ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS BOARD DATE: 19 February 2019 DOCKET NUMBER: AR20180010519 APPLICANT REQUESTS: On 1 November 2017, Captain P , an official with the California Army National Guard (CAARNG) contacted an analyst with the Army Board for Corrections of Military Records (ABCMR) regarding the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170004184, dated 2 June 2017 stating the Board initially granted relief for time served during his contractual period and requested a waiver of recoupment in the amount of $60,000; however, the Deputy Assistant Secretary of the Army (Review Boards) found that relief was not warranted and requests ABCMR determine the appropriate course of action to consider the applicant's time served for relief based on other CAARNG with similar circumstances. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * ABCMR Docket AR2017004184 * Four DD Forms 4 (Enlistment/Reenlistment Document) * Four DD Forms 1966 (Record of Military Processing) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * Annex A to DD Form 4 (Enlistment/Reenlistment Agreement) * DA Form 368 (Request for Clearance form U.S. Army Reserve) * Three DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Five discharge orders * Seven transfer orders * CAARNG Incentives Task Force (ITF) Audit * Memorandum, CAARNG Recoupment Notification * DD Form 139 (Pay Adjustment Authorization) * Retirement Points Statement * Letter, Army Review Boards Agency (ARBA) Opt-Out * Memorandum, National Guard Bureau Advisory * Letter, ARBA Exparte FACTS: 30. 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. 31. At the time of the decision of the ABCMR in Docket Number AR20170004184 on 2 June 2017, it was the intent of the ABCMR to comply with NDAA FY 2017, Section 617(c) and the Secretary of the Army Memorandum dated 4 January 2017, to: a. Determine if the applicant was eligible for the incentive contract(s) or eligible for the payment(s) received, and if the full length of time tied to the contractual obligation was served. b. Determine if 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. 32. The ABCMR's decision in Docket Number AR20170004184 dated 2 June 2017, provides the board determined the evidence is sufficient to warrant full waiver of recoupment for satisfactory time served during his contractual obligation and recommends a request for waiver of recoupment in the amount of $60,000 has been approved. The Board was unable to determine that applicant knew or reasonably should have known he was ineligible to all of the incentive payment received. He relied on the expertise of state incentive officials in regards to the incentive payments received through no fault of his own. 33. A review of the applicant's records revealed a multitude of administrative errors and irregularities throughout his career. 34. On 28 March 1991 applicant initially enlisted in the CAARNG for a period of 8 years establishing an expiration term of service (ETS) was 27 March 1999. * He successfully completed initial active duty training (IADT) and was awarded MOS (Heavy Antiarmor Weapons Crewmember). * His record is void of orders discharging him from the CAARNG for meeting his ETS or the United States Army Reserve (USAR) for meeting his 8 year military service obligation (MSO). 35. On 20 October 1999, a record or military processing shows he enlisted in the CAARNG a second time for 2 years, 5 months and 10 days for military occupational specialty 95B (Military Police) and established an ETS of 29 March 2002. His record is void of a DD Form 4, bonus addendum or evidence that shows a bonus control number (BCN) or other entitlement to incentives; however, his Enlistment/Reenlistment agreement signed by the applicant and a state official is available for review, as well as, a request for clearance to support the date of enlisted. 36. On 4 October 2001, the applicant extended his enlistment of his contract dated 20 October 1999 for a period of 3 years establishing an ETS of 30 March 2005 [The extension timeline is miscalculated; initial ETS should be 29 March 2005 and Extension ETS would be 28 March 2005]. 37. On 9 October 2001 through 2 September 2002 he was called to active duty and mobilized in support of Operation Noble Eagle. He served 10 months and 24 days of net active service. 38. On 3 January 2005 through 9 December 2005 he was called to active duty and deployed in support of Operation Iraqi Freedom. He served 11 months and 7 days of net active service. 39. Hs records are void of evidence showing he was extended and/or reenlisted while in theater, as well as orders discharging him from the CAARNG; however, on 5 April 2005, U.S. Army Human Resources Command honorably discharged the applicant from the USAR for meeting his military service obligation although he met his MSO in 1999. 