2)  Paragraph (2)(b) states a skill may be designated for an Armed Force under paragraph (2)(a) if, to mitigate a current or projected significant shortage of personnel in that Armed Force who are qualified in that skill, it is critical to increase the number of persons accessed into that Armed Force who are qualified in that skill or are to be trained in that skill.

		(3)  Paragraph (2)(b) further states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned.

9.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNG and USAR incentive programs.  The SRIP incentive is offered to newly-accessed officers who met eligibility criteria and access into an officer specialty listed in the SRIP, for the period in which commissioned.

10.  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
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be determined to be eligible to receive both bonuses has been considered and had found to be without merit.

2.  He was eligible for the $2,000.00 reenlistment bonus until he accepted his commission only 4 months after he signed his contract.  The available evidence shows he extended for the bonus on 1 December 2004, not 19 March 2004.  The addendum states he would be terminated from bonus eligibility without recoupment if he accepted a commission as an officer or an appointment as a warrant officer after he served 1 year or more of Selected Reserve service under this agreement.  The fact that he, an officer of the CAARNG, now contends that he did not read his contract, is not a sufficient basis for granting him relief of the recoupment of the reenlistment bonus he received.  He should contact DFAS to make payment arrangements.

3.  The applicant's request for an OAB in the amount of $10,000.00 was carefully considered.  Notwithstanding the advisory opinion, this portion of his request is found to have merit only for the following reasons.

4.  He was appointed as an O-1 in the CAARNG on 30 March 2005 but did not complete an OAB addendum until approximately 5 years after his commissioning because he did not knew about the OAB earlier.  

5.  The OAB is offered as an incentive to individuals to access as officers.  It is readily apparent that the applicant did not need that incentive to access.  Nevertheless, when he learned about the bonus 5 years later it appears that the CAARNG allowed him to sign an agreement for the OAB and paid him the OAB.

6.  The available evidence shows the applicant fulfilled the requirements to receive the OAB, had he signed the OAB agreement at the time he accessed.  Therefore, it would serve the interest of equity to correct his records to show the NGB and CAARNG determined the $10,000.00 OAB payment was not required to be recouped.

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 and Army National Guard records of the individual concerned be corrected by showing the NGB and CAARNG determined the $10,000.00 OAB payment was not required to be recouped.

2.  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 relieving him of the recoupment action pending against him as a result of the reenlistment bonus he received.



      _______ _ 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)                                         AR20140000183



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ABCMR Record of Proceedings (cont)                                         AR20140000183



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