IN THE CASE OF:    

		BOARD DATE:  29 September 2015	  

		DOCKET NUMBER:  AR20150000083 


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 defers to his military counsel.

2.  Counsel requests correction of the applicant’s military records to show he was authorized the reenlistment/extension bonuses (REB) and student loan repayment program (SLRP) funds he received.

3.  Counsel states, in effect, that the applicant relied on the knowledge and expertise of the recruiter and the incentives manager.  The applicant substantially performed the requirements of each contract, even while in the Inactive National Guard (ING).  Therefore, in the interest of justice and equity, he should be permitted to retain the entirety of both his REBs and the SLRP.

4.  Counsel provides a memorandum, subject:  ABCMR (Army Board for Correction of Military Records) Appeal for [Applicant]; e-mail correspondence; enlistment documents, bonus addendums, military orders, incentive audit forms, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  On 18 October 2001, the applicant, while still a member of the Regular Army with more than 9 years of prior active service, enlisted in the California Army National Guard (CAARNG) for 1 year.  On 13 December 2001, he was released from active duty and accessed to the CAARNG the following day.  He was serving as a warrant officer in the CAARNG at the time of his appeal.

2.  His record contains a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) completed on 22 November 2003.  This form shows the applicant, with one previous extension (presumably for 1 year), extended his CAARNG enlistment for a period of 3 years establishing his expiration term of service (ETS) date as 13 December 2006.  

   a.  His Official Military Personnel File (OMPF) is void of documentation showing he extended to receive the REB incentive.
   
   b.  A DA Form 2-1 (Personnel Qualification Record - Part II) shows that at the time of his extension he was serving the CAARNG in military occupational specialty (MOS) 13F (Fire Support Specialist). 

3.  CAARNG Orders 17-1029, dated 17 January 2006, show he was released from his unit and assigned to the ING.

4.  CAARNG Orders 156-1033, dated 5 June 2006, show he was released from the ING and assigned to a 13R (Field Artillery Firefinder Radar Operator) duty position effective 5 June 2006, not duty MOS qualified (DMOSQ).

5.  On 13 December 2006, the applicant was discharged from the CAARNG per CAARNG Orders 26-1086 due to not having reenlisted or having extended his enlistment prior to his ETS date.

6.  A DA Form 4836, dated 19 January 2007, shows on that date that he extended his ARNG enlistment for a period of 6 years, establishing a new ETS date of 13 December 2012.  His OMPF contains an incomplete extension bonus addendum.  It is void of an SLRP addendum.

7.  On 31 January 2007, his discharge orders were revoked. 

8.  CAARNG Orders 311-1041, dated 6 November 2008, show he was released from his unit and assigned to the ING effective the same date.

9.  CAARNG Orders 33-1088, dated 2 February 2010, show he was released from the ING and assigned to a 35F (ASAS Master Analyst) duty position effective 1 December 2009.  The orders show he was not DMOSQ.

10.  He accepted an appointment as a warrant officer one (WO1)/W-1 in the CAARNG on 31 May 2012.

11.  He provides three memoranda, issued by the National Guard Bureau (NGB), U.S. Property and Fiscal Office for California, dated 22 February 2013, subject:  Incentive Notice of Indebtedness (NOI), Ref TL#20123051RC, which show that as the result of a CAARNG Incentives Task Force audit the applicant was found to be indebted to the U.S. Government as follows: 

	a.  ineligible for the $6,000.00 SLRP because he did not have sufficient loan documentation on file and he was not DMOSQ as a 13R at time of contracting;

	b.  ineligible for the $15,000.00 REB due to no supporting documentation on file to substantiate incentive received; and

	c.  ineligible for the $1,250.00 partial payment (of a $2,500.00 REB) due to no supporting documentation on file to substantiate incentive received.  Page 3 of what appears to be the recommendation/summary remarks, states that the applicant could correct the erroneous pay or entitlement by providing documentation.  It further provides that the applicant extended on 22 November 2003 in MOS 13F and does not have an incentive contract.  A bonus control number was requested on 9 December 2003.  The applicant was DMOSQ at the time of the extension.  He received a payment of $1,250.00 on 15 January 2004. He needed to provide a bonus contract to determine eligibility.

12.  On 14 December 2006, the applicant requested an exception to policy (ETP) to retain his $15,000.00 REB.  On 7 June 2013, the NGB denied his request and notified the applicant that his incentive would be terminated with recoupment.  The official cited numerous discrepancies to include:  

* received payment or was contracted above the amount authorized for the incentive
* exceeded the authorized period of non-availability in the ING and/or failed to extend for the period of non-availability within the required time period upon returning to an active status
* contact/bonus addendum is missing signature date from the Soldier and missing signature from the Service Representative
* contract/bonus addendum was signed before the reenlistment/extension documents

13.  His ARNG Retirement Points History Statement shows that he was assigned to the ING on two occasions:  17 January 2006 to 4 June 2006 and 6 November 2008 to 30 November 2009.  There is no documentation showing he extended his contractual obligation either time to account for the inactive service as required to remain eligible for an REB.

