IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20180006058 APPLICANT REQUESTS: In accordance with a group application submitted by the Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs, to this Board, the applicant requests a record correction to show entitlement to the incentives received. Additionally, the applicant requests cancellation of recoupment action established by the California Army National Guard (CAARNG) Incentives Task Force (ITF) and reimbursement of all payments collected as a result of the recoupment action, as applicable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 1966 (Record of Military Processing) * DD Form 4 (Enlistment/Reenlistment Document) * Addendum to DD Form 4 (NGB Form 22-5-4-E) * DA Form 4836 (Oath of Extension or Reenlistment) * Reenlistment/Extension Bonus Addendum * Memorandum, Headquarters, CAARNG (CAAD-ITF), subject: Notification of Termination/Recoupment of Incentives, 16 August 2012 * ITF Bonus Audit (Reenlistment Bonus) * ITF Bonus Audit (Non-Prior Service (NPS) enlistment bonus) FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall evaluate the evidence in a light most favorable to the Soldier. 2. NDAA FY 2017, Section 617(c) and the Secretary of the Army Memorandum dated 4 January 2017, states, in effect, that this Board will: a. Address whether the applicant was eligible for the incentive(s) contracted for, eligible for the payment(s) received, and if the full length of time tied to the contractual obligation was served. b. Determine waiver of recoupment is warranted, unless the Board makes an affirmative determination, by a preponderance of evidence, that the applicant knew or reasonably knew if they were ineligible for incentive pay received. The existence of a signed contract or other document showing that the applicant knew that his or her bonus payments were tied to a specific length of service and did not serve that length of time while retaining all payment will be sufficient evidence to conclude that they "knew or reasonably should have known" that he or she was not entitled to the payment(s). 3. On 5 November 2001 the applicant enlisted in the New Mexico Army National Guard (NMARNG) for a period of 8 years. The available evidence shows discrepancy in the bonus amounts annotated in the documentation required for the enlistment process. a. On the same day and prior to signing his enlistment contract, he completed a DD Form 1966 at the Military Entrance Processing Station (MEPS), item 32 (specific option/program enlisted for) is required to be completed by a state official/guidance counselor, it shows the applicant enlisted under the 6X2 option, for military occupational specialty (MOS) 14S (Avenger Crewmember), $6,000 bonus; however, Section VI (Remarks), he signed a statement, "I understand that I am eligible for and enlisting for the $8,000 enlistment, Early ship [$2,000] and critical skill cash enlistment bonus [$6000]). b. His record provides a copy of his Enlistment Bonus Addendum, the it differs from his DD Form 1966, it shows: (1) He was enlisting to serve at least 6 years in: * Bonus unit name and UIC: Battery B, 3rd Battalion, 200th ADA, WPYNBO * Critical MOS: 14S10 * Position paragraph/line number: Para: 201 Line 14 (2) He was to receive a total bonus of $3000 for the enlistment bonus option. His first payment of 50 percent would be paid upon completion of initial active duty training (IADT) and the second 50 percent would be paid upon satisfactory completion of the fourth anniversary of his enlistment. He understood his bonus eligibility would be terminated with recoupment if he voluntarily transferred to a non-critical skill and non- bonus unit. Recoupment would be effective the date of transfer. (3) The addendum does not provide quick ship bonus information. 4. On 25 February 2002 he entered active duty and awarded MOS 14S for having successfully completed IADT on 7 August 2002. 5. On 27 April 2003, he was ordered to active duty for 365 days in support of Operation Noble Eagle. Orders were published by the Stat of New Mexico, Department of Military affairs reassigning the applicant to Battery B, Force Protection 1, 202nd Field Artillery Battalion (Forward), Las Cruces, NM. The assignment loss reason is "mobilization of Individuals" in MOS 14S. 6. The applicant was mobilized from 26 May 2003 to 7 March 2005 and completed, 1 year, 9 months and 12 days of net active service. Upon release from active duty he was reassigned back to his reserve unit of assignment. 7. On 11 June 2005 the applicant was approved for an interstate transfer to the CAARNG. His approved transfer shows under Part 1 (Soldier Data) the applicant's primary MOS as 14S with "no" checked for critical skill and bonus type as "N/A (not applicable)." His new unit of assignment shows he was transferring to the CAARNG, Company C, 297th Support Battalion (unit is handwritten in) in duty MOS 52D (Power Generation Equipment Repairer). * A personnel qualification record prepared 14 June 2005 shows his unit as Battery B, 3rd Battalion, 200 ADA (unit he initially enlisted in), his duty position as MOS 11B and his primary enlisted MOS as 14S. * A personnel qualification record dated 17 June 2005 shows his duty MOS as 52D, position number: 9993 excess to authorized 8. On 26 October 2007 the applicant extended his service for a period of 1 year. His unit of assignment was Company C (Med), 297th support Battalion 9. On 28 July 2008 he was transferred from Company C (Medical), 297th Support Battalion, San Mateo, CA to 2632nd Transportation Company, San Bruno, CA in duty MOS 63B (Mechanic). Assignment reason is "N/A" (not applicable). 