BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150012899 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: 12 January 2017 DOCKET NUMBER: AR20150012899 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: * terminating the applicant's $15,000 reenlistment bonus incentive, dated 7 January 2006, effective 29 September 2006 and recouping a prorated portion of this incentive * showing the applicant signed a valid officer accession incentive on 30 September 2006 that authorized a $10,000 bonus * showing the applicant signed a valid Student Loan Repayment incentive addendum on 30 September 2006 authorizing him payment of $22,745 worth of approved and eligible student loans 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 retaining the entire reenlistment bonus incentive for which he signed on 7 January 2006 and 3 February 2006. ____________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: 12 January 2017 DOCKET NUMBER: AR20150012899 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 in the form of relief from recoupment of a $41,342.62 debt for past incentive bonuses in the California Army National Guard (CAARNG) * 2003 Reenlistment/Extension Bonus (REB) of $2,500 * 2006 Reenlistment/Extension Bonus of $15,000 (later recoupment reduced to $13,333.33) * Student Loan Repayment Program (SLRP) payments totaling $13,842.62 from 2007-2009 * 2008 Officer Accession Bonus (OAB) of $10,000 2. The applicant states: a. He was eligible to receive all bonuses due to meeting eligibility requirements at the time of signing for the bonuses, reenlistment in an MTOE (Modified Table of Organization and Equipment) unit, maintaining duty military occupational specialty qualification (DMOS) for his positions, in a valid position, and meeting service time requirements. Furthermore, an audit and re-audit performed by the CAARNG Incentive Task Force (ITF) resulting in a decision to recoup his incentives was based on several erroneous assertions made by the auditors which have been disproven. b. In addition, State recruiters at the time of contract offered him these incentives based on his eligibility according to regulations current at the time in exchange for his continued service. He fulfilled all agreements in good faith with his command and Warrant Officer recruiting, and as a result of these contracts has served more than 12 additional years including a deployment in support of Operation Iraqi Freedom (OIF) as well as 3 1/2 years as a full time warrant officer during the Global War on Terror. Recouping his incentives due to ministerial defects, audit failures, and improper conduct of other State officials is unjust. 3. The applicant provides * ITF Notice of Indebtedness for the REB and SLRP, dated 4 January 2013 * Notification of Bonus Incentive Termination, dated 4 September 2014 * Bonus Audit Forms Email exchange regarding his recoupment summary * Correction to Response to Notice of Indebtedness * Response to Incentives Notice of Indebtedness, dated 12 January 2013 * Memorandum for Record (MFR), dated 8 February 2013, Subject: Incentives Payment Eligibility * MFRs, dated 1 January 2013 and 7 July 2013 (REB and SLRP) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 7 January 2006 and 5 February 2003 * Annex R (Reenlistment/Extension Bonus Addendum, ARNG), dated 7 January 2006 and 3 February 2006 * National Guard Bureau (NGB) Form 337 (Oaths of Office), dated 30 September 2006 * ARNG Fiscal Year 2006 (FY 06) Selected Reserve Incentive Program (SRIP) Policy Guidance for 27 January 2006 to 31 May 2006 * Memorandum, dated 18 December 2006 from the CAARNG Incentives Manager * DD Form 2475 (DOD Educational Loan Repayment Program (LRP) Annual Application) * Extract of Title 10, U.S. Code (USC), section 16301 * Printout from the Federal Bureau of Investigation website regarding the CAARNG former incentives manager * Orders 58-1005 awarding primary military occupational specialty (PMOS) 97E (Interrogator) * Re-audit of REB, dated 7 September 2012 * Title 37, U.S. Code, section 308 Special Pay Affiliation Bonus Policy, dated 7 August 2015 * Orders 257-1051, dated 13 September 2004; Orders 339-1016, dated 5 December 2002; and Orders 346-1024, dated 12 December 2006 * Orders 312-1006, dated 7 November 2006 * Special Orders Number 292 AR, dated 20 November 2008 * NGB Form 23B (ARNG Retirement Points History Statement) * DA Forms 1059 (Service School Academic Evaluation Report) * DA Form 638 (Recommendation for Award) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Appointment memorandum * Bonus Incentives Documentation * SLRP Information * Discharge orders from enlisted status and appointment orders in the ARNG * Reassignment orders as a warrant officer CONSIDERATION OF EVIDENCE: 1. The applicant was born in August 1976. He previously served as an enlisted Soldier in the Regular Army from 26 May 1995 to May 1998. He held MOS 11M (Fighting Vehicle Infantryman). 2. He enlisted in the CAARNG for a 4-year term on 18 May 1998. He completed Phase I of MOS 97E (Interrogator) from 2 to 14 August 1999 and Phase II of this MOS from 16 August to 28 August 1999. 3. He entered active duty for training (ADT) on 30 August 1999 and completed training in Chinese Mandarin as a foreign language associated with MOS 97E. He was honorably released from ADT on 5 January 2001 to the control of the CAARNG. He was assigned to Company C, 223rd Military Intelligence (MI) Battalion, Glendale, CA. 4. On 27 February 2002, Office of The Adjutant General, CAARNG, published Orders 58-1005 awarding him PMOS 97E and withdrawing PMOS 11M, effective 26 February 2002. The orders stated: Duty Position Qualified: NO; Duty MOS: 97L2O; Paragraph 445, Line 03. 