BOARD DATE: 30 April 2014 DOCKET NUMBER: AR20140002359 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 her military records to show she is authorized the reenlistment bonuses (REB) and student loan repayment program (SLRP) funds she received. 2. The applicant states she relied on the expertise of her recruiter and the California Army National Guard (CAARNG) incentives manager to ensure the amounts she received were correct. 3. The applicant provides copies of: * A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 23 February 2000 * An Annex R to DA Form 4836 (Reenlistment/Extension Bonus Addendum) dated 23 February 2000 * A DA Form 4836, dated 18 February 2003 * A Defense Finance and Accounting Service (DFAS) payment sheet * A DA Form 4836, dated 14 April 2006 * An Annex R to DA Form 4836, dated 14 April 2006 * Contract Actions * A National Guard Bureau Form 23B (Army National Guard Retirement Points History Statement), dated 26 March 2012 * A Memorandum for record, subject: Incentive Notice of Indebtedness, dated 13 November 2013 * A DFAS Military Leave and Earnings Statement for 15 November 2013 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. At the time of her application, the applicant was serving as a master sergeant, pay grade E-8 in the ARNG. 3. A DA Form 4836 and corresponding Annex R, both dated 23 February 2000, show the applicant executed her first 3-year enlistment extension and was authorized a $2,500.00 bonus payable in two equal payments. DFAS records show she received the first payment of $1,250.00 on 19 May 2000 and the second payment of an equal amount on 1 May 2003. 4. A DA Form 4836, dated 18 February 2003, provides a bonus control number indicating a bonus was offered. However, the corresponding Annex R is not available for review. 5. A DA Form 4836 and corresponding Annex R, both dated 14 April 2006, show the applicant executed a 6-year enlistment extension and was authorized a $15,000.00 bonus payable in a lump sum on the day the extension contract takes effect. However, DFAS records show she received the bonus in two payments of $7,500.00 on voucher dates of 28 April 2006 and 6 May 2009. 6. On 13 November 2013, the applicant wrote in a memorandum for record her request to be forgiven her indebtedness resulting from overpayments of her REB. She contended that she did not do anything that was fraudulent. a. She explains that she did not receive the REB when it was granted in 2003. When she reenlisted in 2006, she was told she would be eligible for another REB, but she refused. Her recruiter made an inquiry about her REB for 2003. Her nonpayment was recognized and she was told her payments would be made in two installments a few weeks apart. She did not remember what the REB was supposed to be for 2003. With this clarification, she agreed to reenlist for both the REB and SLRP. b. On 28 April 2006, she received a payment that she assumed was the first installment of the 2003 REB. c. On 19 May 2006, she received a payment she assumed was either the first disbursement for her 2006 REB, or the second installment of her 2003 REB. d. On 24 May 2006, she received a payment she believed was either the first or second disbursement of her 2006 REB. e. On 24 August 2007, she received a payment she initially believed to be incorrect. She was not expecting any payments until April 2009. She called the incentives manager, who did some research and assured her that everything was in order and that this payment was due her. f. On 6 May 2009, she received a payment that was processed by the Texas ARNG (TXARNG). She had just returned from deployment and did not realize this was an REB payment. Furthermore, the TXARNG was not aware of what REB payments had been processed by the CAARNG. g. She explains, in regard to her SLRP paperwork, that she had asked her recruiter about the need for an SLRP addendum. She was told that this program was automatic and did not need any additional paperwork. No one at State was available at the time to confirm this. Therefore, she elected to trust the recruiter and went ahead with the re-enlistment. A few months later she called the incentives manager about the SLRP payments. At that time she was informed that there should have been an additional addendum. She was informed that the form would be sent to her for signature, which she did. Afterward, the SLRP payments began. She contends that if the incentives manager had just said it was too late, she would have done things differently. 