IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150006004 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 records to reflect his entitlement to an officer accession bonus (OAB) in the amount of $10,000 and cancellation of any recoupment actions. 2. The applicant states: a. He received the bonus fairly and upheld his end of the agreement. Someone in California destroyed all the paperwork pertaining to many Soldiers in the State of California National Guard (CAARNG) and they do not have a copy of the contract. b. On 14 June 2013, the applicant received notification from the CAARNG which stated that he owed the government $10,000.00 from an OAB that was erroneously paid to him. The CAARNG stated that he was not eligible to receive the OAB because the bonus addendum could not be found and therefore, there was no proof of a written contract. c. On 15 May 2007, he was commissioned as a Warrant Officer (WO) in the CAARNG. Immediately after commissioning, he attended Aviation WO Basic Course until 16 October 2008. After returning from his basic course, he began talking to a WO recruiter about receiving a commissioning bonus. The recruiter stated that he was eligible to receive a $10,000.00 OAB and sent him the written contract addendums to sign. He signed and submitted the documents to the recruiter; however he did not receive the OAB until May 2009, when he received two installments of $5,000.00. d. Notwithstanding the fact that a written contract was not found, he was eligible to receive the OAB at the time of his commissioning. According to the ARNG Selected Reserve Incentive Program (SRIP) for fiscal year (FY) 2007, a newly commissioned WO is eligible to receive $10,000.00 OAB if the officer meets eligibility requirements. e. He agreed to serve for no less than 6 years on an active drilling status, and he fulfilled that commitment on 15 May 2013. f. He commissioned into a military occupational specialty (MOS) 153D (UH- 60 Pilot), which was on the critical officer area of concentration (AOC) list. He did not accept his commission for the purpose of qualifying for employment in as a military technician (MILTECH) or in an Army National Guard (ARNG) position. Finally, he did not receive any other educational benefits. g. The fact that the bonus addendum could not be furnished should not automatically bar him from receiving the bonus. According to the Department of Defense (DOD) memorandum entitled “Repayment of Unearned Portions of Bonuses, Special Payment and Educational Benefits or Stipends”, the Secretary of the Army may relieve a service member from repayment if recoupment is contrary to personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States. h. In his case, he served the terms of the agreement by honorably serving as an WO in the CAARNG. He was completely eligible to receive the bonus at the time of his commissioning. i. He went through the proper channels to receive the bonus. He should not be punished for the CAARNG’s inadequate record keeping. To recoup the OAB would be against equity and good conscience. 3. The applicant provides: * Joint Force Headquarters, Office of the Adjutant General, CAARNG Memorandum, subject: Denied ETP Request – OAB ($10,000.00) * CAARNG Memorandum, subject: Second Review Request for Exception to Policy (ETP) for OAB * Headquarters, CAARNG Memorandum, subj: Request for Documentation Your Incentive(s) * Incentives Task Force (ITF) Bonus Audit Form * National Guard Bureau (NGB) 337 – Oaths of Office * Emails from recruiter * Defense Finance and Accounting Service (DFAS) Payments * NGB Memorandum, subj: ARNG SRIP Guidance for FY 2007, 1 January 2007 – 31 March 2007 (Policy Number 07-04) * Memorandum for Assistant Secretary of the Army (M&RA), subj: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends CONSIDERATION OF EVIDENCE: 1. On 15 May 2007, he was appointed as a WO1 in the CAARNG. 2. The applicant successfully completed the Aviation WO Base Course (WOBC) on 16 October 2008. Item 5 (Specialty/MOSC [Military Occupational Specialty Code]) of his DA Form 1059 (Service School Academic Evaluation Report) shows the entry "153D" (UH-60 Pilot). 3. He provides an email in which the WO Strength Manager states “…you only qualify for the $10,000.00 accession bonus.” 4. The applicant states he received two installments of $5,000.00 in May 2009. 5. An ITF Bonus Audit Form, dated 2 May 2013, shows the applicant was fully eligible to contract, but was not eligible to receive payment because he was missing a bonus addendum. The audit form shows a bonus control number (BCN) of "O08120001CA". The form further shows he was paid $5,000.00 on 6 May 2009 and $5,000.00 on 8 May 2009. 6. A review of his records failed to reveal a Written Agreement, OAB Addendum, which reflected his entitlement to a $10,000 OAB. 7. On 14 June 2013/14 July 2013, Headquarters, CAARNG issued a memorandum stating an audit of the applicant's incentive payments revealed a discrepancy, in that no contract was found resulting in his payment being a violation of federal law and NGB policy. The recoupment amount listed was $10,000. The memorandum stated he could provide the supporting documentation or request an ETP. Failure to submit an ETP or provide the requested supporting documentation to substantiate his request for ETP may result in immediate termination and/or recoupment of his incentive. 8. The applicant submitted an ETP request; however, on 16 July 2014, his request was denied by the Joint Force Headquarters, Office of the Adjutant General, CAARNG, Soldier Incentives Assistance Center (SIAC). They stated, “in reviewing your records, it was determined that a total certified debt for $10,000 was submitted to DFAS on or about 07 AUG 13, which is something that cannot be corrected by a NGB ETP, per DOD [Financial Management Regulation] FMR Volume 7A C[hapter] 50, Volume 5 CH 28, and [Army Regulation] AR 37-104-4 C[hapter’s] 2- and 32. In addition, it was determined that the bonus in question violated Title 37 United States Code (U.S.C.) Sec[tion] 332 para[graph] (d) something that cannot be corrected by an NGB ETP. Your only recourse is to submit a claim to the Army Board for Correction of Military Records…” 9. On 5 December 2014, the CAARNG SIAC responded to a second request for an ETP for the OAB. They stated, “[s]ince the debt was established prior to submission of the ETP request, ARNG no longer has the authority to release the debt. [The applicant] may seek relief based on guidance received in the notification letter from the Debt Collection Office (DCO).” 