5. He entered active duty on 10 February 2003 and subsequently completed 11 months and 13 days of foreign service in Kuwait/Iraq, with C Company, 223rd MI Battalion. He was honorably released from active duty on 8 April 2004. 6. On 7 September 2003, the applicant executed a 3-year extension in the CAARNG. His DA Form 4836 is not filed in his records. He would later provide a copy of this form as part of his response to the audit. This extension did not contain any incentives, options, or addenda. 7. On 13 September 2004, Joint Forces Headquarters, CAARNG published Orders 257-1051 releasing him from the position of Human Intelligence Collector with Company A, 223rd MI Battalion, and transferring him to the position of Translator/Interpreter with Company B, 223rd MI battalion, effective 13 September 2004. He was assigned to Paragraph 333, Line 03, in Unit Identification Code (UIC) WRVRA0, in DMOS 97L2L. 8. On 7 January 2006, he executed a 6-year extension in the CAARNG. In connection with this extension, he signed Annex R (Reenlistment/Extension Bonus Addendum) on 7 January 2006 and on 3 February 2006. Annex R is signed by him and a service representative. It was also assigned a Bonus Control Number (BCN). 9. The Annex that was signed on 7 January 2006 (and is filed in his official records) indicated: * he is qualified in the MOS to which he was assigned and held the rank/grade (or one below) for the position * he was not extending/reenlisting for an Active Guard Reserve (AGR) or Military Technician tour * he would receive a total of $15,000 for a 6-year reenlistment/extension; $5,000 would be paid in one lump sum on the date his reenlistment or extension takes effect * bonus incentive would be terminated if he accepted appointment as a warrant officer after he has served 1 year or more of Selected Reserve service under this agreement; recoupment is not required 10. The Annex that was signed on 3 February 2006 (and is not filed in his records but was later provided by the applicant in response to the CAARNG ITF audit) indicated: * he is qualified in the MOS to which he was assigned and held the rank/grade (or one below) for the position * he was not extending/reenlisting for an Active Guard Reserve (AGR) or Military Technician tour * he had less than 14 years of total military service and he was extending for 3 years within 90 days of his current expiration term of service (ETS) date * for an initial 3 years extension, he would receive a total bonus of $2,500, half of which would be paid upon extending and the other half upon completion of 3 years * bonus incentive would be terminated if certain conditions occurred 11. On 22 March 2006, CAARNG published Orders 81-1005 attaching him to the 2nd Cadet Company, Obispo, CA. He was honorably discharged from the ARNG (as an enlisted member) on 29 September 2006 to accept appointment as a warrant officer of the CAARNG. He was issued an NGB Form 22 that captured his ARNG service. 12. He was appointed as a Reserve warrant officer of the Army and the CAARNG and executed an oath of office on 30 September 2006. In connection with this appointment, he signed a Written Agreement for the OAB. This agreement is not filed in his records but was later provided by the applicant in response to the CAARNG ITF audit. The agreement states: * he agreed to serve in the Selected Reserve for 6 years in a critical skill that is designated for bonus entitlement by the Secretary of the Army * he is not currently receiving any financial assistance and will not receive any during the period of this agreement * the bonus accrues beginning on the date of this agreement is accepted and the total amount would be fixed * he would receive a bonus of $10,000 paid in one lump sum upon successful completion of warrant officer basic course * the agreement spelled out the rules associated with suspension and termination, with and/or without recoupment 13. The applicant and Master Sergeant (MSG) To-- Ja-- (the former State Incentives Manager) signed this agreement and it was assigned a Bonus Control Number (BCN). 14. He attended and successfully completed the MI Warrant Officer Basic Course and/or Human Intelligence Collection Course. He was awarded MOS 351M (Human Intelligence) and he was assigned to the 223rd MI Battalion. 15. He completed the Human Intelligence Certification Course from August 2008 to September 2009 and he was promoted to chief warrant officer two (CW2) on 12 November 2008. 16. He entered active duty for Operational Support –Reserve Component (ADOS-RC) on 16 February 2009. He was honorably released from active duty on 30 September 2012. 17. On 14 May 2012, Headquarters, CAARNG notified the applicant that the CAARNG conducted an audit of his incentives and noted a discrepancy. The OAB, REB, and SLRP incentives contained several discrepancies, requiring recoupment of $41,342.62. 