7. In the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer), Washington DC. The opinion states the applicant requested relief from the recoupment of an REB and SLRP offered at the time of her reenlistment in the CAARNG. a. The CAARNG is recouping overpayments on an REB based on the fact that the applicant did not have supporting documentation in her records. She received $40,000.00 in REB payments over a 12-year period of service. However, only $19,500.00 is supported by REB contracts. The remaining $20,500 in payments cannot be tied to legitimate contracts. b. The applicant received duplicate REB payments on 19 and 24 May 2006 totaling $15,000.00. She also received on 22 August 2007 an REB payment of $7,500.00 as a later payment for her REB in 2003. However, she was only authorized a payment of $2,500.00. Therefore, she was overpaid $5,500.00. These two overpayments equal the $20,500.00 debt for the REB. c. In regard to the SLRP recoupment, the CAARNG is recouping $6,000.00. The applicant was eligible for the SLRP but there are issues concerning the lack of an addendum in her file. The addendum was signed by the applicant but was not dated. She executed her extension on 23 April 2006 but the addendum is a 1 October 2006 version. This clearly shows that the applicant could not have signed the form at the time of her extension. It was determined that the reason for the applicant's delay was her move from California to Texas on the day she executed her extension. The retention noncommissioned officer did not have the correct form. The incorrect form was later sent to the applicant for signature after she had settled in Texas. This appears to have been an administrative error on the part of the CAARNG Incentives Program Manager. d. The opinion recommends the applicant be granted relief from the $6,000.00 recoupment for SLRP, but no relief of any part of the $20,500 in unauthorized REB payments. 8. On 13 March 2014, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. 9. In a memorandum for this Board, dated 10 April 2014, the Legal Assistance Officer (LAO), CAARNG, responded to the advisory opinion on behalf of the applicant. a. With regard to the recommendation to grant relief from the SLRP recoupment, the LAO agreed. b. With regard to the recommendation to deny relief for the unauthorized payments of REB, the LAO disagreed and requested this Board grant her relief the entire amount. c. The LAO argued that the applicant had relied on the expertise of the CAARNG Incentives Manager and the "CA USPFO" office, both of whom were integral in approving the payments. He contends it is against equity and good conscience to recoup from a Soldier, 5 years later, when the Soldier did nothing wrong and placed her trust in the CAARNG Incentives Manager and the "CA USPFO" office. It is not in the best interest of the United States to recoup from Soldiers in cases like this. The purpose of incentives is to entice Soldiers to join or rejoin the military to increase or sustain the military force. If Soldiers become aware that the government can come back 5 years later and recoup the incentives that were paid through no fault of their own, then Soldiers will be less likely to join or rejoin the military; thereby, undermining the very purpose of incentives. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that her military records should be corrected to show she is authorized the REB and SLRP funds she received. 2. The available evidence shows that the applicant had extended her enlistment contract in 2003 and again in 2006. The evidence also shows she received unauthorized payments which exceeded the total contracted amount of REB. She admits that she initially thought she received unauthorized payments but says she was reassured by the CAARNG Incentives Manager that the payments were correct. Unfortunately, there is no corroborating documentation showing that the CAARNG Incentives Manager, or anyone else in authority at the CAARNG, has taken responsibility for making this mistake. 3. The LAO, CAARNG argues that recoupment of the applicant's REB would be inequitable and undermine the very purpose of the incentive program. There is no dispute concerning the importance of the incentive program and its effect on maintaining the military force. However, the contention that the applicant is without fault in this case is not fully accepted. Due to the size of the error, totaling $20,500, the applicant knew or should have known that she had received a double payment of her 2006 REB and almost three times the amount of her 2003 REB. She should have been more diligent in her pursuit of verifying her REB payments. 4. A review of the applicant's case clearly shows that the applicant was not at fault for any of the administrative errors that occurred in the processing of her SLRP. Accordingly, her records should be corrected to show she was provided the correct addendum and that she had signed and dated the document within the acceptable timeframe. Furthermore, the recoupment of the $6,000.00 in SLRP funds should be cancelled. Any funds that may have already been recouped should be properly refunded, either to her, if appropriate, or to the lenders of record. 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 records of the Department of the Army and State Army National Guard of the individual concerned be corrected by: a. showing she properly and timely completed her reenlistment/extension contract, to include the addendum for the Student Loan Repayment Program; and b. terminating any ongoing recoupment action and refunding, if needed, out of ARNG funds, any recoupment of these monies that may have already occurred, that is related to this correction of records. 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 granting relief of that portion of the recoupment pertaining to the Reenlistment/Extension Bonus overpayment. _______ _ 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) AR20140002359 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140002359 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1