IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180011334 APPLICANT REQUESTS: an exception to policy to retain an officer’s incentive critical skill retention bonus, waiver of his debt and payment of the remainder of the officer incentive critical skill retention bonus. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum for Record dated 1 July 2018 * Alaska Army National Guard (AKARNG) Memorandum dated 12 April 2006, subject: Officer Reassignments * AKARNG Memorandum dated 4 May 2008, subject: Request to Change Skill Identifier * Applicant’s Bank Account Statement dated 2 November 2008 * AKARNG Memorandum to Applicant dated 25 July 2013, subject: Notification of Incentive Discrepancy and Exception to Policy Process * AKARNG Orders 141-005 dated 21 May 2009 * Applicant’s Memorandum dated 27 December 20014, subject: Request for Exception to Policy * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 31 January 2011 * AKARNG Memorandum for Applicant dated 15 December 2014, subject: Notification of Incentive Discrepancy and Exception to Policy Process * NGB Memorandum for AKARNG dated 17 November 2015, subject: Request for Exception to Policy for Officer Critical Skills Retention Bonus * Defense Finance and Accounting Service (DFAS) Debt and Claims Statement for Applicant dated 6 June 2018 FACTS: 1. The applicant states, in effect, he entered into a 3-year critical skill retention bonus for area of concentration 74A (Chemical Officer, General) in June 2008. A copy of his officer critical skill retention bonus contract is missing from his official military personnel file and he did not keep a personal copy. He entered into the contract in good faith and earned at least half of his bonus. He received the first half of his bonus ($6,750.00) in October 2008 as shown on his bank statement dated 2 November 2008. He feels because he completed nearly 3 years of service, he should have been paid the full bonus. He retired in January 2011. According to the National Guard Bureau (NGB), representatives could not locate a copy of his 2008 bonus contract which violates a Department of Defense (DOD) Instruction 1205.21 (Reserve Component Incentive Programs Procedures), paragraph 6.2. In June 2018, the NGB denied his request for an exception to policy. He feels that the recoupment of his partially paid bonus is an injustice. Someone made an error in 2008 by not filing the contract in his record which was discovered in November 2015. More than 10 years later, he now has a debt collection notice from DFAS. 2. With prior Regular Army service as a chemical operations specialist, the applicant enlisted in the AKARNG. In 1996, he attended the State of Alaska officer candidate school in an active duty status. On 5 October 1997, he was appointed and accepted an oath of office as a Reserve commissioned officer. 3. On 22 June 2002, two officers prepared a DA Form 1059 (Service School Academic Evaluation Report) stating the applicant had achieved course standards for the Reserve Component Chemical Officer Advance Course at the U.S. Army Chemical School. His DA Form 1059 states he met all eligibility requirements and was eligible for the area of concentration 74A specialty code. 4. The applicant served in a mobilized status on active duty from 17 April 2006 to 29 June 2007. During this period he served in Afghanistan from 29 May 2006 to 30 May 2007. Upon completion of his mobilized service he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty). His DD Form 214 shows his primary specialty code as 74A (Chemical Officer, General). 5. On 8 August 2010, the applicant electronically signed a DA Form 4187 (Personnel Action) wherein he voluntarily requested discharge from the AKARNG and subsequent transfer to the Retired Reserve effective 1 February 2011. 6. On 23 August 2010 the AKARNG issued the applicant a memorandum notifying him he was eligible for retired pay at age 60 otherwise known as the Twenty Year Letter. 7. On 9 December 2010 the AKARNG issued Orders 343-007 separating the applicant from the ARNG effective 31 January 2011 and transferring him to the Retired Reserve. Concurrently, the NGB issued Special Orders 2 AR on 4 January 2011 withdrawing the applicant’s Federal recognition effective 31 January 2011. 8. Accordingly, the AKARNG issued the applicant an NGB Form 22 showing he entered the AKARNG on 19 September 1996 and was separated effective 31 January 2011. He had served for 14 years, 4 months and 12 days during this period. He had prior active Federal service of 3 years, 2 months, and 4 days and 4 years, 4 months and 23 days of prior inactive service. His total service for retired pay was 21 years, 10 months and 29 days. His primary specialty was a chemical officer. 