18. Months later, the U.S. Property and Fiscal Office (USPFO) for California advised him that they had conducted an audit of his incentives. On 4 January 2013, the USPFO notified the applicant via memorandum: a. The CA National Guard ITF has found him to be indebted to the U.S. Government for the REB incentive. The reason for his ineligibility was that he extended on 7 January 2006 for UIC WRVRBO in MOS 97E. He contracted for the six year $15,000 REB. He was not duty MOS qualified at time of extension. He had orders showing that he was in a 97L position but held the MOS of 97E. He received $15,000 lump sum on 22 June 2006. He commissioned as a warrant officer on 30 September 2006. The USPFO recommended settlement category 3B. The applicant was subject to recoupment, he was not eligible at the time of extension; he was non-DMOSQ. Under the authority of Title 37, USC, Section 1007 (37 U.S.C. § 1007), the USPFO for California has taken action to collect this debt through salary deductions in accordance with the Department of Defense Financial Management Regulation (DODFMR) Volume 7A, Military Pay Policy and Procedures. If the applicant had any pertinent supporting documentation that could negate all or part of this debt, he could address this issue with the CAARNG ITF. The maximum allowable rates of salary deduction of disposable pay for overpayments are 67 percent of disposable pay if determined cause was the fault of the member and 20 percent of disposable pay if determined cause was not the fault of the member. b. The CA National Guard ITF also found him to be indebted to the U.S. Government for the SLRP incentive. The reason for his ineligibility was that he did not have an SLRP addendum on file and he was not DMOSQ at time of extension. He was in a 97L position but held the MOS of 97E. He also did not submit valid loan documents. Between 2006 and 2009, the SLRP incentive paid $9,754.46 to Nelnet and $4,088.16 to University Acct. The total amount was $13,842.62. Under the authority of 37 U.S.C. § 1007, the USPFO for California has taken action to collect this debt through salary deductions in accordance with the DODFMR Volume 7A. If he had any pertinent supporting documentation that could negate all or part of this debt, he could he could address this issue with the CAARNG ITF. The maximum allowable rates of salary deduction of disposable pay for overpayments are 67 percent of disposable pay if determined cause was the fault of the member and 20 percent of disposable pay if determined cause was not the fault of the member. 19. On 12 January 2013, the applicant responded to the CAARNG ITF. He acknowledged receipt of the Notification of Indebtedness, dated 4 January 2013 via certified mail, totaling $38,842.62, and stated that the audit may have been conducted based on missing or unclear information such as him not being Duty MOS Qualified, never having incentive contracts, and misapplication of a law covering incentive payments. He hoped to clear up those matters: a. The original reason the ITF contacted him through a memorandum, dated 14 May 2012, was to inform him that $41,342.62 of incentive payments would be recouped because the State had no contracts covering these payments and that payment was made in violation of DOD guidance. He subsequently provided copies of all contracts in his possession and these documents were used to help reconstruct his contract and incentive payment history with the CAARNG. b. The debt for a $15,000 REB on 7 January 2006 states that the reason for his ineligibility is that he was non-DMOSQ at the time of extension because he was in a 97L position; yet held the MOS of 97E. He was in fact DMOS qualified, he was in a 97E position, and he was eligible for this reenlistment bonus. Orders 339-1016 awarded him the MOS 97E20 effective 5 December 2002. A copy of his unit's MTOE showing the slot his bonus was based on (333/03) was a 97E2L slot. An excerpt from AR 614-200 (Enlisted Assignment and Utilization Management), paragraph 3-14, clearly states that the fifth letter of the MOS Code is the Special Qualification Identifier (SQI) and that the SQI for linguist is the letter "L." The fifth letter of the MOSC does not have anything to do with the MOS 97L (Counterintelligence Agent). This means that his MOSC for slot 333/03 that reads "97E2L" which reads "Ninety Seven Echo Two Lima" means 97E (Human Intelligence Collector) at skill level "2" who is a linguist. It appears that the SQI for linguist included as the fifth letter in his MOSC has been mistakenly confused with the 97L MOS and is being used to claim that he was non-Duty MOSQ. c. This debt also states that he contracted for a 6 year $15,000 reenlistment bonus; however the recoupment amount is stated as $25,000 with no explanation as to why $25,000 is being recouped for a $15,000 bonus. It is unclear where the additional assessment of $10,000 for this bonus came from. d. In response to a debt of $13,842.62 for SLRP payments, the stated reason for recoupment includes "does not have a SLRP addendum on file, was not DMOSQ at time of extension, was currently in a 97L position but held the MOS of 97E, and did submit valid loan docs..." He has already addressed the DMOSQ matter. He enclosed the following documents that show that his SLRP addendum was legally and appropriately applied and that the change to the statute the ITF is citing that imply his SLRP payments were made in violation of DOD guidance was made at least 2 years after his addendum was completed: (1) Title 10, Chapter 1609 – Education Loan Repayment Programs, supplied to him by the ITF on 5 October 2012 (printed in the original form he received this document). The complete version of Title 10, Chapter 1609 from http://uscode.house.gov/download/pls/10C1609.txt. The version of Title 10, Chapter 1609 supplied to him by the ITF has completely lined out Paragraph (3) which states: "In the case of a commitment made by the Secretary of Defense after the date of enactment of this paragraph to repay a loan under paragraph (1) conditioned upon the performance by the borrower of service