BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20160011622 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 BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20160011622 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. BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20160011622 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, approval to pay his Career Status Bonus (CSB) debt of $30,000 by reducing his retirement pay from 50 to 40 percent. 2. He states he received an email from an employee of the U.S. Army Installation Management Command (IMCOM) on 30 November 2010; he was in Afghanistan at the time. The email message went to several Soldiers who were eligible to participate in the CSB/REDUX (reduced) Retirement Program. The email informed the applicant that he would reach 14½ years of service in December 2010 and was required to make an election to indicate whether he would participate in the program. He elected to participate in the program believing he was eligible even though his Date Initially Entered Military Service (DIEMS) was 8 February 1990. The S-1, chain of command, the Fort Campbell Finance office, and Defense Finance and Accounting Service (DFAS) cleared him for participation in the program and he subsequently received the CSB. He was unaware that he was not entitled to receive the bonus and relied on the professionals to ensure that all his military data was correct. 3. He provides: * Email, page 1 of 2, subject: CSB/REDUX Eligibility, dated 30 November 2010 * DD Form 2839 (CSB Election), dated 11 December 2010 * DFAS, Case Management System Report, dated 14 December 2010 * DFAS Military Leave and Earnings Statement (LES), for the period 1-30 April 2015 * Memorandum, subject: Notice of Indebtedness, dated 18 November 2015 * DD Form 139 (Pay Adjustment Authorization), dated 18 November 2015 * Enlisted Record Brief (ERB) * DA Form 2823 (Sworn Statement), 30 November 2015 * Memorandum, subject: Timeline and events of CSB/REDUX, for [Applicant], dated 5 January 2016 * Memorandum, subject: Letter of Indebtedness for [Applicant], dated 14 January 2016 * Memorandum, subject: Notice of Indebtedness, undated * Memorandum, subject: Relief from Indebtedness for [Applicant], dated 19 January 2016 * Memorandum, subject: Remission of Cancellation of Indebtedness [Applicant], dated 18 May 2016 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. The applicant enlisted in the Regular Army (RA) on 5 January 1977. He served 10 years, 2 months, and 2 days and was honorably discharged on 6 March 1987. 3. On 28 April 2003, he enlisted in the U.S. Army Reserve. On 23 October 2004, he was discharged under honorable conditions (general). 4. He enlisted in the RA on 21 December 2006. 5. His ERB shows his DIEMS as 17 December 1976. 6. On 30 November 2010 the applicant, and numerous other Soldiers, received an email, subject: CSB/REDUX Eligibility. a. The email identified the applicant as having reached 14½ years of active federal service during the month of December 2010. It explained that he was required to participate in an elected retirement plan of either the High-3 or CSB/REDUX. His was required to complete his election by his 15th year of active service. b. To qualify for participation in the CSB/REDUX Retirement Program (and the $30,000 CSB) applicant Soldier must have a DIEMS of 1 August 1986 or later. DIEMS is the date an individual was initially enlisted, inducted, or appointed in a regular or Reserve component of a uniformed service as a commissioned officer, warrant officer, or enlisted member. Breaks in service do not affect a DIEMS date. 7. A DD Form 2839 shows on 30 November 2010, a Service Authenticating Representative signed this form indicating that the applicant was eligible to elect the CSB. On 5 December 2010, the applicant signed this form electing a single lump sum payment of $30,000. The witness/recording official, the Battalion Commander, Headquarters, 1st Battalion, 327th Infantry Regiment, signed the form on 11 December 2010. 8. On 18 November 2015, the applicant received notification of his indebtedness to the U.S. Government for the $30,000 CSB payment he received on 24 June 2011. 9. On an unknown date, he acknowledged receipt of the Notice of Indebtedness. He indicated that he attached a written protest of the debt and a remission or waiver packet. On 14 and 19 January 2016, his company and battalion commanders recommended approval of his application for remission or cancellation of indebtedness. 10. On 18 March 2016, the Chief, Operations Management Division, Human Resources Command (HRC), disapproved the applicant's application for remission or cancellation of indebtedness. The representative stated that a review determined that no grounds exist to remit or cancel the $30,000 debt based on hardship and/or injustice. 