10. On 2 August 2008, the applicant extended for a term of 6 years and subsequently executed a reenlistment/extension bonus addendum shows he was extending for a 6- year extension in a non-critical modified table of organization and equipment (MTO&E) unit. A Bonus (BCN) [R0808006CA] was issued and both the applicant and the state official signed the addendum. His unit of assignment shows as 2632nd Transportation Company. a. He was to receive a total bonus payment in the amount of $15,000. He was enlisted in a valid, vacant positions and was MOS qualified for the position as of the date of the extension. His payment was to be processed in one lump sum payment on the date the extension contract takes effect (1 day after his current expiration term of service (ETS)). He understood that, if due to unit transformation/reorganization he became non-duty MOS qualified before his current ETS the initial payment would not be processed until he became duty MOS qualified. b. He understood he would not receive payment if he did not meet all the requirements at the time his extension took effect. His extension would be verified and certified by the proper authority prior to any payment being processed. 11. On 16 August 2012, he was notified the CAARNG audited his bonus payments and his reenlistment/extension bonus payment in the amount of $15,000 was to be recouped. The payment was made in violation of NGB policy, specifically, in violation of Department of Defense guidance. 12. On 31 July 2012 the CAARNG Incentives Task Force (ITF) audited his reenlistment/extension bonus, it states the applicant was the applicant was non duty MOS qualified at the time of his extension and therefore ineligible to contract. He received a $15,000 lump sum payment on 20 February 2009. The applicant remains non-duty MOS qualified and currently carried as a 09B. The audit provides an excerpt of a screen shot from Information Management and Reporting Center (iMARC), the system utilized at the time, by state officials to manage incentives and bonuses, it shows a state incentive official, master sergeant (MSG) J___ verified, validated and processed a payment in the amount of $15,000 under BCN R0808006CA. 13. An ITF Bonus Audit Form dated 24 September 2012 shows his non-prior service enlistment bonus was audited. It shows his current MOS as 88M, his contract MOS as 14S. It states the applicant enlisted in the NMARNG for a $3,000 non-prior service enlistment bonus, a $3,000 critical skill bonus and a $2,000 off peak ship bonus. It provides: a. The audit was done based off a 6 year enlistment. The applicant was eligible to contract, he became MOS qualified and was paid $3,000 by the NMARNG. He was eligible for this amount. He transferred to the CAARNG and placed in an 11B position he was not MOS qualified in. He was then transferred to a 52D position he was not MOS qualified in. The applicant remained non MOS qualified for the duration of his contract. b. Eligibility terminated the date of his transfer to the CAARNG (44 months of service). On 11 January 2006 the CAARNG paid the applicant $1600; however, $822.22 was recouped making the total amount paid $3,777.78. For 44 months of service the applicant would have been eligible for $4,888.84. The applicant is eligible for a payment of $1,111.06. In order to receive the full $8,000 the applicant would need to submit an exception to policy. 14. Memorandum, Headquarters, CAARNG, subject: Completed Incentive Eligibility Audit, dated 3 October 2012 shows the CAARNG reviewed all of his bonus incentives and determined his non-prior service bonus account was correct and no further action was due on his part. 15. On 13 February 2013 the CAARNG ITF submitted a charge for his reenlistment/extension bonus in the amount of $15,000. The reason for adjustment indicates the applicant received incentive funds erroneously. 16. On 15 June 2015 the applicant extended his term of service for a period of 2 years. 17. On 17 October 2017 the applicant and a state official executed an extension for a period of 1 year, establishing a new expiration term of service date of 5 November 2018. A Report of Separation and Record of Service shows the applicant was discharged effective 5 November 2018. He served 17 years of service. 