BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160013138 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ ___x_____ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160013138 BOARD DETERMINATION/RECOMMENDATION: 1. 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 records of the individual concerned be corrected by: a. showing he is authorized to retain the first payment of the CSRB in the amount of $10,000; and b. refunding all monies that may have already been recouped as a result of the first payment in accordance with his CSRB agreement. 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 authorizing payment of a CSRB in excess of $10,000.00. ___________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. BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160013138 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 correction of his military records to show entitlement to a critical skills retention bonus (CSRB) in area of concentration (AOC) 19C (Cavalry). 2. The applicant states he was initially given the Army National Guard (ARNG) CSRB effective 1 February 2008. When he signed the agreement on 2 February 2008, his AOC of 19C qualified for the $20,000.00 bonus. The Critical Officer AOC list was dated 16 June 2007 - 31 March 2008. However, there was a memorandum, dated 1 February 2008, that contains a list that does not show AOC 19C as a critical skill that qualified for the bonus. Neither he nor the human resources representative was aware of the change when signing the CSRB agreement. The witnessing officer was also unaware of the change. He received the first payment of $10,000.00, but he did not receive the second half of the bonus. He argues that he is entitled to receive the additional payment because his contract was signed by all parties based on the original critical officer AOC list showing AOC 19C as a qualifying AOC for the bonus. 3. The applicant provides a: * Memorandum, subject: ARNG Implementation Guidance for the ARNG CSRB, dated 1 February 2008 with the Officer Critical Skills List attached * Critical Officer and Warrant Officer AOC Lists: 10 August 2007 – 31 March 2008 * CSRB Written Agreement, signed on 2 February 2008 * Memorandum, subject: Acknowledgement of Officer Service Agreement, dated 2 February 2008 * Unit Manning Roster, 107th Cavalry Regiment, page 1 of 3, dated 31 July 2008 * Personnel Data Query Screen Print, dated 31 July 2008 * Memorandum for the Ohio ARNG, subject: Request for Exception to Policy (ETP), dated 11 September 2015 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. When the applicant submitted this application he was serving in an active status in the Ohio ARNG, in the rank of lieutenant colonel, pay grade O-5. 3. On 6 August 2004, the applicant was promoted to captain, pay grade O-3. 4. The Critical Officer AOC List for the period 10 August 2007 through 31 March 2008 listed AOC 19C as a qualifying AOC for the CSRB. 5. ARNG Implementation Guidance for the ARNG CSRB, dated 1 February 2008 with Officer Critical Skills List attached no longer listed 19C as a qualifying AOC. 6. The applicant's Officer/Warrant Officer Written Agreement - Army Reserve Components CSRB was signed on 2 February 2008 and indicates that: a. he understood each of the requirements for a CSRB; b. a service representative certified the applicant met the eligibility requirements for a CSRB; c. a witness signed the statement verifying that he had seen the reading and signing of the documents by the applicant and the certifying representative; and d. his CSRB was $20,000 for service in AOC 19C. 7. On 2 February 2008, the applicant signed a memorandum wherein he acknowledged he had incurred a 3-year contractual obligation, beginning immediately, as a result of acceptance of a CSRB. 8. On 15 September 2015, the Deputy, Personnel Programs, Resources and Manpower Division, NGB, disapproved the applicant's request for an ETP for the CSRB. The disapproval was based on the applicant's AOC not qualifying as an authorized critical skill. The State Incentive Manager was to terminate the CSRB with recoupment. REFERENCES: The purpose of the Selected Reserve CSRB is to retain Soldiers who are assigned to either a Modified Table of Organization and Equipment unit; or to a deployable Table of Distribution and Allowance unit in a designated critical skill in order to support the ARNG in meeting critical manpower shortages. It will have a direct impact on retention of Soldiers assigned to these units in a designed critical skill. DISCUSSION: 1. The applicant contends that his military records should be corrected by showing entitlement to a CSRB in the amount of $20,000 in AOC 19C because he signed the agreement in good faith. Furthermore, the human resources representative and witnessing officer did not know about the change that occurred the day prior. 2. The available documentation shows the applicant’s AOC was removed from the critical skills list effective the day prior to the applicant signing his contract. Because the applicant received the first $10,000.00 payment, it is very reasonable to believe that the deletion of his AOC from the critical skills list was not known by the parties involved in processing the CSRB agreement. 3. There is no evidence of intent on anyone’s part to defraud the government in this case. 4. Apparently, prior to delivery of the second payment of the CSRB, it had become known that AOC 19C was no longer considered a critical skill, and no additional payments were made. 5. The evidence would support a recommendation to allow the applicant to retain the first payment (and to have any recouped monies returned to him) with no further payments made. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013138 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013138 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2