as an enlisted member under paragraph (2), the Secretary may repay the loan for service performed by the borrower as an officer (rather than as an enlisted member) in the case of a borrower who, after such commitment is entered into and while performing service as an enlisted member, accepts an appointment or commission as a warrant officer or commissioned officer of the Selected Reserve." This paragraph clearly states that when he signed his 6-year extension including an incentive agreement for SLRP payments in 2006, SLRP payments were authorized to continue for an enlisted member, as part of an enlistment contract, who later accepts an appointment as a warrant officer. The official version of Chapter 1609 from the house.gov source clearly shows that this paragraph above was struck in 2008, at least 2 years after he signed the SLRP addendum and after he began receiving payments. The amendment showing the date that the statement above was struck was not included in the version of this code the ITF provided him. (2) The State incentive office retained his SLRP addendum and processed SLRP payments based on it; however the State never provided a copy of his SLRP addendum to him through no fault of his own. He contacted the CAARNG Legal Assistance Office on 16 October 2012 and submitted to them the ITF's audit results and documents he submitted for the ITF audit via email on 11 June 2012. He requested legal assistance from the CAARNG Legal Assistance Office on 16 October however their office has not yet provided him a response or assistance with matters the ITF stated the Legal Assistance Office could help him do. e. He requested collection action be suspended until the Legal Assistance Office actually assisted him with any required filings or appeals and these issues he raised in this letter are worked out. He also requested a copy of the CAARNG records related to both of these debts being assessed. 20. On 7 September 2012, by memorandum, the ITF Program Office indicated that their office conducted a re-audit of the applicant's REB. The applicant had provided documents sufficient to change the category for the audit of Reenlistment Bonus BCN R0302-08CA from Category 3a (Correctable) to Category 3 (Non­ Correctable). The applicant provided the missing DA Form 4836, dated 5 February 2003, that establishes his service obligation and missing REB Addendum. The DA Form 4836 was signed on 5 February 2003, but the bonus addendum was not signed until 6 February 2003. The DA Form 4836 indicates this was a normal extension (use of rule A) and the bonus control number was requested 13 March 2003. Title 37, USC, Section 308b (a)(2), requires the incentive to be signed at the time of enlistment/extension. 21. On 5 October 2012, by memorandum, the ITF Program Office indicated that their office conducted a re-audit of the applicant's records: a. REB: The applicant had provided documents sufficient to change the recoupment amount for the REB from $15,000 to $13,333.33 and to change the category for the audit from Category 3a (Correctable) to Category 2 (Terminate with Recoupment, NGB may grant relief from recoupment). The applicant was deemed ineligible for this incentive because he transferred from the non-DMOSQ position in WRVRA0, paragraph 333, Line 03, duty MOS 97L2L, effective 14 September 2004. He provided documentation demonstrating that WRVRA0, Paragraph 333, Line 03, had a duty MOS of 97E3L on or before 9 May 2005. He served 8 months of the incentive period prior to accepting appointment as a warrant officer on 30 September 2006. Per DOD Instruction 1205.21, E5.1.4.2, termination is required as of this date. The applicant is eligible to retain $1,666.67 of the REB incentive with a recoupment amount of $13,333,33. The applicant can request an exception to policy from this recoupment. b. OAB: The applicant provided sufficient documents to downgrade the OAB from Category 3b (Non-Correctable) to Category 2A (State Correctable). He was deemed to be ineligible for the incentive duty to participation in the SLRP and missing an OAB Addendum. He was appointed as a warrant officer on 30 September 2006 and he was paid based on the SRIP 06-06 in force at the time. He was not eligible for the SLRP and is being recouped upon for the amount paid. He received his first SLRP payment in March 2007, subsequent to signing the OAB. There is no evidence he signed for the SLRP as an enlisted member. As there is no support for his SLRP participation prior to him signing his OAB and all monies paid on his student loans are being recouped, SLRP participation is considered relevant to the re-audit of his OAB. He has provided a signed OAB Addendum that matches the date of his appointment. He signed an addendum on 1 October 2006, which came into effect the date after his appointment. The former State Incentives Manager signed as both the service representative and witnessing officer. As there is ministerial defects with his OAB, he would need to sign as a corrected Addendum to retain eligibility for this incentive. 