BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20140002657 


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 that:

* the effective date on his DD Form 2839 (Career Status Bonus (CSB) Election) be changed to the date of his deployment in Afghanistan
* he be refunded the $7,500 tax deducted from his CSB

2.  The applicant states:

* in September 2013, he was eligible for a career bonus
* at the time he signed his DD Form 2839 he thought his battalion commander would not be in the same location as he was for deployment
* he was told that he could get the signatures needed while in garrison and then submit the form once he was deployed and still get the full $30,000 tax free
* he was not deployed when he signed his DD Form 2839 but his battalion commander was on deployment orders
* his unit was to be dispersed to different locations in Afghanistan and no one knew for sure where they would be
* he discussed his intentions of receiving his career bonus as "tax free" with retention personnel and he was advised he could get the signatures he needed and then submit the document once he was deployed in the combat zone
* once deployed he gave his battalion S-1 the documents and they were submitted to the finance office in Shindand, Afghanistan
* finance personnel advised him that he should wait until his entitlements for deployment started so he could get the full $30,000 CSB tax free
* his documents were looked over by finance and given back to his battalion S-1 assuring him that everything was in order and nothing needed changing
* his battalion S-1 briefed him that they should wait until his entitlements started before the form was submitted so that he could get the full $30,000 tax free
* once his entitlements started on 1 January 2014 he requested that his documents be resubmitted to finance for a second attempt to receive his CSB
* the documents were reviewed and verified for accuracy and his intentions were known by all parties involved
* on 15 January 2014, he received his CSB only to find out that he was taxed $7,500
* an investigation of the taxed amount showed the effective date on his DD Form 2839 as a date when he was still in garrison
* attempts to have finance fix their mistake have failed
* he acted on the information provided and he should not have been taxed $7,500 based on someone else's mistake
* he is still deployed to Afghanistan and his orders are proof of his deployment

3.  The applicant provides:

* self-authored statements
* DD Form 2839

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Delayed Entry Program on 28 August 1998.  He enlisted in the Regular Army on 24 September 1998.

2.  On 28 August 2012, he was honorably discharged to accept an appointment as a warrant officer.

3.  On 29 August 2012, he executed an Oath of Office as a Reserve warrant officer.  On the same date, he was ordered to active duty for a 6-year period.

4.  Orders Number BL-295-0018, issued by U.S Army Installation Management Command, Headquarters, United States Army Garrison, Fort Bliss, TX, dated 22 October 2013, show he was ordered to be deployed in a temporary status in support of Operation Enduring Freedom, Shindand, Afghanistan, with a proceed date of 15 December 2013 for a period not to exceed 270 days.

5.  The applicant provides self-authored statements and a DD Form 2839 dated 17 January 2014 that shows in:

	a.  Section II (Determination of Eligibility), RGW verified on 15 January 2014 that the applicant was eligible to elect the CSB;

	b.  Section VI (Eligible and Electing to Receive the CSB), item 12, in pertinent part, "I elect to receive the Career Status Bonus payment,…My election is effective once received and accepted at the 15th year of service."  Block a (I Elect to Receive the CSB as follows) shows an "X" was placed item 1 "A Single Lump Payment of $30,000."   The applicant placed his signature in item 12b of this section with a date of 17 January 2014;

	c.  Item 13 (Witness) that Lieutenant Colonel (LTC) EAB, Battalion Commander, placed his signature in this section with a date of 17 January 2014; and

	d.  Section VI (Service Recording of Election - To be completed by Service Official after member makes an election to receive the bonus):

(1) Item 16 (CSB Election Effective Date) – 17 January 2014 and

(2) Item 17 (Recording Official) that LTC EAB, Battalion Commander, placed his signature in this section with a date of 17 January 2014.

6.  On 2 April 2014, the Chief, Army Retirement Services, Office of the Deputy Chief of Staff, G-1, Washington, DC, provided an advisory opinion.  This official stated:

	a.  The applicant was notified 9 September 2013 for his CSB.  He reached his 15-year mark on 28 August 2013.  

	b.  On 10 September 2013, the applicant and his command signed the initial DD Form 2839 prior to deployment.  The applicant requested that his unit S-1 defer submitting the document until his unit arrived in Afghanistan in order to be eligible for a combat zone tax exclusion (CZTE).  He deployed 15 December 2013 to 22 February 2014.  The document in question was submitted on a Case Management System on 23 December 2013 from Afghanistan.

	c.  The applicant was not deployed at the time he signed his initial DD Form 2893.  He was paid in accordance with the regulatory guidelines based on where the Soldier was physically located the month of election.  In January 2014, he submitted a second DD Form 2839 requesting CSB in CZTE.  As his initial request was processed and filed, his second submission would be invalid and should not be considered for review per regulatory guidance.  His CSB was taxed properly as per his taxable status in September 2013. 

