IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140021496 


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 an exception to policy (ETP) for payment of the remaining $10,000.00 of his Critical Skills Retention Bonus (CSRB) and relief from recoupment of the portion already paid.

2.  The applicant states:

* he was in an eligible position and eligible for the CSRB in 2008 and the necessary documents were sent to his headquarters and he was paid the first half of the bonus
* he inquired about the unpaid portion of the bonus years later and he was informed that a records review was initiated after the bonus trouble in California and it was determined that he was ineligible for the CSRB
* he was told he was ineligible because when his paperwork left the State it listed him in an ineligible position
* he was later informed that not only was he not going to receive the second half of his CSRB but that the initial CSRB payment was going to be recouped
* he was moved from a non-qualifying position to a qualifying position the day he signed his bonus agreement and his record had not been completely updated when the State sent the bonus paperwork forward
* he made attempts to correct the error through his State to no avail



3.  The applicant provides:

* Officer Record Brief
* Massachusetts Army National Guard (MAARNG) Orders 336-006, dated 1 December 2008
* CSRB Agreement
* All Army Activities (ALARACT) Message 007/2008, dated 18 January 2008, subject:  Temporary Policy Message Providing Implementation Guidance for Use of New CSRB for ARNG Officers and Warrant Officers and U.S. Army Reserve (USAR)
* Military Personnel (MILPER) Message 07-237, dated 11 September 2007, subject:  Implementation of the Army Officer Menu of Incentives Program (Regular Army)

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service in the Regular Army and the MAARNG, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant effective 27 July 1992 in area of concentration (AOC) 11A (Infantry) and granted Federal recognition.

2.  On 20 December 1994, he was discharged from the MAARNG due to resignation and assigned to the USAR Control Group (Reinforcement).

3.  On 1 October 1996, he was promoted as a Reserve commissioned officer to the rank of first lieutenant in the USAR Control Group (Reinforcement).

4.  On 14 December 1996, he was appointed as a first lieutenant in the MAARNG.

5.  On 14 December 2001, he was released from the USAR Control Group (Reinforcement) and appointed as a first lieutenant in the MAARNG.

6.  On 23 January 2002, he was granted Federal recognition with an effective date of 14 December 2001 for the purpose of transfer from the USAR.

7.  MAARNG Orders 38-9, dated 7 February 2006, reassigned him to a cavalry unit in an AOC 19C (Armor) position.  On 31 May 2006, orders were issued reassigning him from the AOC 19C position to an AOC 11A position with an effective date of 23 May 2006.

8.  MAARNG Orders 152-32, dated 1 June 2006, promoted him to captain with an effective date of 1 June 2006.  These orders show his promotion and date of rank would be the date the Chief, National Guard Bureau (NGB), extended Federal recognition.

9.  On 8 June 2006, the applicant requested a delay of promotion.

10.  On 13 June 2006, he was promoted as a Reserve commissioned officer in the rank of captain in the ARNG of the United States.  He was also extended Federal recognition on the same date.

11.  On 8 August 2006, he was ordered to active duty for a period not to exceed 545 days in AOC 11A.

12.  On 21 August 2008, the applicant executed a CSRB agreement and acknowledged:

* he had 6 or more years and not more than 12 years of commissioned service from his date of commission
* he would continue to serve in an AOC/military occupational specialty (MOS) designated as a critical skill for a period of 3 years from the date of the agreement
* he was eligible for a $20,000.00 CSRB 

13.  His CSRB agreement:

* is not signed or dated by the service representative or witnessing official
* does not show a valid or eligible AOC

14.  On 1 December 2008, he was reassigned from an S-1 AOC 19C position to an AOC 11A position.

14.  On 21 October 2010, he was promoted to the rank of major.  He was granted Federal recognition on 3 February 2011.

16.  On 29 February 2012, NGB denied the applicant's ETP request and directed the State Incentive Manger to terminate the incentive with recoupment.