22. On 8 February 2013, the applicant authored an MFR, Subject: Incentives Payments Eligibility. He stated: a. The CAARNG ITF has initiated a debt to recoup $38,842.62 of incentive payments made to him between 2006 and 2009. However, he signed contracts with the ARNG in 2006 in good faith and agreed to serve in a critical shortage MOS during a high mission op-tempo period of time in what he was assured were legal and proper agreements created between him and the State. He had successfully completed all the training and service commitments required by his leadership and these agreements. The State ITF office has identified problems with his incentive payments that appear to be the result of administrative or human error, so he requests an exception to policy (ETP) or correction of his records as necessary to correct ministerial defects which have caused incentive payment ineligibility. b. In 2005-2006, the State (and Army at large) was critically short of deployable 351M warrant officers and pushed hard to recruit Noncommissioned Officers (NCO) with the leadership potential, experience and qualifications including foreign language proficiency and a top secret clearances to become warrant officers in this MOS. He had planned to leave the military after serving in Iraq in the feeder MOS 35M from 2003-2004, and upon returning home in 2004, he started his own business. However, after multiple outreach efforts by his unit commander and State warrant officer senior leadership, he decided to stay in the military and was encouraged to consider becoming a warrant officer. c. The recruiter who processed his reenlistment bonus and student loan addendum to the contract was (then) CW2 M-- No--, one of the state warrant officer strength managers and senior TAC Officer for the California State Warrant Officer Candidate School (WOCS). To his knowledge, CW2 No-- properly processed the extension and incentive agreements with the State bonus manager, MSG To-- Ja--, at State headquarters. Both his unit Commander and senior warrant officer leaders encouraged him to complete WOCS as soon as possible and obtain an appointment. Before signing the agreements that are now under review, he was specifically verbally counseled by CW2 No-- that if he became a warrant officer, doing so would not affect his bonus eligibility under his contract and that he would "take it with him" in reference to his incentive payments. It was further made clear to him that enlisted service incentive payments would continue as a warrant officer so as not to impose an obstacle to the State's officer recruiting requirements. At no time was he informed or did he otherwise understand that becoming a warrant officer could result in incentive payment ineligibility. d. His reenlistment contract extended his ETS date from 7 February 2006 to 7 February 2012 and for that he was offered and signed incentive agreements for a $15,000, 6-year REB as well as SLR under the terms of the program. The State ultimately paid $13,842.62 in SLRP benefits on his student loans between 2007 and 2009. He provided all the details of the valid federal student loans these payments were made to during this time. e. Upon recruitment to the warrant officer program, he was counseled that it could take up to a year before he would be able to obtain a school seat and complete WOCS and that he would need to complete the Warrant Officer Basic Course (WOBC) within 2 years after graduation from WOCS. Succeeding through the warrant officer training program was not guaranteed in any agreement and he was also counseled that if he failed WOCS or for any other reason could not become a warrant officer, he would go back to being an NCO and would be required to serve out the rest of his re-enlistment under my contract. Because of the difficulty of the total training and attrition rate, the State offered and he accepted a $10,000 OAB to be paid upon successful completion of required officer accession training. He completed WOCS and was appointed to Warrant Officer One on 30 September 2006, completed the Warrant Officer Common Core on 29 October 2007 and his MOS specific track course on 19 September 2008. Due to mission demands on the force at the time, the State clearly intended to send him through the warrant officer program without delay and provide him these incentive payments. The State also did not intend to disqualify him for incentive payments through any action on his or their part. f. Since completing warrant officer training, he had served over 3.5 years of additional active duty-operations support service with the Army. He accepted both the risk of failure in the warrant officer program and the risk of hazardous duty deployments and separation from his family and civilian life during one the busiest times in recent military history. Seven years ago, the State offered him these incentives when he extended in order to satisfy unit readiness requirements and counteract a steady drain of junior officers from the Army. Now that he had honorably fulfilled all terms and conditions of these agreements the State ITF office had concluded that he was ineligible for all of these incentive payments and must repay them with interest from the date of their Notice of Indebtedness. The heart of the issue the State ITF office has identified with his incentive payments seems to be purely bureaucratic and administratively correctable. 