RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 March 2006
      DOCKET NUMBER:  AR20050011736


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Robert D. Morig               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant's spouse, on behalf of the applicant, requests that the
debt established to recoup her Career Status Bonus (CSB) be cancelled and
that she be refunded the monies repaid to date.

2.  The applicant's spouse, on behalf of the applicant, states the
applicant received a CSB in 2002 while an Active Guard Reserve (AGR) member
of the Mississippi Army National Guard (MSARNG).  The applicant resigned
from the MSARNG effective 6 June 2004 and mobilized with her Tennessee ARNG
(TNARNG) unit effective 7 June 2004.  Prior to her resignation, the MSARNG
Human Resources office advised her that an active duty to active duty (AGR
to mobilization status) transfer would not result in recoupment of the CSB.

3.  The applicant's spouse provides, on behalf of the applicant, a general
power of attorney; a DD Form 2839 (Career Status Bonus (CSB) Election); a
Request for Personnel Action; an email dated 1 June 2004; an NGB Form 22-5-
4-E (Addendum to DD Form 4) dated 6 June 2004; release from active duty
orders dated 11 June 2004; reassignment orders dated 23 March 2001; the
applicant's DA Form 2-1 (Personnel Qualification Record); the applicant's
DD Form 214 (Certificate of Release or Discharge from Active Duty) for the
period ending         6 June 2004; active duty orders dated 25 August 2004;
and reassignment orders dated 27 August 2004.

4.  The applicant's spouse also provides, on behalf of the applicant, a
letter from the Defense Finance and Accounting Service – Denver Center
(DFAS-DE)  dated 7 October 2004; a letter to DFAS-DE dated 13 October 2004;
a letter   from DFAS-DE dated 4 November 2004; two letters, dated 10
November 2004 and 1 December 2004, to DFAS-DE; an email from the National
Guard Bureau (NGB) dated 10 January 2005; a letter from DFAS-DE dated 14
January 2005; a letter to DFAS-DE dated 21 January 2005; a DD Form 2789
(Waiver/Remission of Indebtedness Application); a letter from DFAS-DE dated
14 February 2005; a letter to Congressman T___ dated 22 February 2005; and
a letter from DFAS-DE to Congressman T___ dated 12 May 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in Operation Iraqi Freedom.

2.  The applicant enlisted in the ARNG on 27 March 1987.  She entered
active duty in an AGR status with the MSARNG on 1 May 1989, apparently
under Title 32, U. S. Code.

3.  On 5 August 2003, the applicant completed a DD Form 2839 and elected to
receive the CSB.  In item 12, she agreed to remain on continuous active
duty subject to Service regulations until she attained a minimum of 20
years of such service.  If she failed to complete such service, she
understood that she would be required to repay a share of the total bonus
payment in proportion to the amount of service she failed to complete
compared to the additional service she agreed to serve.

4.  On 6 June 2004, the applicant transferred to the TNARNG.

5.  Effective 6 June 2004, the applicant was released from active duty in
her  AGR status in pay grade E-7.  Her DD Form 214 for the period ending 6
June 2004 erroneously shows she was released from active duty under the
provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges),
paragraph       2-5 with an erroneous separation code (SPD) of "MND
(separation for miscellaneous/general reasons under the provisions of Army
Regulation         600-8-24, paragraph 2-5 or 2-11)."

6.  Joint Force Headquarters, Mississippi National Guard Orders 163-105
dated 11 June 2004 released the applicant from active duty in an AGR status
effective 6 June 2004 in a Title 10, U. S. Code status.

7.  Joint Force Headquarters, Tennessee National Guard Orders 238-442 dated
25 August 2004 ordered the applicant to active duty as a member of her
Reserve Component unit in support of Operation Iraqi Freedom and she would
enter active duty upon reporting to the unit's home station.  The orders
listed her report date to the home station as 7 June 2004.

8.  By letter dated 7 October 2004, DFAS-DE notified the applicant
recoupment was required for the unearned portion of her CSB.  An attachment
to the letter indicated her date of separation was 6 June 2004.

9.  By letter dated 4 November 2004, DFAS-DE informed the applicant her CSB
was recouped because she received the bonus while serving on active duty
with the MSARNG.  The bonus was paid for performance on active duty for the
MSARNG and as such was posted to her active duty pay account.  However, she
transferred to a Reserve Component of the TNARNG and she was being paid on
the Reserve pay account system, not the active duty pay system, even though
she was being mobilized by her current unit.

10.  In an email from NGB dated 10 January 2005, the applicant was informed
that the law requires that DFAS recoup the CSB if the service member
involved is no longer entered into a written contract that would allow the
service member to attain 20 years of active federal service.  In her case,
the enlistment AGR contract with the MSARNG was terminated and thus
terminated the CSB election contract.  The fact she changed to Title 10
active duty effective 7 June [2004] did not give her a contractual
agreement to get 20 years of active Federal service.  The only enlisted
contract she has is a traditional enlistment as an ARNG member.  Had she
not left the AGR program or transferred to the TNARNG AGR program, she
would have maintained an agreement that would likely result in     20 years
of active federal service and qualified for the CSB.

11.  By letter dated 14 January 2005, DFAS-DE informed the applicant the
separation code listed on her DD Form 214 for the period ending 6 June 2004
required recoupment of the unearned portions of a separating member's
bonus.  The letter also informed her that the MSARNG had not sent DFAS
paperwork stating they had transferred authority of her bonus to the
TNARNG.  Even though she joined a unit that was immediately mobilized
following her discharge from active duty, she was no longer on the active
duty pay component.  She was now paid under the Reserve Component pay
system.  Those two pay systems are treated separately and operated under
different guidelines and regulations, regardless of the fact that she and
her unit have been placed on active duty.  The letter also informed her
there was no guarantee that her unit would continue to be mobilized before
she was able to serve 20 years on active duty.