14.  In connection with the processing of this case, an advisory opinion was provided by the Deputy, Personnel Policy Division, NGB, recommending approval of the applicant’s request for an ETP.

	a.  The advisory official recommended relief from recoupment of the applicant’s SLRP in the amount of $6,000.00, contracted on 19 January 2007.  The official stated that the applicant was not at fault for the incomplete addendum.  Furthermore, he was not at fault for having incomplete extension documents during the holiday season as he was solely dependent on the expertise of his verifying service representative to make sure the packet was completed accurately.

   b.  Regarding the relief from recoupment of $1,250.00 of his $2,5000.00 REB payment, the advisory official stated that the applicant did not have a written agreement but was eligible for the incentive in accordance with the ARNG Selected Reserve Incentive Program (SRIP) 04-01 policy guidance.  A bonus control number (BCN) for $1,250.00 was requested on 9 December 2003 and he received payment on 15 January 2004.  The fact that a BCN was created indicated that there was a source document to prompt this, presumably a contract addendum.  Therefore, he was not at fault for the lack of a contract addendum.
   
   c.  Regarding his $15,000.00 REB contracted on 19 January 2007, the official stipulated that should the Soldier be granted relief and allowed the incentive, recoupment should be effective the date he entered the ING on 6 November 2008.  The applicant signed an enlistment extension for a period of 6 years (establishing an ETS date of 13 December 2012) and a bonus addendum for $15,000.00.  However, the bonus addendum was not dated.  The applicant received payments of $7,500.00 on 29 December 2006 and 29 June 2007.  On 19 January 2008, he completed his first year of the enlistment incentive contract term.  He transferred to the ING on 6 November 2008 and remained in the ING until 30 November 2009.  He was appointed as a warrant officer on 8 November 2012 (sic), 5 years and 10 months after the enlistment extension.  SRIP 07-04, paragraph 6b, states termination without recoupment occurs when the Soldier “accepts a commission or appointment as an officer or warrant officer in the ARNG after having served more than one year of the enlisted incentive contract term.  NOTE: Participation in an ARNG approved Officer Candidate Program or Warrant Officer Candidate Program is not cause for termination.”  The NGB identified no addendum and an ETP was denied by the ARNG G1 on 7 June 2013.

15.  The applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  He did not respond in the time allotted.
16.  He provides several documents in support of his application, including the following:

	a.  two Incentive Task Force Audit Forms which found discrepancies pertaining to his $2,500.00 and $15,000.00 REBs.

	b.  two appeals addressed to the ABCMR requesting the applicant be granted relief from recoupment of erroneous payments totaling $22,250.00.  As of 
27 January 2014, the applicant had repaid $4,420.30.  In the appeal presented by the Soldiers Incentives Assistance Center Commander, Joint Force Headquarters, CAARNG, he noted that there was no evidence of fraud on the part of the applicant.  He further stated that the applicant did not extend within the proper time frame to receive the $15,000.00 REB, the bonus addendum was not dated or signed by a verifying service representative, and the applicant was in a non DMOSQ 13R position at the time of extension.  The applicant's only favorable action is relief from recoupment.

17.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) sets policies and procedures for the administration of ARNG incentive programs. It requires completion of applicable incentive addenda on the date a Soldier establishes incentive eligibility by enlisting, extending, or accepting a commission.

18.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, stated a member shall not be eligible to receive any further incentive payments, except for service performed before the termination when they separate from a Selected Reserve (SELRES) unit for any reason.  Separation includes, but is not limited to discharge or transfer to the IRR, ING, Standby, or Retired Reserve.  Paragraph 10-7 states that:

	a.  Reinstatement and resumption of subsequent incentive payments following a period of authorized nonavailability is not guaranteed.  Soldiers who complete a period of nonavailability and request reinstatement of eligibility for incentives and resumption of subsequent payments must—

        (1) Complete the period of authorized nonavailability within the required time limit in paragraph 10-6 of this regulation.
   
        (2) Rejoin an existing vacancy in the SELRES authorized the Soldier’s grade and specialty in a bonus-authorized unit, or a bonus authorized specialty.
   
        (3) Extend their contract, enlistment, or reenlistment agreement, within 90 days after completing the period of nonavailability, in order to serve out the full incentive contract period in the SELRES.  This is provided the unit reenlistment officials have access to the Soldier’s personnel records and are able to verify the Soldier’s eligibility to extend.
   
   b.  A Soldier who does not comply with all of the requirements in paragraph a, above, will be subject to termination of incentives with recoupment action required.
   
   c.  A Soldier who complies with all requirements listed in a above will be entitled to payments resumed on the adjusted anniversary date of satisfactory creditable SELRES Service provided funding is available.
   
   d.  Paragraph 10-9 states that recoupment is authorized when a Soldier does not return from an authorized period of nonavailability (such as the ING) within the time limit or fails to extend for the amount of time needed to complete the contractual military Service obligation on return from an authorized period of nonavailability.