23. On 12 March 2013, the applicant authored another MFR, Subject: Incentives Payments Statement. He stated: a. The recruiter who processed his reenlistment bonus, SLRP agreement, and OAB during 2006 was (then) CW2 No--, one of the State warrant officer strength managers and senior TAC Officer for the California State WOCS­ RTI program. His company commander at the time signed the 6-year extension agreement. MSG Ja--, the State incentive manager, assigned BCNs to these incentives and processed the payments from 2006-2009. b. He was offered a 6-year extension bonus of $15,000 and participation in the SLRP for a 6-year reenlistment. His recruiter told him that he was eligible for both of these incentives because he extended for a period of 6 years in a critical shortage MOS (97E). His recruiter informed him that he was entitled to participate in the SLRP because it was part of an enlisted agreement and because he already had valid federal student loans. According to the program, the recruiter informed him that he was eligible for up to $20,000 in repayments under the program. Ultimately, he received $13,842.62 of student loan repayments under this program. c. At some point later in 2006, he was informed by the WOCS-RTI Program that the State was offering an OAB to new Warrant Officers and Commissioned Officers, and that that if he signed a 6-year agreement to serve as a Warrant Officer, he would be entitled to a $10,000 OAB upon completion of the WOBC based on his accession MOS of 351M. This is the MOS he successfully accessed into. The recruiter stated that the intent of this OAB was to ensure a retention period of at least 6-years of new officers. d. He was encouraged by the Warrant Officer Strength Manager to complete WOCS and accept an appointment as soon as possible because the State needed to fill a lot of Warrant Officer vacancies. His battalion leadership at the 223rd MI Battalion was also very supportive of Warrant Officer recruiting efforts within the Battalion and wholeheartedly encouraged him and other qualified NCOs at drills and through email exchange to go through WOCS and get an appointment. This was done as a concerted effort to replace dwindling Warrant Officer members during a period when his recruiters were under pressure to meet recruiting targets, e. He was counseled by CW2 No-- that if he became a Warrant Officer, he would retain his eligibility for the SLRP he signed for under his enlistment contract and that no new agreement as an officer would be required. He was also counseled that he would keep any REB payments already received if he later accepted an appointment as a Warrant Officer. He confirmed this with another Warrant Officer in his battalion at the time and another local recruiter. He was not aware of any action at the time that would cause ineligibility for any incentive. These counseling and decisions regarding his 6-year extension and the SLRP occurred in late 2005 and early 2006 before he signed the agreements in February 2006, and accurately reflected NGB policy at the time to the best of his understanding. f. MSG Ja-- counseled him that each year on the anniversary date of his reenlistment, he was required to contact the State Incentive office and reconfirm payment information for his student loans in order to facilitate annual SLRP payments. Around the anniversary date of his contract in early 2007, MSG Ja-- mailed him a DD Form 2475 (DOD Educational Loan Repayment Program Annual Application) with instructions to fill it out and return it to her in order for her to process the annual payment. 24. On 7 July 2013, the CAARNG HR Technician (CW2 No--) submitted an MFR supporting the applicant's request. He stated: a. During early 2005, he worked with the applicant (he was an enlisted Soldier at the time) on his reenlistment for six years to meet the requirements to submit his warrant officer packet. The applicant met all the eligibility criteria to extend with a six-year reenlistment bonus, he was a satisfactory participant, was neither a military technician nor Active Guard Reserve (AGR), fully MOS qualified, met the critical skill of 97E, had no flagging actions, passed the Army Physical Fitness Test (APFT) and met the standards of AR 600-9 (Army Weight Control Program). With the six year extension, he also met the eligibility criteria for the SLRP incentive. He had loans in good standing taken out prior to the annex agreement and with the extension had the six years remaining on contract, had not previously received the SLRP. And once appointed the SLRP would follow him as a Warrant Officer. Both the reenlistment bonus and (SLRP) annex were coordinated through the bonus branch with the NCO in Charge, MSG Ja--, at State headquarters. She issued the control numbers and all documents to include copies of the applicant's student loans for payment were sent to bonus branch. b. Upon appointment, the applicant met the entire eligibility requirement for OAB. He was a newly appointed Warrant Officer as of 30 September 2006, was not AGR, nor a military technician, had not held any prior appointments, assigned to an MTOE unit, successfully completed his WOBC within 24 months of appointment, and as far as he (the author) knows, the applicant remained in an active status with the CAARNG. The applicant had never been flagged for APFT nor been non-compliant with AR 600-9. He had remained an active participating member, and remained in his assigned to a warrant officer MOS. c. Prior to having the applicant sign any of these documents his eligibility was verified with the State bonus branch. Bonus control numbers were received prior to completing any and all documents. Based on his knowledge of the regulations and criteria needed to meet eligibility, the applicant did meet all of them. All documents were processed/executed and forwarded to the State bonus branch in accordance with proper guidance. 