IN THE CASE OF:    

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140005769 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's previous request for remission/full administrative relief for a $10,000 officer accession bonus (OAB) he received and is now being recouped because a Federal recognition appointment was never extended to him.

2.  Counsel alleges that the new facts are these:

	a.  the applicant wrote to his Congressman on 30 April 2013 seeking assistance.  This Board considered the Congressman's letter a "Request for Reconsideration," but it was not.  The letter contained no new evidence or argument.  On 25 November 2013, this Board denied the "Request for Reconsideration."  

   b.  after the California Army National Guard (CAARNG) lost the applicant's records, they asked him to resubmit his packet in 2007.  This resubmission created a new 12-month obligation.  It was not meant to create a four-month obligation which would have completed his 12-month obligation under the 26 July 2006 package that was lost.  

	c.  the CAARNG not only lost the applicant's records and had him drill for eight months, but they also refused to take those eight months into account when having him redo the package.

	d.  it was completely reasonable for the applicant to turn down the second signing in March 2007.  As such, a signing did not return the applicant to his original position, but added an additional eight months with no additional OAB compensation.

	e.  what this Board failed to recognize in its decision and what the advisory opinion from the CAARNG failed to note was that the package would have placed a full-year obligation upon the applicant for a total of 20 months served. 

	f.  the applicant had every right to walk away and every right to expect proration of the amount to be recouped.  The applicant, in good faith, served for eight months.

	g.  this is clearly a no fault circumstance for the applicant.  This error clearly lies with the CAARNG.  A bonus was paid.  This fault can be a basis for eliminating offset.  For example, cadets and midshipmen are required to pay back full educational costs if they are disenrolled before graduation for misconduct.  

3.  Counsel provides:

* Letter from the Director, Army Board for Correction of Military Records (ABCMR), dated 24 April 2013
* ABCMR Record of Proceedings, Docket Number AR20120015628, dated 23 April 2013
* Letter addressed to his congressman, dated 30 April 2013
* Letter responding to a congressman, dated 30 October 2013
* Letter from the Chief, Case Management Division, Army Review Boards Agency, dated 8 November 2013
* Letter from the Acting Director, ABCMR, dated 25 November 2013
* Congressional letter, dated 12 December 2013
* Advisory opinion from the National Guard Bureau (NGB), dated 25 February 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120015628, dated 23 April 2013.  
2.  Counsel has provided new arguments that will be considered by the Board.

3.  The applicant's records show he completed prior enlisted service in the U.S. Marine Corps and U.S. Army Reserve (USAR) and prior service as a Reserve commissioned officer in the Army Nurse Corps (ANC).  

4.  On 26 July 2006, a Federal Recognition Examining Board was held by the CAARNG to determine if the applicant was qualified to be awarded Federal recognition.  The NGB Form 89 indicates the applicant was qualified for appointment in the ARNG as a first lieutenant (1LT), ANC.  The applicant was extended temporary Federal recognition in accordance with the provisions of National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions).  The Federal Recognition Examining Board noted favorable determination by U.S. Army Recruiting Command (USAREC) Board.

5.  On 26 July 2006, he executed an Oaths of Office for appointment as a 1LT in the CAARNG.  He was granted temporary Federal recognition.  His service record does not indicate he was granted permanent Federal recognition for this appointment.  He was assigned as a clinical nurse in the CAARNG Medical Detachment, Mather, CA.

6.  Orders 143-1326, dated 23 May 2007, issued by the Joint Force Headquarters, CAARNG, Sacramento, CA, honorably separated him from the ARNG effective 5 March 2007.

7.  A search of the applicant's military personnel documents in the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal a copy of his OAB Addendum.

