IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20160002636 BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20160002636 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. amending the applicant's records to show the National Guard Bureau cancelled recoupment of the previously received reenlistment/extension bonus monies; and b. terminating all ongoing recoupment actions and refunding, if necessary, all previously recouped monies related to the applicant's receipt of a portion of the REB. ___________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. IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20160002636 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, in effect, correction of his records to show entitlement to a $15,000 reenlistment/extension bonus (REB) that he contracted for as a member of the California Army National Guard (CAARNG), and termination of all ongoing recoupment actions. 2. The applicant states his reenlistment contract is not present. He reenlisted in 2005 for 6 years and a $15,000 REB. The CAARNG Incentives Task Force ordered recoupment of bonus funds after 9 years had passed. a. Extensions were uploaded to his records that were backdated to a month before his previous expiration term of service (ETS) date. At the time of his ETS, he was on Active Duty for Operational Support (ADOS) orders that were only extended for one month because his reenlistment was not completed on time. As a result, his orders were not extended beyond his ETS date. b. The incentives task force found the bonus control number (BCN), but still recouped his bonus because the contract was not in his record. He reenlisted for 6 years to receive the bonus that his recruiter told him he was eligible to receive. As a specialist (SPC)/E-4, he knew nothing about Army regulations and trusted that his recruiter and State Incentives Manager were in compliance. c. The State Incentives Manager was found guilty of misappropriation and sentenced to 30 months in prison. The State Military Department is recouping the bonuses of Guardsmen who have served their terms in good faith. The fraudulent practices of the program director and/or improper oversight of the program should not negate the service that a Soldier has performed, nor release the CAARNG from its obligation to honor their part of the agreement. 3. The applicant provides: * Orders 273-567, issued by CAARNG on 30 September 2005 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 12 October 2005 * Orders 286-1010, issued by CAARNG on 13 October 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 November 2005 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Following prior service in the ARNG and Regular Army, the applicant enlisted in the CAARNG on 5 November 2003 for a period of 2 years. 3. He served a period of active duty from 22 February through 4 November 2005. 4. On 12 October 2005, he executed a DA Form 4836, wherein he extended his service in the CAARNG for a period of 6 years. In doing so, his past ETS date of 4 November 2005 was reestablished as 4 November 2011. 5. The applicant's records do not contain an REB Addendum that reflects his eligibility for a $15,000 REB corresponding to his extension on 12 October 2005. Regardless, he received an REB payment on 15 November 2005. 6. On 21 September 2010, he was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant (2LT)/O-2. He is currently serving in the ARNG in the rank/grade of captain (CPT)/O-3. 7. In the processing of this case, an advisory opinion was obtained on 10 August 2016, from the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA. The advisory official opined: a. Approval recommended. (1) On 12 October 2005, CPT [Applicant], then an SPC, reenlisted for 6 years in conjunction with REB, BCN R0510061CA. A copy of the REB Addendum was never placed in his official interactive Personnel Electronic Records Management System (iPERMS) record. According to the Guard Incentives Management System (GIMS), he has an active contract with a start date of 4 November 2005, an end date of 3 November 2011, and one lump sum $15,000 (REB) paid on 15 November 2005. (2) He was released from active duty on 4 November 2005, though his reenlistment contract was signed on 12 October 2005. For unknown reasons, the reenlistment contract was back-dated and he was allowed to serve in a traditional status, not on active duty. (3) The State Incentives Manager at the time, Master Sergeant (MSG) Jxxxx (was subsequently incarcerated for incentives fraud) authorized one lump sum payment of $15,000 to the Soldier on 12 October 2005. In accordance with Fiscal Year (FY) 2006 Selected Reserve Incentive Program (SRIP) Policy Guidance for 1 October 2005 - 30 September 2006 (Policy Number 06-02), 4 October 2005, 5.f(1), "The ARNG will offer a bonus of $15,000 payable (in a) lump-sum upon the date of extension for a 6 year extension." Within paragraph 5, recoupment guidance is not provided or any context referencing the situation that occurred to recoup the applicant's bonus. (4) Recommend approval for CPT [Applicant] to retain his REB without recoupment due to the extension of his enlistment contract for 6 years and his continued service in the CAARNG in good standing, and the fact that he ultimately became a commissioned officer. Under the provisions of the Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, "Any individual who enters into a written agreement that contains specified conditions for receipt of a bonus, special pay, educational benefit, or stipend is entitled to the full amount of the pay or benefit if the individual fulfills the conditions for that pay or benefit." (5) This advisory opinion was coordinated with the NGB Incentives Branch. b. The CAARNG did not provide a comment on this recommendation. 8. On 15 August 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: Department of Defense Instruction (DODI) Number 1205.21 (Reserve Component Incentive Programs Procedures) prescribes policy and procedures for management of the Reserve components incentive programs to include the REB. a. Paragraph 6.2 states as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member. b. Paragraph 6.9.3 states recoupment is not required in instances where an incentive is terminated after the member accepts an AGR position or a military technician position where membership in a Reserve component is a condition of employment, and member has served at least 6 months of the incentive contract following receipt of the initial incentive payment. DISCUSSION: 1. The applicant's request for entitlement to a $15,000 REB, which he contracted for as a member of the CAARNG, and termination of all ongoing recoupment actions was carefully considered. 2. The applicant extended in the CAARNG for 6 years on 12 October 2005, thereby establishing a new ETS date of 4 November 2011. Despite the absence of a signed REB Addendum, the State Incentives Manager authorized a $15,000 payment, which the applicant received on 15 November 2005. 3. The applicant acted in good faith and continues to serve as a commissioned officer, nearly 4 years after he completed his Selected Reserve incentive contract term. An NBG advisory official has opined that relief is appropriate in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002636 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002636 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2