25. On 4 September 2014, the CAARNG State Incentive NCO notified the applicant of bonus incentive termination. He stated that due to discrepancies found in his contracts, termination for the reasons identified would result in a recoupment. The recoupment amount is $1,666.67 for his REB. The applicant provided the missing DA Form 4836, dated 5 February 2003, that establishes his service obligation and missing Reenlistment Bonus addendum. The DA Form 4836 was signed on 5 February 2003, but the bonus addendum was not signed until 6 February 2003. The DA Form 4836 indicates this was a normal extension (use of rule A) and the bonus control number was requested 13 March 2003. Title 37 USC Sec 308b (a)(2) requires the incentive to be signed at the time of enlistment/extension. The authority for this recoupment is 31 USC section 3702. 26. On 6 March 2015, the CAARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 27. The Board requested and the NGB provided an advisory opinion on 28 October 2016 in the processing of this case. An NGB official restated the applicant's request for relief from recoupment of incentive and bonuses received in the amount of $41,342.62 and recommended partial approval. a. The applicant signed a reenlistment bonus on 7 January 2006 for the amount of $15,000. He was eligible to contract for this incentive and initially eligible for payment. Section V of the signed addendum states bonus is terminated upon appointment as a warrant officer with recoupment if the Soldier has not completed 1 year or more of selected reserve service under the agreement. The CAARNG contends his eligibility for this incentive terminated when he accepted appointment as a warrant officer on 30 September 2006; per DODI 1205.21 sec E5.l.5, he would be eligible to retain a prorated amount ($1,458.33 - actual amount he would have been entitled to retain) of this incentive for the seven months of the incentive period he served honorably prior to his enlistment discharge. b. The applicant signed a $10,000 lump sum OAB addendum at the time of his commission on 30 September 2006. A BCN was requested for the OAB on 26 November 2007 and the applicant received $10,000 ($5,000 on 26 March 2008 and 28 March 2008). In accordance with SRIP 06-06 that covered 30 September 2006, he was fully eligible for this incentive. He received SLRP during the same contract period, a violation of the terms of the OAB Addendum he signed as well as SRIP 06-06 p (4)b ARNG Officers offered an OAB bonus must meet certain eligibility to include not receiving SLRP bonus for the same period of service they are contracted for. c. The applicant had $22,745 in eligible federal loans at the time of his 2006 extension. Although he was otherwise eligible for SLRP per SRIP 06-02, he had not signed a SLRP addendum in violation of DODI 1205.21 Sec 6.2 and thus would not have been entitled to any of the payments received. d. He provides email communication between himself and the Incentive Manager for the CAARNG (MSG Ja--) in regards to a SLRP payment. At no time does the Incentive Manager inform the applicant of violation to terms and condition of his contract. e. An MFR, dated 7 July 2013, signed by the HR Tech advising the applicant, explains that he informed the applicant that he was eligible for all incentives received and it was verified by the State Bonus Branch. Additionally the HR Tech states the Incentives manager issued control numbers for all documents to include the Soldier's SLRP incentive. f. Due to the unfortunate actions of the former Incentives Manager determined to have committed incentives fraud, all incentives within the CAARNG were audited and those which contained any discrepancies were flagged. Affected Soldiers should be given consideration based on the lack of knowledge of the overall process as it relates to incentives and relied solely on the subject matter expert's guidance regarding his eligibility for receiving incentives. The applicant contracted to serve in the ARNG in good faith and should not be penalized nor held accountable for actions beyond his control and of no fault of his own. It is the recommendation of this office for him to retain entitlement to OAB, SLRP and $1,458.33 of the REB bonus he received. The remainder of the REB in the amount of $13,333.33 is subject to recoupment consistent with signed addendum. g. This advisory opinion was coordinated with the ARNG Incentives Branch. The State of California Army National Guard concurs with this recommendation. 28. On 14 November 2016, the applicant responded to the advisory opinion and stated that he had nothing further to submit and wanted the Board to continue processing his application. REFERENCES: 1. Army Regulation 37-104-4 provides Department of the Army (DA) policies for entitlements and collections of pay and allowances. It is used in conjunction with DODFMR, Volume 7, Part A (Vol 7A). Chapter 20 (Settlement actions authority) states only the Director, DFAS–IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the Army Board for Correction of Military Records (ABCMR). 2. DOD Instruction 1205.21, section 6.2 (Written Agreements) 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. Services shall use the model written agreements set out in this. However, Service-specific agreements may be used, if they include all elements of the model agreements. 3. Title 37, USC 373(b)(1) reads, "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 interests of the United States." 4. Title 10, USC, section 16301 (b-c) reads, "The portion or amount of a loan that may be repaid under subsection (a) is 15 percent or $500, whichever is greater, for each year of service, plus the amount of any interest that may accrue during the current year. If a portion of a loan is repaid under this section for any year, interest on the remainder of the loan shall accrue and be paid in the same manner as is otherwise required. For the purposes of this section, any interest that has accrued on the loan for periods before the current year shall be considered as within the total loan amount that shall be repaid." 