9. The applicant provided the following evidence in support of his application. a. An AKARNG memorandum dated 12 April 2008, showing the Assistant Adjutant General – Army for the State of Alaska approved various officer assignments including the applicant’s as a chemical officer in area of concentration 74A. He was assigned to unit identification code WPNNAA. b. An unsigned memorandum dated 4 May 2008 wherein a captain stated the applicant served as a chemical officer in area of concentration 74A with Headquarters and Headquarters Company (HHC), 207th Infantry Group. He also served as that unit’s company commander during the period from July 2006 to July 2007. His commander requested the applicant’s area of concentration be changed from 74A to 74B (Chemical Operations and Training). c. On 10 October 2008 the applicant received a cash deposit in the amount of $6,750.00 from the U.S. Army Reserve Component, DFAS Indianapolis, Indiana offices. d. On 21 May 2009, the AKARNG issued Orders 141-005 transferring the applicant from the chemical officer position in HHC, 297th Battlefield Surveillance Brigade to the assistant plans officer position for HHC, 297th Battlefield Surveillance Brigade. The date of the reassignment was effective 30 April 2009. The reason provided on this orders states it was an individual request. e. On 25 July 2013 the AKARNG, State Incentive Manager prepared a memorandum for the applicant. This memorandum lacks the applicant’s mailing address. The State Incentive Manager informed the applicant there was a discrepancy within his bonus incentive contract that required his action or he could lose eligibility status. He was informed the State had tried to resolve the discrepancy without success. The applicant had received an officer critical skills retention bonus valued at $20,000.00. The reason for the current discrepancy is the applicant had voluntarily retired which terminated his contract requiring recoupment action. He was advised he could file a request for an exception to policy within 45 days of the date of the memorandum. He was informed his bonus could be recouped under the provisions of Title 31, U.S. Code, section 3702. (In his personal statement the applicant stated he did not receive a copy of this memorandum.) f. On 15 December 2014 the AKARNG issued a second memorandum to the applicant only identifying him by his social security number. There is no mailing address on this memorandum. Again, he was advised there was a discrepancy with his bonus eligibility do to his voluntary request for retirement effective 31 January 2011 due to his completing 20 years of (inactive) service. He was informed his bonus contract obligation end date was 25 August 2011. He was advised he could request an exception to policy to retain the bonus. g. On 27 December 2014 the applicant prepared a memorandum for the AKARNG, State Incentive Manager requesting an exception to policy. The applicant stated he signed up for a 3-year retention bonus for area of concentration 74B (Chemical Officer) in 2008. He does not recall the date he signed up for the bonus. (1) In October 2008, he received the first half of the bonus not the full amount of the bonus. In 2009, his unit went through an involuntary transition from an infantry group to a battlefield surveillance brigade. He changed positions from a chemical officer to an assistant plans officer. He did not voluntarily request this reassignment though the order shows he "voluntarily" requested it. It was because of the needs of the higher headquarters who reassigned him based on their requirements. (2) In 2009 and again in 2010, he received poor officer evaluation reports and felt he was not supported by his chain of command. He felt demoralized and discouraged and knew he could no longer serve in a poor command climate. He was also told by his chain of command he probably would not get a major’s position in the AKARNG. (3) In February 2011, he retired with nearly 22 years of service. At the time he believed he had completed all his commitments. He now understands his retirement date was prior to his completing the 3 year period for the bonus. During the last few years in the AKARNG he felt he was not treated well by his superiors and their actions made it difficult to remain in the active AKARNG. He had a difficult assignment as a company commander in Afghanistan and then he was saddled with a report of survey upon his return. He also wanted to transfer to the Army Nurse Corps and his request was not processed by the State of Alaska ARNG headquarters because certain individuals were not in favor of his transfer. This experience led him to request transfer to the Retired Reserve. (4) He requested a favorable response to his request for an exception to policy and hoped personnel would look at his tenure and his extenuating circumstances. He also requested expeditious action. h. On 17 November 2015 the Chief of Personnel Programs, Resources and Manpower Division at the NGB disapproved the applicant’s request for an exception to policy because his written agreement (contract) could not be located in the applicant’s record which is a violation of DODI 1205.21, paragraph 6.2. The date of the agreement per the NGB was 26 August 2008. Further, the Army National Guard does not have the authority to approve his request. The NGB informed the applicant’s State Incentive Manager he should terminate the incentive and initiate recoupment action effective the contract start date. Additionally, he was advised to file an application with the Army Board for Correction of Military Records. i. On 6 June 2018 DFAS sent the applicant a Debt and Claims Statement informing him he owed $10,027.01 and that he had been charged interest for not making a payment. His next payment was due on 6 July 2018 in the amount of $10,037.00. The reason stated on the statement informed the applicant the debt was due to recoupment of the unearned portion of his Reserve or National Guard bonus. He was provided with information on how to appeal the debt. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the date of his assignment as a Chemical Officer, the deposit to this account (by the USAR), the date of his retirement, the absence of an incentive document and the action to recoup money previously paid to him as the result of a missing contract. The Board considered the NGB denial of his request for an exception to policy and their stated reason and the directive to terminate an incentive with an agreement date of 26 August 2008. The Board found that the applicant was paid within two months of the agreement date and departed via retirement less than three years after the agreement date. Based on a preponderance of evidence, the Board determined that recoupment of the money paid him was unjust and that he was entitled to a portion of an incentive. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XX :XXX 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 recommends that all Department of the Army records of the individual concerned be corrected to show: - An incentive document for an officer critical skills retention bonus was completed at the time of his 26 August 2008 agreement; - That he was entitled to the portion of the incentive he received on 10 October 2008, and; - That any recoupment of that amount, be returned to the applicant. 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 his entitlement to the entirely of the incentive amount. 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. Department of Defense Instruction (DODI) 1205.21 (Reserve Components Incentive Programs Procedures) governs the Reserve Component incentive programs and provides procedural guidance. It is DOD policy that incentive skills shall be used to attract and retain individuals possessing or qualifying for training in critical skills and/or critical units needed in wartime and to sustain membership and maintain readiness in the National Guard and Reserve Components. a. Paragraph 6.2 (procedures – Written Agreements) states as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specific the terms of the Reserve service commitment that authorizes the payment of the incentive to the member. b. The Secretary concerned shall determine eligible specialty skills for incentives. c. Persons whose military specialty is changed at the convenience of the Government or whose unit is inactivated, relocated, reorganized, or converted (e.g., weapons systems conversion) are entitled to continue receiving incentive payments provided they meet all other eligibility criteria, and are not separated from the Selected Reserve. d. Paragraph 6.8 (Termination and Recoupment) states if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Unless granted relief, the member must refund a prorated amount to the Government, if such termination is for certain reasons. e. Paragraph 6.9 (Exception to Recoupment) states recoupment is not required in the certain circumstances when an incentive is terminated. These circumstances include death, injury or illness, or other impairment not the result of the member’s own misconduct. Paragraph 6.9.4 states if involuntarily separated from the Selected Reserve as a result of unit inactivation, relocation, reorganization, a DOD-directed reduction in the Selected Reserve force or an involuntary call-up or mobilization. f. Paragraph 6.10 (Calculation of Refund) states unless otherwise governed in law, the amount to be refunded to the Government shall be calculated as follows: (1) The number of months served satisfactorily during the term for which an incentive was paid shall be multiplied by the monthly rate authorized by the particular incentive. The monthly rate is calculated by dividing the total incentive amount by the number of months of Service the member has agreed to serve. This calculation results in the Servicemember's "earned incentive." (2) That "earned incentive" must be subtracted from the total incentive amount paid to the individual to date (initial and any subsequent payments). (3) If the "earned incentive" is less than the total incentive amount paid, the overpayment to the individual must be recouped. If the "earned incentive" is more than the payments received to date (total of initial and any subsequent payments), that amount shall be paid in the final installment. 2. Department of Defense Financial Management Regulation (DoDFMR), Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in: a. Section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit. If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit. Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control. Conditions under which repayment will not be sought are set forth in section 0202. b. Section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control. In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011334 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1