IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20160000478 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20160000478 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________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: 5 May 2016 DOCKET NUMBER: AR20160000478 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, an exception to policy (ETP) to waive his Critical Skills Accession Bonus (CSAB) active duty service obligation (ADSO) in order to qualify for the full Critical Skills Retention Bonus (CSRB) in the amount of $150,000. 2. The applicant states: a. He was awarded a $20,000 CSAB based on his completion of the Special Forces Warrant Officer Technical and Tactical Course, military occupational specialty (MOS) 180A (Special Forces Warrant officer). The CSAB came with a 6-year ADSO which expires in 2017. He would like to repay the unearned portion of the CSRB and have the ADSO associated with the CSRB removed. Once the ADSO is removed he can take advantage of the full CSRB. His command has approved and endorsed his request. There are 117 CSRB eligible Special Forces Warrant Officers affected by the conflict between the CSAB and the CSRB. b. His military records are unjust because he did not sign an official CSAB contract and he was not counseled properly in 2011 concerning Title 37, U.S. Code, Section 371 (Relationship to other incentives and pays). He accepted the CSAB in June 2011 and had almost 15 years of service at that time. His 6-year ADSO made him ineligible for the CSRB at 19 years of service for $150,000; however, he was eligible for the CSRB for 21 years of service for $50,000. If he had been properly counseled he would not have accepted a lower value CSAB over the full value of the CSRB. He is losing $100,000 due to the conflict between the CSAB and the CSRB. c. The primary reasons for the unjust act was the lack of counseling on Title 34, U.S. Code, Section 324; lack of official contract documentation warning of the contradiction between the CSAB and the CSRB; and clerical errors by the personnel offering the CSAB. He submitted his request for CSRB well before his 19 year mark and would like to receive the full CSRB for an additional 6 years of service. 3. The applicant provides: * CSAB Recoupment Brief * Legal Analysis * Letter to Congresswoman Blackburn * memorandum, subject: Special Forces Warrant Officer Critical Skills Accession Bonus Program Pertaining to [Applicant], dated 28 June 2011 memorandum, subject: Critical Skills Retention Bonus for Army Special Forces Warrant Officers, Military Occupational Specialty 180A, dated 18 October 2013 * memorandum, subject: Request for Exception to Policy for Special Forces Warrant Officer Critical Skills Retention Bonus (CSRN) Pertaining to [Applicant], dated 21 April 2015 * three memorandums, subject: Request for Exception to Policy Waiver for Special Forces Warrant Officer Critical Skills Retention Bonus Pertaining to [Applicant], dated 21 April 2015 * memorandum, subject: Waiver of Critical Skills Accessions Bonus (CASB) Active Duty Service Obligation (ADSO) to receive Critical Skills Retention Bonus (CSRB) – [Applicant], dated 4 January 2016 memorandum, subject: Advisory Opinion – [Applicant], dated 24 February 2016 * Officer Record Brief CONSIDERATION OF EVIDENCE: 1. After having prior enlisted service in the U.S. Army Reserve, the applicant was appointed as a warrant officer in the Regular Army. He is currently serving on active duty as a chief warrant officer two (CW2). 2. In a memorandum, subject: Special Forces Warrant Officer Critical skills Accession Bonus Program Pertaining to [Applicant], issued by U.S. Army Human Resources Command, Fort Knox, Kentucky, dated 28 June 2011, shows his request for CSAB was approved. It further stated: a. The effective date of the CSAB was 27 June 2011, resulting from graduation from the Special Forces Warrant Officer Technical and Tactical Course for 180A. He agreed to remain on active duty in MOS 180A for a 6-year period in return for a bonus payment totaling $20,000. b. He agreed to an ADSO from 27 June 2011 through 26 June 2017. Voluntary retirement or separation from active duty is prohibited until after the ADSO was fully served. 3. Attached to the aforementioned memorandum is a statement of understanding signed by the applicant in which he acknowledged that termination from bonus entitlement and/or any refund made by him would not affect his period of obligation to serve on active duty. 4. On 21 April 2015, he requested an ETP for the CSRB. On the same day his commander recommended approval of his request. 5. A memorandum, subject: Waiver of CASB ADSO to receive CSRB – [Applicant], issued by the Office of the Assistant Secretary of the Army (ASA), Manpower and Reserve Affairs(M&RA), Washington, DC, dated 4 January 2016, shows his request to waive his remaining CSAB ADSO was denied by the ASA, (M&RA). 6. He provides a Legal Analysis, issued by a Group Judge Advocate pertaining to the CSAB and the CSRB essentially recommending: mandatory counseling detailing issues the CSAB overlapping service obligations with CSRB requirements, subjecting Special Forces Warrant Officers with more than 12 years of service to a more detailed class or brief identifying them as the group to be ineligible for the CSRB, and petitioning the respective Congressional Subcommittee to allow concurrent bonuses for the same period. REFERENCES: 1. Title 37, U.S. Code, Section 324, states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to: (a) accept an appointment as an officer in the Armed Forces, and (b) to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement. Paragraph (2)(a) states the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction the officer skills to which the authority under this subsection is to be applied. Paragraph (2)(b) states a skill may be designated for an Armed Force under subparagraph (a) if, to mitigate a current or projected significant shortage of personnel in that Armed Force who are qualified in that skill, it is critical to increase the number of persons accessed into that armed force who are qualified in that skill or are to be trained in that skill. Paragraph (b) states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned. 2. Title 37, U.S. Code, Section 371, states, in part, that a member may not receive a bonus or incentive pay for the same activity, skill or period of service. 3. Memorandum, subject: Critical Skills Retention Bonus for Army Special Forces Warrant Officers, Military Occupational Specialty 180A, issued by Under Secretary of Defense, dated 18 October 2013, states that the Army may offer CSRB contracts to qualified CWOs in the grade of CW2 and CW3 who have between 19 and 23 years of service and execute a written agreement to remain on active duty for a minimum 2-year service obligation. Qualified officers must have completed all service obligations associated with any previous special pay or bonus to be eligible for the CSRB. DISCUSSION: 1. The applicant requests an ETP to waive his CSAB ADSO in order to qualify for the full CSRB in the amount of $150,000. 2. He requested and was approved for a CSAB payment totaling $20,000 in 2011. He agreed to an ADSO from 27 June 2011 through 26 June 2017. 3. On 18 October 2013, a CSRB was offered to qualified CWOs in the grade of CW2 and CW3 who had between 19 and 23 years of service and who executed a written agreement to remain on active duty for a minimum 2-year service obligation. Qualified officers must have completed all service obligations associated with any previous special pay or bonus to be eligible for the CSRB. 4. Based on his ADSO associated with the CSAB, he is not eligible for the full CSRB. 5. He contends he was not properly counseled and did not have an official CSAB contract and he would like to repay the CSAB; however, he signed a Statement of Understanding in which he acknowledged that termination from bonus entitlement and/or any refund made by him would not affect his period of obligation to service on active duty. 6. Although his commander recommended approval of his ETP, his request was denied by the ASA, (M&RA) on 4 January 2016. 7. Considering all the facts of this case, there is no evidence of error, inequity, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000478 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000478 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2