40. On 10 August 2006 the applicant enlisted in the CAARNG for 1 year under the "TRY ONE IN THE GUARD" enlistment option, his record of military processing, signed the applicant and a state official, shows he was enlisting for MOS 92G (Cook) and a bonus control number "P06908010012CA." He established a new ETS of 9 August 2007. His record is void of addendums or other evidence that would show the type of incentive or the amount he may have enlisted for. 41. On 15 August 2005, U.S. Army Human Resources Command published a second set of orders discharging him from the USAR for meeting his MSO. 42. From 11 September 2001 through 12 December 2002, he was transferred between four units in a variation of duty MOS's; none of which he held or contracted for. 43. On 9 August 2007 he was honorably discharged from the CAARNG for meeting his ETS. 44. On 12 September 2007 the applicant enlisted in the CAARNG for 1 year establishing an ETS of 11 September 2008. His record provides a partial copy of his record of military processing that only provides he enlisted for MOS 92G. His record is void of addendums or other evidence that would show any incentives he may have enlisted for. 45. From 29 November 2007 to 5 January 2008, he was transferred between two unit in varied duty MOS's; none of which he held or contracted for. 46. On 9 June 2008 he was discharged from the CAARNG for unsatisfactory participation. His service was characterized as general, under honorable conditions. His record is void of evidence showing the commander took appropriate action to declare him an unsatisfactory participant (U-Letters, UNSAT notification or separation notification, etc.) 47. On 27 June 2008, U.S. Army Human Resources Command published a third order discharging the applicant for meeting his MSO. 48. On 15 July 2008 the applicant enlisted in the CAARNG for 1 year and established an ETS of 14 July 2009. His record of military processing shows he enlisted for MOS 19K (M1 Armor Crewman). His record is void of addendums or other evidence that would show any incentives he may have enlisted for. 49. On 13 May 2009 he was transferred to a new unit of assignment in duty MOS 11B a duty MOS he was either contracted or qualified for. 50. On 14 July 2009 he was discharged honorably from the CAARNG for meeting his ETS. 51. On 12 December 2012 a CAARNG Incentives Task Force (ITF) conducted and audit for a reenlistment/prior service bonus in the amount of $60,000, it states, the applicant does not have a written agreement in his records [iPERMS]; the system of record provides five bonus control numbers showing he was paid $60,000 in increments of $7,500. Additionally, his contract eligibility could not be determined because they did not have a date of when he could have possibly signed an addendum. He was never eligible for payments due to not having a written agreement and for never extending for a time period for more than 1 year at a time. The audit provides reports printed on 23 February 2012 from Information Management and Reporting Center (iMARC) that shows a multitude of discrepancies. a. A history of changes for all SRIP contracts shows six bonus control numbers with the effective date and bonus amount. The type of incentive is not associated with any of the bonus control numbers. Although a status may currently read as "suspend" or "terminate" in the far left of the report, the information provides what was initially validated and processed for payment and shows each state official and/or state incentive manager who were associated with the bonus control numbers. The report does not show payments in the amount of $60,000 were processed. Payments Processed Control Number Effective Date Amount Paid Suspended R07090013CA 6 September 2007 $15K No payment information provided R07080019CA 9 August 2007 $15K $15,000 (lump sum) NA R05120047CA 9 December 2005 $15K $15,000 (in 2 payments) NA P079090011CA 12 September 2007 $15K $7,500 $7,500 P069080012CA 10 August 2006 $15K $7,500 $7,500 CONVERSION 2 April 1999 $2,500 $1,250 NA Total paid: $46,250 b. A history of contract actions that shows information for only four bonus control numbers and five of the eight payments. * R05120047CA shows it was requested by a state official and validated and approved by the state incentive manager (MSJ T J ) for two payments in the amount of $7,500 each * P069080012CA shows it was requested by a state official and validated by a state incentive manager (MSG T J ) for one payment in the amount of 7,500 * RO70080019CA shows it was requested and validated by the state incentive manager (MSG T J ) for one lump sum payment in the amount to $15,000 * P079090011CA shows it was requested by a state official and validated by the state incentive manager (MSG T J for one payment in the amount of $7,500 c. A Defense Finance and Accounting Services (DFAS) payment history shows eight payments were made in increments of $7,500 each. The Transaction Identification Number (TIN) shows code "D13" which identifies the payments were processed as manual payments vice regularly generated payments [TIN code: B3] through the system of record. The payments are not associated to a bonus control number or an account number they were disbursed to. * 11 January 2006 * 21 December 2005 * 4 January 2006 * 18 January 2006 * 21 April 2006 * 18 September 2006 * 6 October 2006 * 12 January 2006 d. A SRIP Remarks report shows bonus control numbers and the information for the incentive program and responsible state official associated to it. Control Number Bonus Type State Official INIT Comment R07090013CA RS 6YR Critical Unit/MOs REENL; 92G R07080019CA R05120047CA REB P079090011CA PSEB RS Prior SVC Six year ENL; MOS 92G P069080012CA REB CONVERSION REB TJ Terminated in 2000 for AWOL 30 JUL 00 52. On 19 September 2018, an official with