18. On 24 September 2018, an official with the National Guard Bureau provided an advisory in regard to his non-prior service enlistment bonus ($3,000) with critical skill option ($3,000), off peak bonus ($2,000) and reenlistment/extension bonus ($15,000). It states, based on the evidence: a. The applicant was eligible to contract for the non-prior service enlistment bonus ($3000). The applicant became bonus ineligible when he transferred out of his contracted MOS upon an interstate transfer from the NMARNG to the CAARNG on 11 June 2005. It is recommended he receive partial relief granting the 43 months ($3,583) out of 72 months (($6,000) of the NPS/Critical Skill bonus. b. The applicant remains eligible to receive his off peak bonus ($2,000) because he shipped within the specified period. c. In regards to the reenlistment/extension bonus ($15,000) the applicant was not eligible to contract because he was not qualified in the position he occupied at the time of his extension. However, because the addendum specified the REB as a non-critical MTO&E unit and the applicant served in the contracted UIC the full term of his contractual agreement, it is recommended he be granted full relief of recoupment in the amount of $15,000. 19. Contract and Incentive Eligibility – Non-prior enlistment bonus: The applicant was eligible to contract and he was eligible for an enlistment bonus. However, the ABCMR is unable to verify this information as accurate additionally, unlike other cases submitted with this group application, the evidence provided does not include supporting documentation to show associated contract history and processed payments. . Based on the evidence a bonus control number was issued and a contract was signed for an enlistment bonus in the amount of $3,000. a. The CAARNG ITF audit and National Guard Bureau indicate the applicant enlisted for a non-prior service enlistment bonus of $3,000, a critical skill bonus of $3,000 and an off peak ship bonus of $2,000. However, based on the evidence, it appears the state official failed to correctly identify the types of incentive the applicant was enlisting for and the dollar amount associated to each incentive. (1) Specifically, the DD Form 1966 has conflicting information in the "Option Enlisted for" which shows he enlisted for the 6X2, MOS 14S, $6,000 bonus and then the "Remarks" section shows he was eligible and enlisting for the $8,000 enlistment, early ship and critical skill cash enlistment bonus. His signed enlistment bonus addendum shows he enlisted for a period of 6 years, in a bonus unit and critical MOS for $3,000. (2) Although the signed bonus addendum shows the applicant acknowledged and understood his bonus eligibility would be terminated with recoupment if he was to voluntarily transfer to a non-critical skill and non-bonus unit and his approved state transfer shows he was aware of assignment into duty MOS 52D. Due to the lack of evidence provided in the CAARNG ITF audit, we are unable to provide information regarding the state incentive manager, dates and amounts that were erroneously processed through no fault of the applicant. (3) Based on this we are unable to advise (1) if the applicant reasonable knew he was entitled to incentive amount received and (2) the amount of monies received. If the board recommends recoupment, as a matter of equity, recoupment should be calculated based on the signed bonus addendum showing he contracted for an enlistment bonus in the amount of $3,000. b. Length of Service Relative to the incentive(s. Notwithstanding the National Guard Bureau advisory which recommends recoupment and in light most favorable to the soldier the record of evidence shows a significant amount of administrative error and irregularity took place in throughout the process of his enlistment. Additionally, prior to his transfer to the CAARNG he satisfactorily served in the NMARNG from the time he enlisted on 5 November 2001 to 11 June 2005 with 1 year, 9 months, and 12 days of active duty service in support of Operation Noble Eagle. 20. Contract and Incentive Eligibility – Reenlistment Bonus. The applicant was eligible to reenlist/extend his contractual obligation. However, notwithstanding the National Guard Bureau advisory, the ABCMR is unable to determine how it was determined he was not bonus eligible based on him not being qualified in duty MOS 52D. a. Upon transfer to the CAARNG the applicant was qualified in MOS 14S. The available evidence shows he was transferred and/or assigned to multiple MOS positions and neither extension contract nor bonus addendum specifies an MOS or refers to the requirement to be MOS qualified as a 52D in order to receive the $15,000. b. The National Guard Bureau recommends the applicant be able to retain the full reenlistment bonus in the amount of $15,000 based on the available evidence , the Soldiers 17 years of service and the lack of evidence to demonstrate intent of deceit. BOARD DISCUSSION: The Board is unable to determine that the applicant knew or reasonably should have known that he was ineligible to all of the incentive pay received. The Board's conclusion in this regard is based on the available evidence, which provides administrative error took place in the overall processing of the incentive through no fault of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a. Showing a request for waiver of recoupment has been approved and he is eligible to retain all incentive monies received for his non-prior service enlistment bonus and reenlistment bonus during his service in the Army National Guard; and b. Reimbursing the applicant any previously recouped monies for these portions of his incentives debt. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006058 9 ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1