ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170011581 APPLICANT REQUESTS: * that a Bonus Control Number (BCN) or addendum be created to support his eligibility for the $10,000 Officer/Warrant Officer Accession Bonus Addendum under the Selected Reserve Incentive Program * alternatively, relief from bonus recoupment of $5000 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Statement * Written Agreement Officer/Warrant Officer Accession Bonus Addendum * Strength Maintenance Management System (SMMS) * Memorandum Subject: Notification of Termination * Memorandum Subject: California Request for Exception to Policy (ETP) for Accession Bonus * Memorandum Subject: National Guard Bureau Request for Exception to Policy (ETP) for Accession Bonus FACTS: 1. The applicant states he has received $5000.00 of the $10,000.00 officer accession bonus. He completed the six years of service in the California Army National Guard (CAARNG) as stated in his contract to include two deployments, and he continues to serve in the CAARNG. He trusted his strength manager to perform their responsibilities ethically and completely. He believes the bonus manager did not issue a BCN or place the addendum in his file, which is to no fault of the applicant. The applicant states he was notified of the discrepancy in 2015 and has taken all necessary steps to request a relief and exception to policy. The previous Incentive Manager (IM) was incarcerated for incentive fraud and negligence. The applicant states his bonus was caught up in the period of gross incentives mismanagement. His peers in a similar situation as himself have received notices of no intent to pursue debt due to the Secretary of Defense developing a streamlined centralized process that audited their cases and formally closed all matters related to the incentives during 2004-2010. 2. A review of the applicant’s records show: * 13 November 2007 – the applicant was honorably discharged from CAARNG * 14 November 2007 – the applicant commissioned as a Warrant Officer in the CAARNG 3. The applicant provides the Written Agreement Officer/Warrant Officer Accession Bonus Addendum which shows: * the applicant meets the eligibility criteria and agreed to serve in the Selected Reserve in AOC/MOS 153D0 which is a critical officer/warrant officer skill that is designated for bonus entitlement * he agrees to serve in the Selected Reserve for six years in his critical AOC/MOS, the full period of the agreement * he shall receive a bonus of $10,000 paid in two installments * he understands what may cause him to be suspended and terminated from the bonus eligibility with and without recoupment * he initialed and signed the form on 15 June 2009 stating he understood each of the statements in the agreement; there were no signature of the service representative or of a witnessing officer 4. The applicant also provides a Strength Maintenance Management System printout showing: * Control Number: O09060013CA * Contract Signature Date: 14 November 2007 * Contract Start Date: 28 May 2009 * Obligation End Date: 27 May 2015 * Contract Type: OA * Contract Amount: 10,000.00 * Bonus AOC: 153D * Issue State: CA * Bonus UPC: QRXB0 * Para: 202 * Line: 02 * 26 May 2009 – payment amount: $5000.00 * 28 May 2012 – second disbursement payment in the amount of $5000.00 cancelled 5. On 21 April 2015, the applicant received a Notification of Termination/ Recoupment of Incentives memo from the Headquarters, CAARNG showing: * the applicant’s records were audited and the CAARNG determined his contract with the incentive officer accession bonus will be terminated because payment was made in violation of DOD guidance; payment is in violation of NGB Policy * Recoupment amount: $12,500.00 6. On 5 August 2015, the applicant submitted a memo for Joint Forces Headquarters State Incentive Program requesting an exception to policy regarding his officer accession incentive bonus which states: * after he completed BOLC III and appointed as a 153D (UH60 pilot) on 28 May 2009, he was told to fax the bonus addendum, and he trusted his Strength Manager to process his bonus correctly and completely * it was his understanding he had to complete BOLC III before he was eligible for the bonus and that he was not aware he had to sign the document the same day as his appointment as 153A * the Bonus Addendum he has indicates the amount of $10,000 and per NGB investigation, he only received the first payment of $5000 * he requests not to be recouped $5000; during the entire process, he has not been deceptive or had any ill intentions and should not be penalized for something that was not his fault * he further requests an exception to policy for not having a completed Bonus Addendum 7. On 23 November 2015, a memo from the Chief, Personnel Programs, Resources and Manpower Division to the CAANG State Incentive Manager states: * the applicant’s request for an ETP to retain the $10,000 officer accession bonus was disapproved because the written agreement cannot be located in the applicant’s records, and the Bonus control number was requested after the accession date * the discrepancies identified violates the Department of Defense Instruction; 1205.21 paragraph 6.2 and ARNG SRIP 07-06 updated 1 March 2009 * the Army National Guard Bureau does not have the authority to approve the request 6. See applicable regulations below BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, and evidence in the records. The Board discussed the applicant’s service record, his statement in support of his claim and the denial of an exception to policy by the CAARNG. The Board determined that due to administrative errors that were not the applicant’s fault, he should remain eligible for the officer accession bonus in accordance with the bonus addendum he provided. 2. After reviewing the application and all supporting documents, the Board found the relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 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 records of the individual concerned be corrected by: - Showing he was eligible to receive the Warrant Officer Accession Bonus in accordance with the written agreement he signed on 15 June 2009; - That the written agreement was accepted and that a Bonus Control Number was issued; - That he be paid the entirety of the bonus, and that any collection of funds due to recoupment be returned to him. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. National Defense Authorization Action for Fiscal Year 2017 (NDAA FY17) Section 671(c), Benefits Paid to Members of California National Guard, provides the Secretary of Defense shall conduct a review of all bonus pays, special pays, student loan repayments, and similar special payments that were paid to members of the National Guard of the State of California during the period beginning on 1 January 2004, and ending on 31 December 2015; and states, the board of review concerned will carry out a complete review of all incentive contracts awarded to members for which the CAARNG has reason to believe a recoupment of pay may be warranted, to determine: a. Whether the members were eligible for the contract and whether the contracts accurately specified the amounts of pay for which they were eligible. (1) If any member is determined not to have been eligible for an incentive payment paid, the board will determine whether waiver of recoupment is warranted. (2) The board or review will determine a waiver of recoupment is warranted unless the board makes an affirmative determination by a preponderance of evidence that the member knew or reasonably should have known the member was ineligible for the incentive pay otherwise subject to recoupment. b. If any incentive payments paid to any member has been recouped and whether the recoupment is unwarranted. The board of review shall determine that recoupment was unwarranted unless the board makes an affirmative determination, by a preponderance of evidence that the member knew or reasonably should have known that the member was ineligible for the incentive pay otherwise subject to recoupment. 2. A memorandum, Secretary of the Army, subject: Army Review of California Army National Guard Bonus and Student Loan Repayment Cases, dated 4 January 2017, states, cases referred to the Army Board of Corrections of Military Records (ABCMR) to be adjudicated will comply with the standards contained NDAA FY 17, Section 671(c) specifically that ABCMR shall determine: a. That waiver of recoupment is warranted with respect to a Soldier unless the Board makes an affirmative determination by a preponderance of evidence that the Soldier knew or reasonably should have known that the Soldier was ineligible for payments at issue. b. The existence of a signed contract or other document showing that a Soldier knew that his or her bonus payments were tied to a specific length of service and failed to serve that length of time while retaining all payment may be sufficient evidence to conclude that a Soldier "knew or reasonably should have known" that the Soldier was not entitled to the payments. 3. Department of Defense Instructions (DODI) 1205.21, paragraph 6.2 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. 4. AR 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20170011581 2 1