the National Guard Bureau provided an advisory recommending partial recoupment allowing the applicant to retain $15,000 and the remaining $45,000 be recouped. It states, in effect, in pertinent part, his military records present an incomplete and conflicting military history missing contracts and housing contracts with overlapping services time. a. Based on the evidence the applicant was not eligible to contract for any of the bonus incentives received. The system show five bonus control numbers exist within the system that were paid in eight payments in increments of $7500. Two bonus control numbers overlap with the service time frame associated with the Prior Service Enlistment Bonus. b. Although he was not eligible for the $15,000 bonus and his contract for his reenlistment on 10 August 2006 is missing, the available evidence shows the CAARNG did offer the applicant a $15,000 REB and he satisfactorily served the contractual obligation in which the bonus was associated with. 53. CAARNG established a debt in the amount of $60,000. An official with the National Guard Bureau recommends partial relief, granting the applicant $15,000 and recouping the remaining $45,000; however, the available evidence provides a significant amount of administrative error and irregularity took place in the contractual and bonus processing of the applicant. His available military records do not provide an accurate accountability of required documents to identify bonus control numbers or what the applicant may or may not have been offered at the time of his enlistments; a. The National Guard Bureau does not address the evidence provided by the ITF audit and system of record used at that time is conflicting with each report providing different information not consistent with the next report and/or no information at all; specifically, the DFAS payments detailed report establishes a timeline associated with the bonus control numbers and shows six bonus control numbers and payments processed totaling $46,250 not $60,000; and four of the bonus control numbers issued had effective dates during times the applicant was not in the service. (1) National Guard Regulation 600-7states the unit commander will certify the Bonus report to verify eligibility for payment or cause for suspension or termination and submit the original report to the state incentive manager on a transmittal letter; and the state incentive manager will verify continued eligibility for payment and correct duty date or the proper codes and dates for suspension or termination. The state incentive manager will submit verification in accordance with state policy to the military pay branch. (2) Neither the CAARNG nor the National Guard Bureau address six bonus control numbers; the discrepancy in the reports, to include the amounts shown as paid and/or suspended [never paid] addressing this discrepancy or showing the account the payments were processed to and most importantly the four bonuses shown as established during periods the applicant was not in the service. b. The applicant was not eligible to enlist in the "TRY ONE" program because he had already completed 10 years of service; however, a state official enlisted him for "one year" terms his last three enlistments for MOS 92G and 19K. According to Army Regulation 135-178 a state official enlisted the applicant for training in MOS's his "one year" term precluded him from meeting the service obligation associated to each MOS. Additionally, his records show he enlisted for specific MOS's and was transferred a myriad of time amongst units in duty MOS's the applicant was neither contracted for nor qualified for. It is not reasonable to believe the applicant was aware a state official enlisted him under a defective contract. 54. Based on the available evidence it is not reasonable to believe the applicant was aware state officials failed to follow the proper administrative processes, enlisted under defective contract or established contract dates during periods he was not in the service. a. His retirement points statements shows he served 14 years, 2 months and 10 days of creditable service for retirement, to include two tours in support of OEF and OIF. b. His record and the ITF audit show a multitude of error and conflicting information that does not allow us to determine the actual bonus type, why bonus control numbers were requested by state officials and contracts were established by the state incentive manager (MSG T_ J ) during a period the applicant was not in service, what payments were actually processed, why they were processed manually and who account they were processed to. //NOTHING FOLLOWS// BOARD DISCUSSION: After review of the application, all evidence, and the previous ABCMR Docket, the Board determined to grant partial relief in the sum of relieving $15,000 of the debt. Based upon the National Guard offering a $15,000 incentive to the applicant upon enlisting and the applicant completing the required service for that incentive, the Board found that portion of the recoupment should be waived. However, the Board found that the remaining $45,000 was never part of any incentive offered and the applicant known or should have known that the $45,000 was truly an overpayment. As such, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X :X :X :X :X :X :X :X :X :X :X :X :X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board determined to grant partial relief in the sum of relieving the applicant of $15,000 of the total $60,000 debt. Therefore, the applicant is responsible for the remaining $45,000 overpayment. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge under other than honorable conditions. 3 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): NA 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. Army Regulation 135-7 (Incentive Programs), establishes a single reference for incentives authorized within the Army Reserve National Guard of the United States (ARNGUS) and the United Army Reserve (USAR). a. Chapter 1, provides commanders are responsible for initiating recoupment procedures whenever a soldier’s entitlement to an incentive is terminated and recoupment is indicated in this regulation. b. Chapter 2 provides enlistment bonus entitlement will stop if the Soldier becomes an unsatisfactory participant or separates from enlisted status in a Selected Reserve unit of the ARNGUS or USAR for any reason, except when separated for an authorized period of non-availability. 4. Army Regulation 135-91 (Service Obligations, Methods of Fulfilment, Participation Requirements, and Enforcement Procedures), defines ARNGUS and USAR service obligations and prescribes policy and procedures governing the various types of service obligations and participation requirements. Chapter 4 governs absences and provides, in part, that: a. Any absence not authorized by the approving official is considered unexcused. A Soldier is an unsatisfactory participant when nine or more unexcused absences occur during a 1-year period. Unit commanders will notify Soldiers with unexcused absence(s) by prescribing a letter of instructions-unexcused absence [U-Letters]. The first notification commences with the fourth unexcused absence and each succeeding unexcused absence up to, and including the ninth absence in a 12-month period. b. Delivery of the letter will be either in person or by U.S. mail. If mail is used in lieu of deliver in person, the first notification will be sent by certified mail, return receipt requested and the remaining notification(s) will be sent by first class mail. The notice will be mailed during or immediately following the unit training assembly (UTA) or multiple unit training assemblies (MUTA) from which absent. Whether notices required are delivered in person or sent by U.S. mail, a copy of each notice, and the following will be place in the soldiers personnel file. (1) When the notices are personally delivered, the Soldier's signature will be obtained on the file copy as acknowledgment of receipt. (2) When certified mail is used, a copy of the notice and either a post office receipt confirming delivery or the returned unopened envelope showing the notice was not delivered. Mail refused, unclaimed, or otherwise not delivered may not be used as a defense against unexcused absences when the notices were correctly addressed. (3) The commander's statement showing his or her decision as to whether the reason which prevented the soldier from attending training assembly which resulted in a declaration of unsatisfactory participation was valid or any emergency. The facts or circumstances on which the decision is based will be included in the statement. c. When it has been determined that an ARNGUS or USAR enlisted soldier is an unsatisfactory participant, the immediate commander will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant as prescribed. 5. 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. 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. 6. National Guard Regulation 600-7 (Selected Reserve Incentive Programs), provides Army National Guard policies and implementation of Selected Reserve Incentive Programs. It sets responsibilities, suspension, termination, and recoupment requirements, and prescribes processing and payment procedures. It provides in provides in part, that for enlistment bonus payment, suspension, or termination procedures, the unit commander will: a. Certify the Bonus report to verify eligibility for payment or cause for suspension or termination and submit the original report to the state incentive manager on a transmittal letter; and b. The state incentive manager will verify continued eligibility for payment and correct duty date or the proper codes and dates for suspension or termination. The state incentive manager will submit verification in accordance with state policy to the military pay branch. 7. Army Regulation 614-200 (Enlisted Assignments and Utilization Management) provides guidance on the selection of enlisted Soldiers for assignment, utilization, reclassification, detail, transfer, and training. It provides a Soldiers attending service schools will incur a service remaining requirement (SRR). Table 4-1 (Service Obligation for Training) provides the course length (in weeks) and the SRR (in months). 8. The "TRY ONE" enlistment option was offered by the Army Guard and Air National Guard to active duty veterans and all prior service individuals, with less than 10 years, who were joining or rejoining the Guard for the first time. The program lets you try the Guard for one year without additional commitment. The program was discontinued on 1 April 2009.