12.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, NGB.  The advisory opinion recommended approval of
the applicant's request as it appears DFAS's recoupment action was
incorrect because the applicant did not have a break in active duty.  NGB's
Administrative Law Section had reviewed the advisory opinion.  The
Administrative Law Section agreed that the applicant's transition from a
Title 32 AGR position to a Title 10 program does not represent a break in
active duty.

13.  A copy of the advisory opinion was provided to the applicant for
comment.  She concurred with the advisory opinion.

14.  Conversation between the Board analyst and DFAS – Indianapolis Center
(DFAS-IN) indicated the reason the applicant's CSB is being recouped is
because their records show that she originally came on active duty on 7
June 2004; however, at some point her active duty entry date was changed to
11 June 2004, thereby indicating she had a break in service.  DFAS – IN
indicated that the applicant's SPD had nothing to do with the recoupment of
her CSB.

15.  On 1 February 2006, the TNARNG certified that the applicant entered
active duty with the TNARNG [on 7 June 2004] with no break in service.
16.  Title 32, U. S. Code, section 322 (Special pay:  15-year career status
bonus for members entering service on or after August 1, 1986) states the
Secretary concerned shall pay a bonus under this section to an eligible
career bonus member if the member elects to receive the bonus and executes
a written agreement (prescribed by the Secretary concerned) to remain
continuously on active duty until the member has completed 20 years of
active-duty service.

17.  Army Regulation 635-5-1 prescribes the specific regulatory
authorities, reasons for separating Soldiers from active duty, and the SPD
codes to be entered on the DD Form 214.

18.  Army Regulation 135-178 establishes policies governing the
administrative separation of enlisted Soldiers from the Army National Guard
of the United States (ARNGUS) and the U. S. Army Reserve.  It applies to
ARNGUS Soldiers in an AGR status serving on full-time National Guard duty
under Title 32. U. S. Code.  The only reason for separation provided for in
this regulation that "fits" the applicant's situation is "Secretarial
Plenary Authority."

19.  Army Regulation 635-5-1 does not list any SPD that corresponds to an
Army Regulation 135-178 separation authority.

DISCUSSION AND CONCLUSIONS:

1.  According to U. S. Code, Title 32, section 322, the only two things an
eligible career bonus member needs to do to receive the CSB is to elect to
receive the bonus and to execute a written agreement to remain continuously
on active duty until the member has completed 20 years of active-duty
service.  The applicant elected to receive that bonus and she entered into
the required written agreement when she signed the DD Form 2839.

2.  The law does not require the member to enter into an enlistment
contract to be eligible for the bonus, and the law does not require the
member to be paid under the active duty pay account system versus the
Reserve pay account system to be eligible for the bonus.  After having
entered into the written agreement, the law merely requires the member to
remain continuously on active duty until the member has completed 20 years
of active-duty service without regard to whether the active duty is
performed in "this" status or "that" status.

3.  According to DFAS-IN, the problem with the applicant is not that her
SPD is wrong or that she is now being paid under the Reserve pay account
system and not under the active duty pay account system.  The problem is
that her pay account, which originally reflected she entered active duty on
7 June 2004 (i.e., with no break in service), was changed to show she
entered active duty on        11 June 2004 (i.e., with a 5-day break in
service).

4.  It cannot be determined what action triggered the change.  It appears,
from the new date of 11 June 2004, that the Joint Force Headquarters,
Mississippi National Guard Orders 163-105, dated 11 June 2004, might have
triggered the change.  This might have been compounded when Joint Force
Headquarters, Tennessee National Guard Orders 238-442, which stated the
applicant would enter active duty on 7 June 2004, were not issued until 25
August 2004.

5.  In any case, the TNARNG has verified that the applicant in fact entered
active duty with their organization on 7 June 2004, with no break in
service after her release from active duty with the MSARNG on 6 June 2004.

6.  Therefore, the applicant's records should be corrected to show she
entered active duty with the TNARNG on 7 June 2004, thereby making her
eligible to retain her CSB unless and until her active duty service is
interrupted by a later break in service.

7.  Although it is acknowledged the SPD on the applicant's DD Form 214 for
the period ending 6 June 2004 is incorrect, there is no SPD listed in the
governing regulation for a Soldier who separated under her circumstances.
The applicant certainly should not be penalized for an administrative
anomaly in the governing regulations concerning separation authorities and
SPD codes especially when DFAS-IN and the law agree the SPD code is not the
governing factor in retention or recoupment of a CSB.

BOARD VOTE:

__js____  __ym____  __rdm___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that the
State Army National Guard records and the Department of the Army records of
the individual concerned be corrected by:
     a.  amending Joint Force Headquarters, Mississippi National Guard
Orders 163-105, dated 11 June 2004 to show they were issued on 6 June 2004;


     b.  amending Joint Force Headquarters, Tennessee National Guard Orders
238-442, dated 25 August 2004 to show they were issued on 7 June 2004; and

     c.  showing the applicant transferred from a Title 32, U. S. Code
active duty status to a Title 10, U. S. Code active duty status with no
break in active duty service, making her eligible to retain her CSB at this
time and making her eligible for repayment of any recoupment of her CSB
that may have already occurred.




                                  ___John Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011736                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060321                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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