19.  Department of Defense Instruction 1340.23, subject:  Waiver Procedures for Debts Resulting from Erroneous Pay and Allowances, states:

	a.  Generally, persons who receive a payment erroneously from the Government acquire no right to the money.  They are bound in equity and good conscience to make restitution.  If a benefit is bestowed by mistake, no matter how careless the act of the Government may have been, the recipient must make restitution.  A waiver is not a matter of right.  It is available to provide relief as a matter of equity, if the circumstances warrant.  

	b.  A waiver usually is not appropriate when a recipient knows, or reasonably should know, that a payment is erroneous.  The recipient has a duty to notify an appropriate official and to set aside the funds for eventual repayment to the Government, even if the Government fails to act after such notification.

	c.  Debts may be waived only when collection would be against equity and good conscience and would not be in the best interests of the United States.  There must be no indication the erroneous payment was solely or partially the result of the fraud, misrepresentation, fault, or lack of good faith of the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received an overpayment of his SLRP and REBs.  The available evidence shows in regards to the: 

	a.  Partial payment of $1,250.00 of his $2,500.00 REB (3-year commitment), dated on 22 November 2003, that if a valid bonus addendum were available that the applicant was otherwise initially likely eligible to receive the REB incentive.  However, because his bonus contract addendum was not filed in his OMPF and the applicant was unable to provide a valid bonus addendum, the incentive was subject to recoupment.  The fact that he received a partial payment is sufficient evidence to presume that a source document existed.  The applicant was, however, assigned to the ING from 17 January 2006 through 4 June 2006 and did not extend his contract for the period of nonavailablitity.  As such, it appears it would be appropriate to waive only so much of the recoupment of this money covering the period in which he served in an active status in a unit.  A prorated portion for the period of nonavailability in the ING from 17 January 2006 through 4 June 2006 should be recouped.

   b.  SLRP of $6,000.00, dated 19 January 2007, that the applicant was not DMOSQ because he was in a 13R position at the time of his antedated extension of enlistment.  Therefore, it appears he was never eligible to contract for the SLRP or receive payments toward any eligible student loans.  Furthermore, even if he had been eligible for the SLRP, he was not eligible for more than a maximum payment of $3,000.00 in that he was assigned to the ING prior to being eligible for would have been a second SLRP anniversary (13 December 2008) payment.  While it appears that these administrative errors can be attributed to unit administrative personnel and the State Incentive Manager and were not the fault of the applicant, the applicant should have known that he was not eligible for a second anniversary payment.  Therefore, recoupment of only $3,000.00 should be waived.
   
   c.  REB of $15,000.00, dated 19 January 2007 (6-year extension of enlistment) that similar administrative errors which included contracting after his ETS date, missing dates and signatures on the bonus addendum, and that the applicant was in a non-DMOSQ position at the time of his extension.  Despite these incomplete documents and his ineligibility for the REB, the applicant received the full bonus amounts in two installments in 2006 and 2007.  Also, during this period of enlistment the applicant was assigned to the ING from 6 November 2008 through 30 November 2009.  SRIP guidance states that a member shall not be eligible to receive any further incentive payments, except for service performed before the termination when they separate from the ARNGUS for any reason.  Based on this guidance the applicant was required to extend his enlistment within 30 days of reassignment from the ING to an active status in a unit for an additional period equal to the time spent in the ING or have the incentive terminated with recoupment effective the date he transferred to the ING.  As such, it would only be appropriate to waive recoupment of the prorated portion of the REB covering the period 13 December 2006 through 5 November 2008.
   
2.  Considering all of the evidence in this case and the NGB recommendation, it would be appropriate to grant so much of the requested relief as shown below.

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 and State Army National Guard records of the individual concerned be corrected by correcting his record to show a waiver of the recoupment of overpayment associated with his SLRP and REBs as shown below:

* $3,000.00 (initial SLRP anniversary payment)
* Prorated portion of $1,250.00 for the time he served prior to his assignment to the ING on 17 January 2006
* Prorated portion of $15,000.00 for the time he served prior to his assignment to the ING on 6 November 2008

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 waiving recoupment of:

* $3,000.00 (second SLRP anniversary payment)
* Prorated portion of $1,250.00 for the time he was assigned to the ING (17 January 2006-4 June 2006)
* 
Prorated portion of $15,000.00 bonus for the time he was assigned to the ING (6 November 2008-20 November 2009)




      ___________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)                                         AR20150000083



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ABCMR Record of Proceedings (cont)                                         AR20150000083



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