10. During the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB. The NGB official recommended approval of the applicant's request for relief from recoupment of a $10,000 OAB. a. The official stated according to a CAARNG memorandum dated 24 June 2015, a BCN for $10,000.00 OAB was requested on 5 December 2008, more than one year after Soldier was appointed a WO. The State Incentives Manager validated and approved the BCN on 8 December 2008. Per Information Management and Reporting Center (iMARC), the BCN was effective the date of Soldier’s appointment. In May 2009, $10,000.00 was disbursed to the Soldier in two installments of $5,000.00. b. Per SRIP 07-04 (Extension), in order to be eligible for the $10,000.00 OAB, inter alia, Soldier must be a newly appointed WO; Soldier must agree to serve in a critical skill AOC for a period of not less than 6 years on active drilling status; Soldier must not accept appointment as a WO for the purpose of qualifying for employment in the MILTECH or Active Guard Reserve (AGR) Program; Soldier must not receive and will not receive benefits during the period of service for which contracted, e.g., Student Loan Repayment Plan (SLRP). c. The CAARNG SIAC determined he was fully eligible to contract for this incentive but Soldier was not eligible for payment based upon the fact that he does not appear to have contracted for this incentive. d. Email correspondence provided by the Soldier indicates he probably signed and submitted the necessary bonus addendum and contract, but these documents appear to have been lost or improperly handled by CAARNG Incentives personnel. e. Moreover, although Soldier was otherwise eligible for payment under SRIP 07-04 (Extension), since the BCN for this incentive was requested more than one year after Soldier was appointed, he was not a newly appointed officer at the time the BCN was requested. Therefore, Soldier failed to meet the eligibility requirements for payment set forth in the SRIP. However, it should be noted that Soldier satisfactorily served in AOC 153D for a period of not less than 6 years in active drilling status, thus fulfilling his duty requirement in accordance with the SRIP. 11. On 8 July 2015, an advisory opinion was received and forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. 12. On 13 August 2015, the applicant responded to the advisory opinion and agreed with the contents. 13. Title 37, U.S. Code, section 373(b) (1), states "Discretion to provide exception to termination and repayment requirements. –Pursuant to the regulations prescribed to administer this section, the Secretary concerned may grant an exception to the repayment requirement and requirement to terminate the payment of unpaid amounts of a bonus, incentive pay, or similar benefit if the Secretary concerned determines that the imposition of the repayment and termination requirements with regard to a member of the uniformed services would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interest of the United States." 14. Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNG and U. S. Army Reserve incentive programs. The SRIP incentive is offered to newly-accessed officers who met eligibility criteria and accessed into an officer specialty listed in the SRIP, for the period in which commissioned. 15. ARNG Policy Number 07-04 established policy to administer the ARNG SRIP for the period 1 January 2007 – 31 March 2007, and ARNG Policy Number 07-04 (Extension) for the period 16 June 2007 to 31 March 2008. AOC 153D was listed on the Critical Skills List in effect at the time. The ARNG offered two OAB options to newly commissioned officers who agreed to serve in the ARNG for 6 years. Applicants must sign their bonus addenda on or before their commissioning date and meet the following pertinent eligibility criteria. * agree to serve for a period of not less than 6 years in an active drilling status * agree to serve in a critical skill AOC as defined by the ARNG * not accepting an appointment as an officer for the purpose of qualifying for employment in the MILTECH or AGR program * not receiving a commission or appointment with a subsequent assignment to a Table of Distribution and Allowances unit * commissioned officers who branch transfer into another branch are not authorized to receive the OAB DISCUSSION AND CONCLUSIONS: 1. There is no evidence of an OAB addendum for the applicant. The CAARNG ITF audited the applicant's records and was unable to locate and the applicant did not provide an OAB addendum in connection with his 15 May 2007 commissioning into the CAARNG. The audit documents do show a bonus control number. The CAARNG ITF Commander states the applicant was fully eligible to contract. 2. Evidence shows the applicant was paid $10,000 in two installments of $5,000.00 in 2009 for an OAB indicating there should have been a contract available at the time. The record shows the applicant was trained in and awarded a bonus-eligible AOC (153D) and served in that AOC listed on the critical AOC list in effect at the time. Evidence shows he has otherwise complied with the terms the SRIP policy in effect at the time. 3. The ARNG Personnel Policy Division, ARNG Incentives Branch, and CAARNG support granting him relief from recoupment of the $10,000 OAB. 4. Therefore, in the interest of equity it would be appropriate to grant the applicant relief by ceasing all recoupment actions related to his $10,000 OAB and repaying him any monies already collected. BOARD VOTE: ___X_____ ___X_____ ____X____ 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 all Department of the Army and ARNG records of the individual concerned be corrected by: * showing he and all authorized officials executed an OAB addendum in the amount of $10,000 in a timely manner and that the addendum was processed * based on the aforementioned, cease all recoupment actions and refund any monies already recouped _______ _ _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) AR20140007516 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006004 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1