BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140010232 


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 reversal of the National Guard Bureau (NGB) denial of his request for an exception to policy to retain a $20,000 critical skill retention bonus (CSRB).

2.  The applicant states, in effect, the denial of his request for an exception to policy to retain the $20,000 CSRB should be overturned and he should receive credit and final payment of the CSRB.  He entered into a contract at the end of September 2008 while deployed in support of Operation Iraqi Freedom (OIF) and despite the written contract being lost by him and his unit, he should be paid.  On 30 July 2012, the NGB denied his exception to policy request stating that he claimed to have signed the contract on 31 August 2008 and the Bonus Control Number (BCN) was not requested until 30 September 2008.  However, he never claimed to have signed the contract on 31 August 2008.  In his sworn statement, dated 22 March 2012, in paragraph 4, he stated that he did not remember the specific date, but to the best of his knowledge, it was the end of September 2008. The denial was in error; he was eligible for and met all terms of the CSRB.  If the purpose of the contract is to insure that he understood the terms of the contract, he does.  He does not think that an administrative error should result in the termination of the contract when it was entered into in good faith and all terms of the contract were met.

3.  The applicant provides:

* DA Form 2823 (Sworn Statement)
* Notification of Incentive Discrepancy and Exception to Policy Process
* Email from a staff sergeant (SSG)
* Orders 094-331, 183-1037, 262-1079, 030-1063
* Email from a sergeant
* Event log
* NGB denial of exception to policy
* Email from the applicant to the NGB
* Notification of Incentive Termination and Acknowledgement response

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served as an enlisted Soldier in the Army National Guard (ARNG) from 28 February 1989 to 4 September 1991, and in the Regular Army from 8 February 1994 to 18 September 2005. 

2.  He was appointed as a Reserve commissioned officer of the Army and New York ARNG (NYARNG) in the rank of major and executed an oath of office on 19 September 2005.  He was honorably discharged from the ARNG on 25 June 2006.

3.  He was reappointed as an aviation chief warrant officer two (CW2) in the NYARNG and executed an oath of office on 26 June 2006.  He completed the UH-60 Aviator Qualification Course from 28 January through 8 March 2008.

4.  On 7 April 2008, NYARNG published Orders 098-1009 awarding him primary military occupational specialty (PMOS) 153D (UH-60 Aviator) and withdrawing MOS 152B (OH-58 Scout Pilot (Reserve Component)), effective 8 March 2008. 

5.  On 8 April 2008, the NGB published Special Orders 93 AR awarding him PMOS 153D and withdrawing MOS 152B, effective 8 March 2008. 

6.  He entered active duty on 6 June 2008 and served in Iraq from 25 August to 26 December 2008.  He was assigned to Company A, 3rd Battalion, 142nd Aviation, Camp Delta, and served as a UH-60 Aviator.  He was honorably released from active duty on 25 September 2009.  

7.  He was honorably discharged from the ARNG on 19 January 2010 by reason of acceptance of appointment with another Armed Force, including the Reserve Component. 

8.  He was reappointed as a Reserve commissioned officer of the NYARNG in the rank of MAJ and executed an oath of office on 20 January 2010.  He was assigned to the 249th Medical Company (Air Ambulance).  He was transferred to the Combat Aviation Brigade, 42nd Infantry Division, on an unknown date.
9.  On 2 July 2010, the NYARNG published Orders 183-1037 transferring him from the Combat Aviation Brigade, 42nd Infantry Division, to Company F, 1st Battalion, 169th General Support Aviation Battalion, effective 2 July 2010, in accordance with State laws.  Additionally, on 19 September 2011, the NYARNG amended Orders 183-1037 to show the purpose of the transfer was due to the needs of the ARNG. 

10.  He provides multiple emails as follows: 

	a.  An email, dated 27 July 2008, wherein he asked an individual named Katie if he was eligible for the CW2 bonus.  A response from a SSG indicated everything looked good and that he would be eligible on 20 September (of an unknown year) once he completed the obligation from his affiliation bonus.  He was asked to see his unit regarding the written agreement and the BCN. 

	b.  An email, dated 26 January 2012, wherein the NYARNG Education Office Incentives Manager asked the applicant's unit's Human Resources (HR) Office to check their files for a copy of the CSRB Addendum.  The response, dated 26 January 2012, from the HR Office stated no one at the battalion or at the brigade level had this paperwork. 