11. The applicant was honorably retired on 30 June 2016 and credited with completing over 20 years of active duty service. REFERENCES: 1. The Military Reform Act of 1986 created the REDUX retirement system and it applied to all members who joined on or after 1 August 1986. The National Defense Authorization Act (NDAA) for FY2000 amended this system. The NDAA made two major changes: 1) it allowed those in this group to choose between the High-3 retirement system and the REDUX retirement system and 2) it added a $30,000 CSB as part of the REDUX retirement system. Those members who elected the CSB/REDUX retirement system at their 15th year of service receive a $30,000 CSB. To receive this bonus, the member must agree to complete a twenty-year active duty career with length-of-service retired pay under the 1986 Military Retirement Reform Act (MRRA) -- 1986 MRRA or REDUX. Continuation beyond twenty years is possible, subject to service personnel management actions. However, the member's commitment with the CSB is only to the 20-year point. The entire $30,000 bonus, or first installment payment for those electing a multi-year payment option, is paid shortly after the member makes the CSB/REDUX election and commits to the 20-years-of-service obligation. If the member does not complete the obligation of the twenty-year career, the member must repay a pro-rated share of the bonus. 2. Army Regulation 600-8-7 (Retirement Services Program), in effect at the time, prescribes policies governing military personnel retirement services. Chapter 7 (CSB/REDUX Pay Plan) sets forth the tasks, rules, and steps for processing applications for Soldiers making a choice under the CSB/REDUX plan. a. Paragraph 7-2 (Background) provides that Soldiers with a DIEMS on or after 1 August 1986 who are eligible under current Service regulations to serve continuously to 20 years must choose between the High-3 and the CSB/REDUX between 14½ to 15 years of active duty, although retirement will not occur until the Soldier has completed 20 years of service. The DIEMS pertains to the earliest date of enlistment, induction, or appointment in a Regular or Reserve Component of a Uniformed Service as a commissioned officer, warrant officer, or enlisted Soldier. A DIEMS is rarely the same as a basic active service date and often earlier than a pay entry basic date. The Soldier's basic active service date serves as the basis when calculating the 14½ to 15 years of active duty. b. Paragraph 7-3 (Rules for Processing Requests for a Choice under the Plan) provides that installation commanders are required to conduct monthly or individual CSB/REDUX briefings for eligible Soldiers once they complete 14 ½ years of active duty to help them decide between the CSB/REDUX or High-3 retirement plans. The options for CSB are: * one payment of $30,000.00 * two annual installments of $15,000.00 each * three annual installments of $10,000.00 each * four annual installments of $7,500.00 each * five annual installments of $6,000.00 each c. Paragraph 7-4 outlines the steps required to process a Soldier's request to make a choice under the CSB/REDUX. (1) Step 1 (Responsibility – Personnel Officer) – Provide eligible Soldier with written notification at 14 1/2 years of active duty. Personnel will include procedures for electing the CSB and an explanation of the effect that electing the CSB will have on the computation of retired pay if and when the Soldier becomes eligible. (2) Step 2 (Responsibility – Soldier) – Soldier has 6 months to decide to either remain under High-3 or elect CSB/REDUX. (3) Step 3 (Responsibility – Personnel Officer) – A lieutenant colonel or the designated representative in the Soldier's chain of command must sign item 13 (Witness) and item 17 (Recording Official) of the DD Form 2839. The same person must sign both blocks. (4) Step 4 (Responsibility – Soldier) – Soldier gives completed DD Form 2839 to the personnel officer. 3. The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864(1977), concerning military reenlistment bonuses does not alter fundamental rules of law that (1) a service member's entitlement to military pay is governed by statute rather than ordinary contract principles and (2) in the absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents. DISCUSSION: 1. The applicant had prior service in the RA from on 5 January 1977 to 6 March 1987, a total of 10 years, 2 months, and 2 days. He reentered the RA on 21 December 2006. On 30 November 2010, his command notified him of his entitlement to participate in the CSB/REDUX Retirement Program. 2. By his own admission, the applicant received an email that stated to qualify for participation in the CSB/REDUX, he must have a DIEMS of 1 August 1986 or later. The email further stated that DIEMS is the date he initially enlisted. Breaks in service do not affect a DIEMS date. 3. The applicant now argues that the S-1, chain of command, DFAS cleared him for participation in the program and he was unaware that he was not entitled to receive the bonus. However, the email clearly explains the qualifications for participation and that he must have a DIEMS of 1 August 1986 or later. Therefore, if there were questions on whether he met those qualifications, he should have contacted the S-1, his chain of command, and/or DFAS prior to accepting the CSB since he knew he initially entered service prior to 1 August 1986. 4. The applicant voluntarily accepted a CSB in return for participating in the REDUX. His command and appropriate authorities approved his request for CSB and authorized payment of $30,000; a CSB that he was not eligible to receive under the REDUX plan pursuant to Army Regulation 600-8-7 due to having a DIEMS prior to 1 August 1986. 5. The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his or her entitlements, the U.S. Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011622 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011622 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2