5. DODI 1340.23 (Waiver Procedures for Debts Resulting from Erroneous Pay and Allowance) states it is DoD policy that waiver applications for debts resulting from erroneous payments of pay and allowances (hereafter referred to as “waiver applications”) be processed according to all pertinent statutes, regulations, and other relevant authorities. a. E2.1.3. Debt. An amount an individual owes the Government as the result of erroneous payments of pay and allowances (including travel and transportation allowances) to or on behalf of members of the Uniformed Services or civilian DoD employees. b. E2.1.5. Erroneous Payment. A payment that is not in compliance with applicable laws or regulations. 6. ARNG SRIP Guidance 07-05 with updates provides for Officer Accession/Affiliation Bonus Options. a. The ARNG offers a $10,000.00 Officer Accession/Affiliation Bonus to newly-commissioned officers and newly-appointed warrant officers who agree to serve 6 years in a critical UIC. Additionally, officers and warrant officers must serve in a critical AOC vacancy within their chosen UIC. The Critical UIC Officer Accession Bonus will be paid in lump-sum payment upon successful completion of the Officer Basic Course (OBC)/BOLC or Warrant Officer Basic Course (WOBC) as applicable. b. The ARNG offers a $10,000.00 Officer Accession/Affiliation Bonus to newly-commissioned officers and newly-appointed warrant officers who agree to serve 6 years in a MTOE unit. Additionally, officers and warrant officers must serve in a valid AOC vacancy within their chosen UIC. The MTOE Officer Accession Bonus will be paid in two 50-percent installments. The first 50-percent installment ($5,000.00) will be paid upon successful completion of OBC/WOBC, as applicable, and the second 50-percent installment will be processed for payment on the third-year anniversary of commission or appointment. 7. DOD FMR 7000.14-R, Volume 7A, chapter 2, paragraph 020201 states when the conditions of a written agreement are not fulfilled, and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of the pay or benefit received. 8. NGB Policy Number 07-06, updated on 17 February 2008, states officers who sign a 6-year OAB addendum will receive a $10,000.00 bonus. The bonus would be terminated with or without recoupment depending on the circumstances that led to the termination. 9. A Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that bonus repayment will not be required, if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States. DISCUSSION: There were many errors committed by the CAARNG in the processing of the applicant's four claimed incentives. However, this did not mean he was fully eligible for all three incentives or that the administrative errors warranted full relief: a. 2003 Bonus: The applicant executed a 3-year extension in the CAARNG on 7 September 2003. This extension did not offer or promise him any incentives. There are no annexes, agreements, or addenda associated with this extension. He later provided documents that show he signed another extension contract on 3 February 2006 (three years after said extension) agreeing to serve in the CAARNG for 3 years in exchange for a $2,500 bonus. This is not a valid contract because (a) it was not executed in connection with his September 2003 extension, and (b) he was already serving on a 6-year reenlistment that began the previous month (January 2006). Validating this incentive as part of his February 2006 extension would negate the incentive he received as part of the extension he previously signed on 7 January 2006 b. 2006 REB: He signed a reenlistment contract on 7 January 2006 agreeing to serve in the CAARNG for 6 years in exchange for a $15,000 reenlistment bonus. He was paid the incentive but he did not fulfill the requirements of this contract when he accepted an appointment as a warrant officer on 30 September 2006. As stipulated in his contract, this incentive was terminated. He was eligible to retain a prorated amount of $1,458.33 for his service from 7 January 2006 to 29 September 2006. The applicant remains indebted of the difference between the amount he collected ($15,000) and the amount he actually earned ($1,458.33). c. 2006 OAB: He was fully eligible for the $10,000 OAB when he was appointed on 30 September 2006. In fact, a BCN was requested and the applicant was paid this amount. However, when he signed the OAB agreement, he indicated he was not receiving any financial benefits, which is contrary to his claim for the SLRP incentive. Nevertheless, he and the CAARNG agreed to this incentive and he should be able to retain it. d. He never signed an SLRP agreement despite having been eligible for this incentive and despite the issuance of a BCN. There is no SLRP addendum that spelled out his authorized loans, responsibilities, and the conditions for termination. Nevertheless, he contracted and served in good faith, relying on the guidance of his Incentives Manager. He was, in effect, penalized due to administrative errors committed by others. He had $22,745 in eligible Federal loans, and he had no reason to believe he was ineligible for that incentive. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012899 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012899 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2