17.  On 23 March 2015, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  NGB recommended partial relief by denying payment of the remaining $10,000.00 CSRB and waiving recoupment of the $10,000.00 already paid.  He further stated:

	a.  The applicant had accumulated over 16 years of commissioned service when he signed the CSRB addendum.

	b.  CSRB implementation guidance in ALARACT Message 007/2008 stated National Guard officers must have no less than 6 and no more than 12 years of commissioned service from the date of commission to be eligible for the CSRB.  The applicant exceeded the limit by at least 4 years and should have been ineligible to receive the CSRB.

	c.  The applicant was the only person to sign the CSRB addendum on 21 August 2008.  No service representative or witnessing official signed or dated the addendum.  Department of the Army guidance, dated 17 February 2009, states NGB must deny any ETP if a government official and/or the officer has not signed the agreement but may waive recoupment if monies have been paid as provided for in the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 26 February 2009, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends.

	d.  Section VII of the CSRB addendum states the Soldier may be subject to recoupment action if he or she becomes an unsatisfactory participant, voluntarily transfers to a non-critical skill AOC/MOS, or fails to become AOC/MOS qualified within 24 months.  The applicant did not meet any of these criteria, suggesting any monies paid are not subject to recoupment.

	e.  The applicant received orders assigning him to AOC 11A from non-qualifying AOC 19C on 12 December 2008, but the orders were effective 21 August 2008.  Excluding his 16 years of commissioned service making him ineligible when he signed the CSRB addendum on 21 August 2008, the applicant would have been in a qualifying AOC 11A position on the day he signed.  The applicant attended the Armor Captain Career Course, he was never Federally recognized as an Armor officer, and he was never awarded the 19-series AOC.

	f.  The bonus control number was requested and approved by the MAARNG on 21 October 2008 and the applicant received one payment of $10,000.00 less taxes of a $20,000.00 program amount.  A bonus control number should not have been approved based on his ineligibility.

	g.  The MAARNG concurs with the advisory opinion.

18.  On 25 March 2015, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

19.  His records are void of and he failed to provide evidence showing he was awarded the AOC 19C.

20.  ALARACT Message 007/2008, dated 18 January 2008:

	a.  provided policy guidance for implementing the new CSRB for ARNG officers and stated the purpose of the policy was to retain qualified commissioned officers who possessed critical skills;

	b.  included AOC 11A;

	c.  required officers to hold the rank/grades of captain/O-3; and

	d.  required officers to have no less than 6 years or more than 12 years of commissioned service.

21.  MILPER Message 07-237, dated 11 September 2007, announced the implementation of the Fiscal Year 2007/2008 Office Menu of Incentives Program.  This was a temporary program designed to increase retention among officers with specific skills and experiences.  The menu of incentives was eligible to Regular Army captains initially accessed on active duty in selected branches.  Tier I incentives ($25,000.00) applied to captains initially accessed in Air Defense, Engineer, Finance, Quartermaster, Signal, and selected Medical Services officers.  Tier II incentives ($30,000.00) applied to captains initially accessed in Adjutant General, Armor, Chemical, Military Police, and Ordnance officers.  Tier III ($35,000) applied to captains initially accessed as Aviation, Field Artillery, Infantry, Military Intelligence, and Transportation officers.  The incentive is taxable in accordance with state and Federal tax laws and is dependent upon the officer’s tax status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an ETP for payment of the remaining $10,000.00 of his CSRB and relief from recoupment of the portion already paid was carefully considered.

2.  Although he argues he was eligible for the CSRB and paid half of the bonus, his CSRB agreement was not signed or dated by the service representative or witnessing official.

3.  ALARACT Message 007/2008 shows AOC 11A as an eligible AOC; however, ARNG officers had to have less than 12 years of commissioned service.  The applicant was commissioned in 1992 and had well over 12 years of service at the time he executed his CSRB addendum.  Therefore, he was ineligible for the CSRB.

4.  His CSRB addendum was processed and he was erroneously paid half of the bonus.  As a matter of justice and equity, he should not be held liable for an erroneous payment and any recoupment should be waived.  However, since he was not eligible for the CSRB, he should not be paid the remaining CSRB balance.  Therefore, his records should be corrected as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing an exception to policy for him to retain the $10,000.00 CSRB already paid was submitted and approved,

	b.  voiding establishment of any debt, and

	c.  reimbursing payments against the voided debt already paid, if any, by the applicant.

2.  The Board further determined 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 paying him the remaining balance of his CSRB agreement.



      ___________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)                                         AR20140021496



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140021496



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1