7.  On 3 April 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or rebuttal.  He did not respond in the allotted time.

8.  Army Regulation 600-8-7 (Retirement Services Program) prescribes policies governing military personnel retirement services.  Chapter 7 (CSB/Reduced Retired [REDUX] Pay Plan) sets forth the tasks, rules, and steps for processing applications for Soldiers making a choice under the CSB/REDUX.

	a.  Paragraph 7-2 (Background) provides that Soldiers who are eligible under current Service regulations to serve continuously to 20 years must choose between the High-3 and the CSB/REDUX between years 14 1/2 to 15 years of active duty, although retirement will not occur until the Soldier has completed 20 years of service.  The Soldier's BASD serves as the basis when calculating for the 14 1/2 to 15 years of active duty.

	b.  Paragraph 7-3 (Rules for processing requests for a choice under the plan) provides that installation commanders are required to conduct monthly or individual CSB/REDUX briefings for eligible Soldiers once they complete 14 1/2 years of active duty to help them decide between the CSB/REDUX or High-3 retirement plans.  The options for CSB are:

          *	one payment of $30,000
          *	two annual installments of $15,000 each
          *	three annual installments of $10,000 each
          *	four annual installments of $7,500 each
          *	five annual installments of $6,000 each

	c.  Paragraph 7-4 outlines the steps required to process a Soldier's request to make a choice under the CSB/REDUX.  It shows for:

	(1)  Step 1 - Responsibility:  Personnel - provide eligible Soldier with written notification at the 14 1/2 year of active duty.  Personnel will include procedures for electing the CSB and an explanation of the effect that electing the CSB will have on the computation of retired pay if and when the Soldier becomes eligible,
	(2)  Step 2 - Responsibility:  Soldier - Soldier has 6 months to decide to either remain under High-3 or elect CSB/REDUX,

	(3)  Step 3 - Responsibility:  Personnel - a lieutenant colonel or the designated representative in the Soldier's chain of command must sign item 13 and item 17 of the DD Form 2839.  The same person must sign both blocks, and

	(4)  Step 4 - Responsibility:  Soldier - Soldier gives completed DD Form 2839 to the personnel officer.

	d.  Paragraph 7-6 (CZTE) shows the CSB/REDUX has a unique set of rules for CZTE eligibility.  The tax exemption is based on one of two dates as follows:

	(1)  If a Soldier elects CSB/REDUX before the 15th year of active service, combat zone eligibility is based on where the Soldier is physically located the month the 15-year mark is reached.  If the Soldier is in the combat zone that month, the CSB (any increments) is tax-exempt.

	(2)  If a Soldier elects CSB/REDUX after the 15-year mark of active service (rare occasions), combat zone eligibility is based on where the Soldier is physically located the month he/she makes the election.  If the Soldier is in the combat zone that month, the CSB (any increments) is tax-exempt.

9.  The DD Form 2839 is a 3-page form that provides for the entry of information on pages 1 and 2, and page 3 provides instructions for completing the form. 

	a.  The Glossary shows the CSB Election Effective Date is the date the member's election to receive a CSB becomes irrevocable.  This is the date the election is received and accepted at the 15th year of service, or if later, the date received and determined acceptable by the Service concerned, but no later than the date that is 6 months after the member is notified of eligibility for the CSB.

	b.  The instructions for Section IV (Eligible and Electing to Receive the Career Status Bonus) show it is to be completed if the Soldier is eligible and desires to receive the CSB.

	c.  The instructions for Section VI (Service Recording of Election) show, in pertinent part, this section is to be completed by Service officials if the member elects to receive the CSB.




DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was not deployed when he signed his original DD Form 2839 and was told he could get the signatures needed while in garrison and then submit the form once he was deployed; however, he provides a form that was signed in 2013.

2.  Records show the applicant reached his 15-year mark on 28 August 2013 (actually, he reached his 15th year of active duty on 24 September 2013) and he was notified 9 September 2013 for his CSB election.

3.  Although the applicant's intent was to receive a tax-free CSB, he and his commander signed the initial DD Form 2839 on 13 September 2013, prior to his deployment.

4.  The governing Army regulation is clear regarding CZTE for a Soldier who elects CSB/REDUC after the 15-year mark of active service.  It states combat zone eligibility is based on where the Soldier is physically located the month he/she makes the election.  The applicant clearly was in the United States when he made his CSB election.  The fact that he hand-carried his DD Form 2839 with him to Afghanistan is not the determining factor in this case.

5.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant's request for him to claim a tax-exempt status for his CSB.

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 that 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)                                         AR20140002657



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ABCMR Record of Proceedings (cont)                                         AR20140002657



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