BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140000505 


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 removal of a general officer record of memorandum (GOMOR) and relief from recoupment of a:

* $20,000.00 Critical Skill Retention Bonus (CSRB)
* $63,000.00 Student Loan Repayment Program (SLRP) incentive

2.  The applicant states:

* he made a valid contract with the U.S. Government to receive the CRSB and detrimentally relied on the California Army National Guard (CAARNG) incentive system for receiving the SLRP
* he received the incentive payments around May and June 2008
* he fulfilled his obligations for those incentives and it would be unjust and contrary to good conscience to recoup them
* he received notification from the CAARNG Incentive Task Force (ITF) that he owed $83,000.00 for an erroneously-paid CRSB and SLRP and he was under investigation
* his investigation resulted in a GOMOR that was permanently filed in his Official Military Personnel File (OMPF)
* he was completely misled by the Incentives Manger for the Accessions Task Force of the State of California and clearly there were discrepancies with the entire program in the CAARNG regarding his SLRP and CSRB
* he has been informed that the programs were improperly managed
* his GOMOR was wrongly filed because the investigators did not find fraud or any wrongdoing in his case, he was found guilty of relying on the Incentives Manager
* his career has been tarnished as a result of the GOMOR
* he understands that critical skill area of concentration (AOC) 18A (Special Forces) was not on the CSRB list, but he held AOC 11A (Infantry) simultaneously at the time he signed his addendum
* his wife submitted his student loan documents to the Incentives Manager for review and the Incentives Manager determined he was eligible for the SLRP due to his previous enlistment on active duty
* he would not have accepted the incentives had he known he was ineligible and it is a grave injustice to hold him solely liable for the full amount of the debt
* he received $13,500.00 of the $20,000.00 CSRB after taxes and he paid about $18,0000 in taxes on the SLRP incentive
* his career to date has been exemplary and he has received many accolades

3.  The applicant provides:

* self-authored statements
* CAARNG ITF memorandum, dated 14 September 2013
* GOMOR Filing Determination memorandum, dated 10 April 2013
* Notification of Termination/Recoupment of Incentive memorandum
* Federal Bureau of Investigation-Los Angeles Division article, dated 11 July 2011
* GOMOR rebuttal
* CRSB Agreement
* National Guard Bureau (NGB) memorandum, dated 1 February 2008, subject:  Army National Guard (ARNG) Implementation Guidance for the ARNG CSRB
* NGB Form 337 (Oaths of Office), dated 22 August 2003
* CAARNG Orders 227-1038, dated 15 August 2005
* CAARNG Orders 234-1071, dated 22 August 2011
* Office of the Under Secretary of Defense (OUSD) memorandum, dated 21 May 2008, subject:  Payment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends



CONSIDERATION OF EVIDENCE:

1.  The applicant failed to exhaust his administrative remedies prior to submitting his appeal pertaining to his GOMOR, dated 19 December 2012, which is currently filed in the performance section of his OMPF.  He has been advised to submit his request to the Department of the Army Suitability Evaluation Board.  Therefore, this issue will not be discussed further in this Record of Proceedings.

2.  After having prior periods of honorable enlisted service in the Regular Army and ARNG, the applicant was appointed as a second lieutenant in the CAARNG on 22 August 2003.

3.  On 16 January 2008, he was promoted to the rank of captain.

4.  His records indicate he was granted a $20,000.00 CSRB and a $63,000.00 SLRP incentive in 2008.  His records are void of and he failed to provide copies of the CSRB Agreement or SLRP Addendum with authorized bonus control numbers and service representative signatures.

5.  On 14 September 2013 after performing an audit, the CAARNG ITF advised the applicant that discrepancies with his CSRB and SLRP incentives were noted.  He was advised that recoupment of $83,000.00 was warranted due to payments made in violation of Army, NGB, and Department of Defense policy and guidance.

6.  On 18 June 2014, the applicant was promoted to the rank of major.

7.  The Deputy Chief, Personnel Policy Division, NGB, provided an undated advisory opinion wherein he recommended denial of the applicant's request and stated:

	a.  Coordination with the Officer Incentives Program Manager revealed that there is no record of any SLRP incentive being requested for a bonus control number or an incentive as being previously contracted in the Information Management Reporting Center Program.  Additionally, a search of the applicant's interactive Personnel Electronic Records Management System record shows there is no written agreement for which he contracted.

	b.  A further review indicated he was not previously offered the SLRP during any term while serving as an enlisted member; therefore, the ability to contact for the SLRP while serving as a commissioned officer is prohibited.  The terms and conditions within the SLRP Agreement would have identified his ineligibility for receipt of an SLRP in a commissioned officer status.
	c.  On 27 July 2008, he received a tax income payment of $63,000.00 for student loans which was unauthorized and the amount exceeded the SRLP maximum of $20,000.00 that would have been offered to eligible Soldiers.

	d.  The information regarding the CSRB incentive is currently referred to the Department of the Army G-1 office because the ARNG would not have the authority to grant an exception to policy for an AOC that is not listed on the CSRB list.  Additionally, the ARNG is not authorized to grant exceptions to offer incentives when there are no government representative signatures and incentive agreements.

	e.  The CAARNG concurs with the recommendation.

8.  On 17 September 2014, a copy of the advisory opinion was provided to the applicant for review and comment.  He did not respond within the time provided.

9.  The applicant provided self-authored statements and a CSRB Agreement, dated 9 May 2008, which does not show a bonus control number, service representative signature, or certification by a witnessing officer.  Section III (Acknowledgment), paragraph 5 of his CSRB Agreement states, "I have six or more years and not more than twelve years of commissioned service from my date of commission (ARNG commissioned officers only)."

10.  He also provided copies of ARNG Implementation Guidance for ARNG CSRB, dated 1 February 2008, and an OUSD memorandum, dated 21 May 2008, regarding repayment of unearned portions of bonuses, special pay, and educational benefits or stipends.

11.  Department of Defense Instruction 1205.21 prescribes policy, assigns responsibilities, and provides procedures for management of the Reserve Component incentive programs.  Section 6.2 (Written Agreements) states that as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped.  That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member.

12.  Army Regulation 135-7 (Incentive Programs) restricts the SLRP to those Reserve Soldiers who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of military occupational specialties and units which is updated on a periodic basis.  This educational incentive may only be elected at the time of enlistment or reenlistment.  This incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility by no longer serving in the approved MOS or unit.  Entitlement to the SLRP will stop if the Soldier is appointed as a commissioned officer or warrant officer.

13.  Title 10, U.S. Code, section 1552, the law which provides for this Board, states, "The Secretary may pay from applicable current appropriations a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for relief from recoupment of his $20,000.00 CSRB and $63,000.00 SLRP incentive was carefully considered.

2.  Although he argues he should not be held liable for the erroneous payments, his records are void of and he failed to provide valid agreements authorizing such payments.  Further, the CSRB Agreement he provided shows he acknowledged he had 6 or more years but less than 12 years of commissioned service; however, at the time he only had 5 years of commissioned service.

3.  Contracting for an SLRP as a commissioned officer is prohibited.  To grant his request would be providing him a benefit not provided to other Soldiers and contrary to equity.

4.  In view of the foregoing, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x______  ___x_____  __x__  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20140000505



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ABCMR Record of Proceedings (cont)                                         AR20140000505



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