IN THE CASE OF: BOARD DATE: 20 February 2020 DOCKET NUMBER: AR20180010476 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 copies of orders, Military Occupational Specialty (MOS) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * National Guard Bureau Form 600-7-3-R-E (Reenlistment/Extension Bonus Addendum * CAARNG ITF Audit, Reenlistment Bonus ($2,000) * CAARNG ITF Audit, Reenlistment Bonus ($15,000) * Memorandum, CAARNG ITF, subject: Request for Documentation Supporting Your Incentive(s) * Three DD Forms 139 (Pay Adjustment Authorization Form) * Memorandum, National Guard Bureau, subject: Advisory Opinion [the applicant] 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. The evidence submitted by the CAARNG ITF shows recoupment action for a reenlistment bonus incentive in the amount of $2,000 and one in the amount of $1,042. On 3 November 2014 the Soldier Incentives Assistance Center processed a Pay Adjustment Authorization showing the reenlistment bonus was re-audited and the applicant was found to be fully eligible for the incentive payment in the amount of $2,000. Based on this, the remainder of the Record of Proceedings will only address the reenlistment bonus recoupment in the amount of $1,042. 3. On 30 May 2005, as a staff sergeant, the applicant extended current term of service for 6 years. In conjunction with his extension both the state official and the applicant signed a reenlistment/extension bonus addendum, it shows, the applicant initialed the line that indicated he was extending for 6 years as was to receive a $15,000 lump sum payment on the date his extension contract takes place. He "understood that the law prohibits payment in the amounts from including any portion of a reenlistment or extension bonus that when added to a member's total years of service exceeds 24- years' time in service (TIS); therefore, soldiers with more than 18 years' time in service as of their current ETS date may extend or reenlistment for 3 or 6 years and receive a pro-rated payment up to 24 years. Any portion of additionally obligated service beyond 24-yers will not be included in the calculation or payment of the bonus. 4. A CAARNG ITF Bonus Audit Form dated 7 June 2012 shows the applicant extended for a $15,000 reenlistment bonus to be paid in a lump sum. At the time he extended he had 18 years' time in service; however, he lost eligibility on 3 May 2012 when his time in service exceeded 20 years, violating Title 37 United States Code Section 308(b) paragraph (a) and National Defense Authorization Act Fiscal Year 2006. He was only eligible to receive a bonus payment in the amount applicable to his service from 11 October 2006 to 30 May 2012. The audit provides documents from Information Management and Reporting Center (iMARC), the system utilized at the time, by state officials to manage incentives and bonuses: a. A screenshot of Defense Finance and Accounting System Payments showing a payment of $7,500 was processed on 25 October 2005 and a second payment of $7,500 was processed on 27 October 2006. The transaction identification number (TIN) "D13" indicates the payment was processed manually vice through the automated system which would show as TIN B03. b. A History of Changes for All Selected Reserve Incentive Program (SRIP) contract shows that applicant input his contract into iMARC [only retention personnel have access to iMARC] which submitted them to CAARNG state incentive manager J___ who was the authority for validating the contract and verifying the amount of incentive eligible to received. An official with the National Guard Bureau provides that iMARC required certain levels of payments to be processed in two payments vice one lump sum payment. 5. On 1 November 2012, a memorandum advised the applicant the CAARNG audited his reenlistment bonus and Student loan repayment incentives and noted discrepancies for a total amount of $3,042. It states, "No Contract, Payment made in violation of federal law, and payments were made in violation of National Guard Bureau Policy." 6. A Pay Adjustment Authorization Form dated 17 January 2013 shows the CAARNG ITF submitted a "Credit" for the REB in the amount of $2,000 and indicates the applicant provided the missing bonus addendum and other supporting documentation for his incentive. A re-audit was conducted after the applicant provided missing documentation. A $2,000 credit is submitted; however, 2nd REB recoupment in the amount of $1,042 is still subject to recoupment. 7. A second Pay Adjustment Authorization Form dated 17 January 2013 shows a reenlistment bonus incentive charge in the amount of $1,042. The reason indicates the applicant received incentive funds erroneously. 8. His record provides a copy of an Army National Guard Retirement Points Statement that shows the applicant served in three deployments and one mobilization. 9. On 11 September 2018, an official with the National Guard Bureau submitted an advisory opinion regarding the applicant's recoupment in the amount of $15,000. It states, in pertinent part, the applicant was eligible to contract for the incentive; however, he was only eligible for payment of the incentive up to the point he reached 24-years of time in service. a. The applicant signed a bonus addendum that shows he initialed by the line "I understand the law prohibits payment in the amounts from including any portion of a reenlistment or extension bonus that when added to a member's total years of service exceeds 24-years' time in service (TIS). b. The applicant reached 24-years of service on 3 May 2012. Based on this it is recommended he retain portion of his bonus for time served prior to 30 May 2012, with the remaining total being recouped. 10. 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) contract 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 the he or she was not entitled to the payment(s). 11. Contract(s) Eligibility. The applicant was eligible for the Reenlistment/Extension contract established on 30 May 2006. 12. Incentive(s) Eligibility. Based on the available evidence the applicant was eligible to receive a pro-rated amount of the $15,000 bonus connected to his 6-year reenlistment/extension. 13. Length of Service Relative to the Incentive(s). At the time the applicant contracted for the $15000 reenlistment bonus he had over 18 years of service. The available evidence provides a signed bonus addendum where the applicant acknowledges the law prohibits him to the portion of the incentive that exceeds 24-years' time in service; he would receive a pro-rated bonus. However, the bonus addendum clearly defines that the portion of additionally obligated service beyond 24-years would not be included in the calculation or payment of the bonus. a. The available evidence shows the applicant was a staff sergeant at the time he executed the aforementioned reenlistment contract and served in the CAARNG for over 24 years. The applicant's military personnel records jacket was not provided and iPERMS does not have documents to refer to, however, iPERMS does provide the applicant obtained the grade of Sergeant Major (E9/SGM) and available evidence shows he was called to active duty in support of his contingency operations on four occasions. b. iMARC evidence indicates at the time of his reenlistment/extension he was executing additional/appointed duties of a unit retention noncommissioned officer (NCO); however, the CAARNG state incentive manage was responsible for verifying his service and validating the amount of incentive to be processed to DFAS. He was paid the entire amount vice the required pro-rated amount through no fault of his own. c. NDAA for Fiscal Year 2006 and National Guard Bureau advisory provides the law prohibited payment of bonus incentives for service beyond 24-years. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. The Board noted that although the applicant was not responsible for the amount of incentive payment verified and validated at the CAARNG State Incentive Manager level, it is reasonable to believe the applicant was aware that he was not eligible to receive the full amount of the $15,000 reenlistment bonus based on the bonus addendum he signed acknowledging the law and that he was to receive a pro- rated payment up to 24-years of service. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s recoupment of $1,042. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION 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. 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 that 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 to determine if any incentive payments paid to any member has been recouped and whether the recoupment was warranted. 2. National Defense Authority Act Fiscal Year 2006, Sect 630. Reenlistment Bonus for Members of the Selected Reserve and amends: (a) Eligibility of Senior Enlisted Members. Subsection (a)(1) of section 308b of Title 37, United States Code, by striking "16 years of total military service" and inserting "20 years of total military service); and (b) Computation of Bonus Amount. Subsection (b) of such section by adding at the end of the paragraph; "(3) Any portion or term of reenlistment or extension of enlistment of a member that, when added to the total years of service of the member at the time of discharge or release, exceeds 24 years may not be used in computing the total bonus amount. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010476 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180010476 7 ABCMR Record of Proceedings (cont) AR20180010476 6