8.  On 25 February 2013, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request for remission of the $10,000 OAB.  The advisory official opined:

	a.  The applicant was appointed in the CAARNG per Order 214-1061, dated 2 August 2006, with an effective date of 26 July 2006.  According to his claim, he received an OAB of $10,000 for accession into the medical field, minus taxes, on 29 September 2006.  In March 2007, he was asked to return to the CAARNG in order to re-sign and resubmit his 26 July 2006 packet because his Federal recognition packet was never submitted to the NGB.  He decided not to re-sign and resubmit the paperwork to obtain Federal recognition.

	b.  On 23 May 2007, the CAARNG published orders separating the applicant from the CAARNG, effective 5 March 2007.  The officer incentives program manager for the NGB recommends terminating the applicant's incentive with recoupment as is.  Neither the CAARNG nor the NGB Incentives Branch has been able to locate a contract for this Soldier, other than the input in the Installation Management Application Resource Center, as a result of a systems migration from the Human Resource Center.

	c.  Although the CAARNG admits to an error that resulted in the applicant's Federal recognition packet not being submitted, the State attempted to rectify their error once it was identified.  The applicant decided not to re-sign his Oath of Office and therefore it resulted in his separation from the CAARNG.  No administrative relief is recommended for the applicant and the $10,000 bonus should be recouped.  The State concurred with the recommendation.

9.  In a 30 April 2013 letter, the applicant requested assistance from a congresswoman regarding recoupment of the $10,000 medical field OAB.

10.  In a 30 October 2013 letter, the Acting Chief, Congressional and Special Actions, Army Review Boards Agency informed a congressman that the ABCMR notified the applicant on 24 April 2013 of the Board's denial decision.  It was noted the decision was final, but he could request reconsideration of its decision within one year by letter if he could present new evidence or argument that was not considered by the board in the original application.  The official stated that the applicant's letter to the congressman was considered as a request for reconsideration.

11.  In an 8 November 2013 letter, the Chief, Case Management Division acknowledged receipt of the applicant's letter, dated 30 April 2013 for request for reconsideration.  He was informed that the various Army review boards review cases in the order in which they are received and that it may be as long as twelve months before he received notification of the decision on his application.  

12.  In a 25 November 2013 letter, the Acting Director, ABCMR informed the applicant that the staff of the ABCMR reviewed his request for reconsideration, examined the previous application, and reviewed the evidence he submitted in support of his previous application.  From the review, it was determined that although his request was received within one year of the ABCMR's original decision, he did not provide any new evidence and/or argument that would warrant reconsideration by the Board.


13.  In a 12 December 2013 letter, a congressman notified the applicant of the response received from the Department of the Army regarding recoupment of the $10,000 medical field OAB.  The applicant was informed that the Army had determined that since no new evidence was provided, his claim had been returned without a request for reconsideration.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed in the CAARNG as a 1LT, ANC on 26 July 2006.  At that time, his Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of California for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  According to the NGB advisory opinion, the applicant received an OAB of $10,000 for accession into the medical field, minus taxes on 29 September 2006. 

3.  The CAARNG admitted they mistakenly failed to process the applicant's Federal recognition packet.  In order to correct this administrative error, they requested the applicant re-sign his contract but he declined to do so and he was separated from the CAARNG on 5 March 2007.  As a result of his separation prior to completing his contracted period of service DFAS recouped a portion of his medical field OAB.  

4.  It appears that if the applicant would have re-signed his contract, he would have incurred an additional 12-month obligation and he would not have been given credit for the eight months that he had already drilled.  

5.  The applicant should not be held responsible for errors committed by the CAARNG.  Therefore, it would be appropriate at this time and serve the interest of justice and equity to correct the applicant's records by cancelling the recoupment action pertaining to a prorated portion of his $10,000 medical field OAB.

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 partial amendment of the ABCMR's decision in Docket Number AR20120015628, dated 23 April 2013.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

   a.  showing he was approved for retention of his medical field OAB for only the 8 months he served from 26 July 2006 to 5 March 2007; 
   
   b.  voiding any indebtedness and recoupment actions related to the applicant's $10,000 OAB except as provided for above; and
   
   c.  refunding to him any monies due as a result the above correction.  

2.  The Board further determined that the evidence presented is 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 full administrative relief for the entire $10,000 OAB.




      _______ _   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)                                         AR20140005769





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ABCMR Record of Proceedings (cont)                                         AR20140005769



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