11.  On 30 January 2012, the NYARNG published Orders 030-1063 honorably discharging him from the ARNG and transferring him to the Retired Reserve effective 30 January 2012.  The orders state "Officer wishes to be separated despite being owed a bonus." 

12.  On 30 January 2012, he was honorably discharged from the ARNG and he was transferred to the Retired Reserve. 

13.  On 8 February 2012, Joint Force Headquarters, NYARNG, issued him a Notification of Incentive Discrepancy and Exception to Policy Process memorandum.  The Education Services Officer advised the applicant that a discrepancy had been discovered concerning his bonus incentive that must be resolved to avoid termination.  The Warrant Officer CSRB Addendum for a $20,000 incentive could not be found. 

14.  On 22 March 2012, he requested an exception to policy for payment of said bonus.  A sworn statement shows the applicant stated that he was advised of the bonus while at the mobilization station, Fort Sill, OK.  He sent an email to the Education Office and the response came back that he was eligible for the bonus on 20 September 2011.  He completed the Addendum while in Kuwait but does not remember the exact date.  He received a $10,000 payment in the September/October 2008 timeframe.  He was supposed to receive the second payment in 2011 but no one could locate his Addendum. 

15.  On 30 July 2012, the NGB denied his request and instructed the Incentives Manager to terminate the incentive with recoupment.  An NGB official stated that in accordance with ARNG Implementation Guidance for the CSRB, dated 1 February 2008, eligible officers could receive the CSRB.  Although the applicant claims he signed a written agreement, a Bonus Addendum could not be located and he was paid the amount of $10,000.  The BCN was not requested until 30 September 2008 which appears to be after the date the bonus being claimed was executed.  In accordance with Department of Defense (DOD) Instruction 1304-29, as a condition of receiving the incentive, each recipient must sign a written agreement.  

16.  On 22 May 2014, by memorandum, NYARNG notified the applicant of the termination of his incentive with a recoupment of amount already paid.  On the same date, the applicant acknowledged receipt of the notification and indicated that he would supply supporting documentation to the NYARNG Education Office by the suspense date to support his disagreement with the validity of the debt. 

17.  The Principal Deputy Under Secretary of Defense for Personnel and Readiness approved payment of bonuses to ARNG and U.S. Army Reserve (USAR) officers who agree to serve in an active status for not less than 3 years in certain specialties designated as critical for the CSRB in accordance with Title 37, U.S. Code, section 32, authorizing a $20,000 bonus for specific skills designated as critical in the officer corps of the ARNG and USAR.  Headquarters, Department of the Army thereafter announced to all Army activities by message and formally notified the Director, NGB, of the designated critical skills.  The NGB published its guidance to all states in February 2008, reiterating the designated skills for the bonus.  In each announcement, selected specialties were designated as critical for the bonus. 

18.  An Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) Memorandum, dated 17 January 2008, announced approval of the RC CSRB for officers in the ARNG and USAR subject to Congressional reauthorization of Title 10, U.S. Code, section 323, and in compliance with announced ALARACT Message 299/2007.  The NGB and G-1 were advised that the Principal Deputy Under Secretary of Defense for Personnel and Readiness designated fewer than the requested areas of concentration as critical skills.



19.  ALARACT Message 007/2008, dated 18 January 2008, provided the ARNG and USAR policy for implementing and using the CSRB for ARNG and USAR officers.  The CSRB applies to ARNG officers who agree to serve for 3 years in an ARNG unit in selected specialties. 

20.  NGB Memorandum, dated 1 February 2008, announced the implementation guidance for the ARNG CSRB.  Officer Critical Skills are identified/listed.  MOS 153D (UH-60 Aviator) is listed. 

