IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20180010470 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) * Three DD Forms 4 (Enlistment/Reenlistment Document) * Two discharge orders * DD Form 1966 (Record of Military Processing) * Prior Service Enlistment Bonus Addendum * Four DD Forms 214 (Certificate of Release or Discharge from Active Duty) * CAARNG ITF Bonus Audit * Two CAARNG Memorandums, Incentive Issue Notification * Two DD Forms 139 (Pay Adjustment Authorization) * Memorandum, CAARNG ITF, Bonus Re-Audit * Memorandum, CAARNG, Request for Debt Suspension 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. 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 11 February 2005, after having previously served in the CAARNG and being called to active duty in support of Operation Noble Eagle on two occasions, the applicant enlisted in the CAARNG a second time. a. His record contains only his Record of Military Processing, the second page of his Enlistment Document, and a copy of a prior service enlistment bonus addendum that shows in connection with his enlistment a state official offered him a 3-year enlistment bonus in the amount of $7,500. b. The initial payment of $3,750 was to be processed on the date his enlistment contract takes effect and the subsequent payment was to be processed upon completion of 3-years of service. A bonus control number was issued and both the applicant and a state official signed the addendum. The signature block indicating a state incentive manager verified it for accuracy is not complete. 4. On 2 March 2007, he was called to active duty in support of Operation Iraqi Freedom. On 11 April 2008, while assigned to Kuwait, he reenlisted for a period of 6- years. On 9 July 2007, he redeployed having served on active duty for 1 year, 4 months, and 8 days. 5. On 6 June 2012 the CAARNG Incentives Task Force (ITF) conducted and audit for his prior service enlistment incentive in the amount of $7,500. It provides the applicant was not eligible to receive the incentive due to being discharged on 18 November 2004, the soldier must have at least a 12 month break in service to qualify for the prior service enlistment bonus. 6. On 14 June 2012, a memorandum advised the applicant the CAARNG audited his prior service enlistment bonus, reenlistment/extension bonus and Student Loan Repayment incentives and noted discrepancies for a total amount of $22,500. It states no contract and payments were made in violation of National Guard Bureau Policy. 7. On 11 September 2012, a memorandum advised the applicant the CAARNG audited his prior service enlistment bonus, reenlistment/extension bonus and Student Loan Repayment incentives and noted discrepancies for a total amount of $22,500. It states no contract and payments were made in violation of National Guard Bureau Policy. The available evidence shows that Master Sergeant J___, the CAARNG state incentive manager at the time, verified and validated the incentive to be processed for payment. 8. A DD Forms 139 (Payment Adjustment Authorization), dated 2 November 2012 shows the CAARNG ITF submitted a charge for reenlistment bonus in the amount of $20,000. The reason for adjustment indicates the applicant does not have contract in iPERMS, was non duty military occupational specialty qualified, and was in MOS qualified and enlisted into an 11B Duty MOS position. Service member was not duty MOSQ because of mobilization and paid for prior service enlistment bonus (3-years) and reenlistment bonus (6-years). 9. A memorandum for record dated 19 April 2013 shows a re-audit of the applicant's reenlistment bonus determined the applicant provided sufficient documentation to substantiate his eligibility to receive his reenlistment bonus in the amount of $15,000. A DD Form 139 shows the CAARNG ITF processed a credit in the amount of $15,000. 10. On 1 April 2013 the applicant was called to active duty in support of Operation Enduring Freedom [Afghanistan] where he served 10 months and 6 days of net active service. 11. A memorandum for record dated 20 June 2013 shows the applicant's commander requested the current debt payments being assessed against the applicant be suspended immediately to relieve the applicant and his family from family hardship. The applicant was currently mobilized in support of Operation Iraqi Freedom and the credit in the amount of $15,000 had yet to be credited back to the Soldier. Additionally, the exception to policy regarding the prior service enlistment bonus in the amount of $7,500 had been received by the CAARNG ITF and he requested continued collection of that debt be suspended pending the final determination. 12. On 10 April 2017 he was transfer to the Retired Reserves. 13. On 12 September 2018 an official with the National Guard Bureau submitted an advisory opinion addressing the prior service enlistment bonus recoupments in the amount of $7,500, it states, the case was evaluated and rendered in the spirit of the National Defense Authorization Act (NDAA) 2017, based on the available evidence, the Soldier's good service, and the lack of evidence to demonstrate an intent of deceit, it is recommended the applicant retain the incentive offered to him by the CAARNG. . 14. Contract Eligibility. Based on the evidence he was eligible to enlist for a period of 3-years on 11 February 2005. 15. Incentive Eligibility. The National Guard Bureau states regardless of his ineligibility due to not meeting the 12 month break in service, based on the evidence it is recommended the applicant be able to retain the prior service enlistment bonus in the amount of $7,500. 16. Length of Service Relative to the Incentive(s). The applicant completed over 20 years of service and is currently assigned to the Retired Reserves. It is not reasonable to believe the applicant was aware a state official enlisted him and offered him incentives under a defective contract. He served satisfactorily and completed the 3- year contractual obligation tied to incentive offered to him by a state official. 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. It is not reasonable to believe the applicant was aware a state official offered him an incentive he was not eligible to receive resulting in him enlisting under a defective contract, 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 the prior service enlistment bonus in the amount of $7,500; 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. Army Regulation 135-178 (Enlisted Administrative Separations), establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and USAR, and provides: A defective enlistment or reenlistment agreement exists a result of: a. Material misrepresentation by recruiting or retention personnel, upon which the Soldier reasonably relied, and the Soldier was induced to enlist or reenlist with a commitment for which the Soldier was not qualified; or b. The Soldier received a written enlistment or reenlistment commitment from recruiting or retention personnel for which the Soldier was qualified, but which cannot be fulfilled by the Army; and c. The Soldier is required to bring the defect to the attention of appropriate authorities within 30 days after the defect is discovered or reasonably should have been discovered by the Soldier. The Soldier may request separation instead of other authorized corrective action. Service will be characterized as Honorable. 3. 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) AR20180010470 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1