BOARD DATE:  26 April 2019
DOCKET NUMBER: AR20180008844


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:

*	Two DD Forms 149 (Application for Correction of Military Record)
*	Application for Active Duty
*	Orders, Active Duty Commitment
*	Unqualified Resignation
*	Memorandum, Appointment as a Reserve Commissioned Officer
*	DA Form 71 (Oath of Office-Military Personnel)
*	Written Agreement, Officer Affiliation Bonus (OAB)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Certificate, Degree of Master of Divinity
*	Two Incentives Task Force Audit, Chaplain Loan Repayment Program and 
Officer Accession Bonus
*	Memorandum, CAARNG Incentives Recoupment
*	Two DD Forms 139
*	Memorandum, CAARNG Re-Audit
*	Memorandum, National Guard Bureau, Exception to Policy
   *	Memorandum, NGB Advisory Opinion 
FACTS:
1.	Standard of Review. When arriving at its findings and makings its determinations, 
the Board shall evaluate the evidence in light most favorable to the Soldier.

2.	On 9 September 1998 the applicant was appointed as a Reserve Commissioned 
Officer of the Army in area of concentration (AOC) 56A (Chaplain). He was ordered to 
active duty on18 April 2000 and received approval of an unqualified resignation


separating him 1 August 2007. His DD Form 214 shows he supported the Global War 
on Terrorism and served 7 years, 3 months and 16 days of Net Active Service. In 
conjunction with his resignation on 6 June 2007, he executed a written agreement, 
Officer Affiliation Bonus, it states,

   a.	He agreed to serve in the selected reserve in a critical officer skill, unit or pay 
grade that is designated for bonus entitlement by the Secretary of the Army or his 
delegate and was to receive a bonus in the amount of $10,000 to be paid in a lump sum 
upon his assignment to a designated unit or pay grade pursuant to the agreement.

   b.	He understood the incentive payment would be subject to recoupment, if he failed 
to participate satisfactorily, maintain readiness, or if he voluntarily separated.

   c.	The written agreement is signed by a witnessing officer and void of specifics in 
regards to the critical officer skill, unit or pay grade he affiliated with entitling him to the
$10,000 incentive.

3.	On 13 December 2011 the CAARNG Incentives Task Force (ITF) conducted and 
audit for his CLRP incentive in the amount of $20,000. A second audit was conducted 
for his OAB (bonus control number (BCN) CONVERSION)) in the amount of $10,000. 
The senior reviewer's narrative states:

    a.	No contract exits for the officer Records are void of a written agreement, the 
applicant appeared to have been eligible to contract for the CLP however, no CLRP 
written agreement was executed. He received payments made prior to completion of 
satisfactory service and for years the members was not in the Selected Reserve.

   b.	The Incentives office processed payment incorrectly which resulted in payments 
made for due dates outside the statute of limitations. He was paid an officer accession 
bonus in conjunction with CLRP for overlapping service periods. Master Sergeant J 
improperly paid the CLRP. The member cannot retain both the CLRP and OAB 
payments.

4.	On 12 March 2012, a memorandum advised the applicant the CAARNG audited his 
OAB and CLRP incentives and noted discrepancies for a total amount of $30,000. It 
states payments were made in violation of National Guard Bureau Policy.

5.	Two DD Forms 139 (Payment Adjustment Authorization), dated 1 October 2012 
shows the CAARNG ITF submitted a charge for the CLR in the amount of $20,000 and 
the OAB in the amount of $10,000. The reason for adjustment indicates the applicant 
has not supporting documentation on file to substantiate the incentive received

6.	A memorandum for record dated 19 April 2013 provides the CAARNG re-audited the 
applicants OAB due to the applicant providing a copy of his addendum and now


considered fully eligible to receive the incentive. A DD Form 139 was executed 
crediting him with $10,000 for his OAB.

7.	On 30 December 2013 the National Guard Bureau submitted a memorandum to the 
CAARNG denying, for the second time, a request for exception to policy for the 
applicant to retain the OAB incentive in the amount of $10,000 due to the bonus 
addendum being void of a critical AOC and the BCN being requested after the date of 
accession.

8.	On 20 September 2018 an official with the National Guard Bureau submitted an 
advisory opinion addressing the OAB and CLRP recoupments in the amount of
$30,000, it states, the case was evaluated and rendered in the spirit of the National 
Defense Authorization Act (NDAA) 2017, it was determined the applicant was eligible 
the applicant was eligible to contract for the OAB but not the CLRP.

   a.	Regardless the CAARNG offered him the CLRP incentive and he served two- 
times the service obligation required of him for this incentive. The audit conducted by 
the CAARNG states the applicant received CLRP funds for time not served in the 
ARNG; however, based on the evidence, it is reasonable to assume the dates 
associated with these payments were merely fictitious and, although clearly processed 
incorrectly, this was outside the control and knowledge base of the applicant. All 
payments were processed on the same date, with the lender receiving a lump sum of
$20,000.

   b.	There is no evidence to demonstrate that he knew of his ineligibility for the 
incentive or that he acted deceitfully or with the intent to defraud the government. The 
amount received was within the maximum allowable limit for the CLRP program. Based 
on the evidence, his good service and the lack of evidence to demonstrate the intent of 
deceit, it is recommended the applicant be able to retain both the OAB and CLRP 
incentives in the amount of $30,000.

9.	Contract Eligibility. The applicant was eligible to contract for the OAB; he was not 
eligible to contract for the CHLRP.

10.	Incentive Eligibility. The National Guard Bureau states regardless of his ineligibility 
to simultaneously receive both incentives, based on the evidence it is recommended the 
applicant be able to retain both the OAB and CLRP.

11.	Length of Service Relative to the Incentive(s). The applicant completed 13 years 6 
months and 18 days of creditable service.



BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient 
evidence to grant relief. The applicant’s contentions and the advisory opinion were 
carefully considered. Based upon the preponderance of evidence, and the positive 
recommendation of the advisory official, the Board agreed there was no fault of the 
Soldier, and the record should reflect he was authorized the incentive.

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 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 showing the applicant is:

   a.	eligible to retain incentive payments received for the OAB in the amount of
$10,000 and the CLRP in the amount of $20,000; and

   b.	reimbursing the applicant any previously recouped monies for this portion of his 
incentive debt



41301









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.

//NOTHING FOLLOWS//