IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180010619 APPLICANT REQUESTS: On 16 May 2018, an official with the California Army National Guard (CAARNG) requested the Army Board for Correction of Military Records (ABCMR) re-address the partial recoupment of the applicant's Officer Accession Bonus (OAB) in the decision of the ABCMR in Docket Numbers AR20140004553 dated 14 August 2014 and AR20170002269 dated 5 June 2017. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * ABCMR Docket Number AR20140004553 * ABCMR Docket Number AR20170002269 * Memorandum, National Guard Bureau, subject: Advisory Opinion [the applicant], 17 September 2018 FACTS: 22. 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. NDAA FY17 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). 23. At the time of the decision of the ABCMR in Docket Numbers AR20140004553 and AR20170002269, it was the intent of the ABCMR to make the applicant's record as administratively correct as it should properly have been at the time. a. ABCMR Docket Number AR20170004553 shows the Board recommended the applicant received partial relief for the OAB which included correcting the applicant's record to show an OAB addendum was properly executed and recouping the amount of monies for the unserved portion of his contract. An advisory from the National Guard Bureau was not requested at this time. b. ABCMR Docket Number AR20170002269 was boarded as a result of NDAA FY17 2017, Section 617(c). The National Guard Bureau submitted an advisory opinion dated 2 June 2017 stating the applicant was eligible to receive his OAB recommending he be granted 64 months of satisfactory service between 16 August 2008 and 1 December 2013 with the remaining 8 months of the OAB to be recouped for not serving the full term of service in the contracted unit. The ABCMR Docket addressed previous Board recommendation in ABMCR Docket Number AR20140004553 and in the National Guard Bureau advisory opinion; however, remained cognizant of available evidence and the Board recommendation indicated the evidence provided was void of documents establishing a debt for the OAB. 24. On 17 September 2018 the National Guard Bureau submitted a second advisory opinion specifically address the applicant's OAB in the amount of $10,000, it states, in pertinent part: a. The applicant met the criteria to contract for the OAB. He lost eligibility for the incentive, based on his signed bonus addendum, when he accepted an Active Guard Reserve (AGR) position). b. Although ABMCR Docket Number AR20140004553 recommended the applicant be granted partial relief, it is the recommendation of the National Guard Bureau the applicant be granted additional relief to retain the full amount of the $10,000 bonus based on Department of Defense Instruction 1205.21, 6.9.3 which states the Soldier should have been given an exception to recoupment. Recoupment is not required, "…if accepting an Active Guard and Reserve position or a military technician position where members in the Reserve Component is a condition of employment, and the member has served at least 6 months of the incentive contract following receipt of the initial incentive payment. c. The applicant received both his payments within the timeline indicated and therefore served the adequate amount of time prior to entering his AGR status. The guidance of DoDI 1205.21 was utilized to determine the applicant's eligibility for the incentive, making every effort to opine in favor of the applicant. 25. Based on the available evidence ABCMR Docket 20140004553 provides the applicant was eligible for the OAB in the amount of $10,000; however, state officials did not properly execute an OAB addendum. ABCMR Docket 20170004553 executed the record of proceedings based on the available evidence which was void of documentation showing a certified debt for the OAB was established. During the post- board process the National Guard Bureau identified the applicant was in fact entitled to retain the full amount of his OAB in the amount of $10,000 and requested the ABCMR readdress the error. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the advisory opinion. The Board considered the applicant’s statement, the previous ABCMR case, his service with the California Army National Guard and the conclusion of the NGB advising official. The Board found that the applicant completed his obligation and concurred with the advisory opinion that stated he served sufficient time prior to entering AGR status to retain full eligibility of the Officer Accession Bonus. The Board determined that a correction was required. 2. After reviewing the application and all supporting documents, the Board determined that relief was warranted. 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 entitled to retain all incentive monies received for his OAB in the amount of $10,000 in accordance with the addendum signed on 16 August 2008. 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 ABCMR Record of Proceedings (cont) AR20180010619 4 ABCMR Supplemental Record of Proceedings (cont) AR20180010619 1