21.  Title 37, U.S. Code, section 303a(e), Special Pay – General Provisions, Repayment of Unearned Portion of Bonuses and Other Benefits When Conditions of Payment not Met, Termination of Entitlement to Unpaid Amounts, states:  

	a.  Except as provided in paragraphs (2) and (3), a member of the uniformed services who receives a bonus or similar benefit and whose receipt of the bonus or similar benefit is subject to the condition that the member continue to satisfy certain eligibility requirements shall repay to the United States an amount equal to the unearned portion of the bonus or similar benefit if the member fails to satisfy the eligibility requirements and may not receive any unpaid amounts of the bonus or similar benefit after the member fails to satisfy the requirements, unless the Secretary concerned determines that the imposition of the repayment requirement and termination of the payment of unpaid amounts of the bonus or similar benefit with regard to the member would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States. 

	b.  The Secretary concerned may establish, by regulations, procedures for determining the amount of the repayment required under this subsection and the circumstances under which an exception to the required repayment may be granted.  The Secretary concerned may specify in the regulations the conditions under which an installment payment of a bonus or similar benefit to be paid to a member of the uniformed services will not be made if the member no longer satisfies the eligibility requirements for the bonus or similar benefit. For the military departments, this subsection shall be administered under regulations prescribed by the Secretary of Defense.

22.  DOD 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 served in the ARNG as a warrant officer between 26 June 2006 and 19 January 2010.  As his records show, he held MOS 153D as of 8 March 2008.  He was mobilized from 6 June 2008 to 25 September 2009, during which he served in Iraq from 25 August to 26 December 2008.  

2.  He claims he signed a written agreement for the $20,000 critical skill retention bonus and received the initial payment of $10,000 in or around September 2008. However, neither he nor his unit could locate a written agreement promising him such incentive or laying out the rules regarding such incentive (such as termination with recoupment, termination without recoupment, and other conditions). 

3.  He was honorably discharged from the ARNG - as a warrant officer - on 19 January 2010.  Although he was appointed as a Reserve commissioned officer on 20 January 2010 and continued to serve as a commissioned officer through 30 January 2012, it does not appear he fulfilled the 3-year requirement in the critical MOS of 153D, as a warrant officer.  A written agreement would have spelled out the rules associated with a separation prior to completion of required service. 

4.  Had there been a written agreement, it would have reflected his agreement to serve in MOS 153D, designated as a critical skill, for a period of 3 years.  It would have also listed his eligibility and qualification as well as verification by a representative and a signature by a witnessing official.  The purpose of the CSRB was to retain Soldiers in selected specialties in a designated critical skill in order to support the ARNG in meeting critical manpower shortages.  As such, not every specialty was authorized a CSRB.  The key is to be fully qualified and serve in a designated critical skill MOS for the agreed timeframe.  

5.  From a statutory standpoint, the DOD's approval to pay selected specialties designated as critical was in accordance with the law (Title 10, U.S. Code, section 323).  The Office of the Under Secretary of Defense announced the policy and listed those military specialties.  The applicant's MOS (153D) was listed as a critical MOS but there is no indication he signed an agreement.  

6.  From a regulatory standpoint, the DA and subsequently the NGB implemented the policy.  Again, the applicant's MOS was listed as critical.  However, not only is there no written agreement but he also did not fulfill the
3-year requirement in the critical MOS.  

7.  From an equity standpoint, his honesty, service, and deployment are not in question.  The applicant was improperly paid the first installment; however, he was not made aware of that fact until several years later. 

8.  The Secretary of the Military Department concerned has the discretion to render a 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 it being contrary to a personnel policy or management objective or against equity and good conscience.  

9.  After careful review of the applicant's case, it is concluded that recoupment of the first installment should not be pursued.  However, it would not be equitable to pay him the second installment of the bonus.







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 records of the individual concerned be corrected by showing a request to waive the applicant’s debt based on the erroneous payment of the first $10,000.00 installment of the CSRB was approved and, if applicable, refunding any monies already 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 payment of the second half of the CSRB. 



      _______ _ 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)                                         AR20140010232



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ABCMR Record of Proceedings (cont)                                         AR20140010232



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