IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080004512 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be authorized an Accession Bonus not to exceed $6,000 per his enlistment contract.

2.  The applicant states that effective 16 March 2006 the Army authorized an Accession Bonus for his (Selected Reserve) Officer Candidate School (OCS) enlistment option.  His enlistment documents indicate payment of the bonus in a lump sum upon successful completion of the Officer Basic Course (OBC).  He states he completed OBC on 25 January 2007.  

3.  The applicant provides his Selected Reserve Officer Accession Incentive Program – Accession Bonus Addendum; his Certificate and Acknowledgment United States Army Reserve Service Requirements and Methods of Fulfillment; his DD Form 214 (Certificate of Release or Discharge from Active Duty); his DA Form 71 (Oath of Office – Military Personnel); his appointment memorandum; and his OCS diploma.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U. S. Army Reserve (USAR) on 16 March 2006 for 8 years.  He enlisted for the Commissioned Officer Accession Bonus ($6,000).  Section IV (Obligation) of his Selected Reserve Officer Accession Incentive Program – Accession Bonus Addendum stated he was enlisting into the 323d Military Intelligence (MI) Battalion in connection with his agreement to accept an appointment as an officer serving in the Selected Reserve.  Section V (Entitlement) of the Addendum stated he would be paid an accession bonus as follows:

     1.  The bonus accrued beginning on the date the agreement was accepted by the Secretary of the Army;

     2.  The total amount of the bonus payable under the agreement became fixed upon acceptance of the written agreement by the Secretary of the Army; and

     3.  He would receive a bonus of $6,000 paid in one lump sum upon his successful completion of OBC.

2.  The applicant entered active duty on 18 July 2006 to attend OCS.  He completed OCS on 25 January 2007 and was released from active duty.           He accepted appointment as a Reserve second lieutenant, MI branch, on          25 January 2007.

3.  The applicant was ordered to active duty for 102 days with a report date to   MI OBC of 27 May 2008.

4.  In the processing of this case, an advisory opinion was obtained from the Officer Division, Office of the Deputy Chief of Staff, G-1.  That office stated that the Selected Reserve Officer Accession Bonus is one of the bonuses managed by the Army under the Selected Reserve Incentive Program (SRIP).  The Army National Guard and the USAR prepare their component’s recommendations for the SRIP on a semi-annual basis and submit them to Headquarters, Department of the Army (HQDA) for approval.  Once approved, the Army National Guard and the USAR publish their component-specific implementation guidance and all changes to eligibility criteria and/or eligible critical skills are effective on the date specified in the guidance.

5.  The advisory opinion continued that when the applicant signed an agreement for the Selected Reserve Officer Accession Bonus in conjunction with his enlistment under the OCS enlistment option, the position he was projected to be assigned to after commissioning required an officer in the MI branch.  However, the SRIP guidance in effect on the date he enlisted specified none of the areas of concentration within the MI branch were eligible for the bonus.  It could only be concluded that he was erroneously offered the bonus when he enlisted.  

6.  The advisory opinion believed it was unfortunate that the applicant was offered the bonus, but did not recommend relief as a matter of equity.  The advisory opinion noted that the Army Reserve SRIP in effect at the time of his enlistment, and even the succeeding SRIP in effect when he was commissioned, indicated none of the MI areas of concentration were eligible for the bonus.  Additionally, no other newly-commissioned MI officer in the USAR received the bonus at the time.  The advisory opinion stated that ultimately, the Army has limited funds to apply to bonuses and must ensure only those eligible to receive them do so. 

7.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded by stating that when he enlisted he was coming from the corporate world.  In that environment, he felt his hard work and commitment to do a good job were not valued.  He took great caution in reading all sign-on information, ensuring he had all documents in writing to sustain fairness upon enlistment.  It was extremely disappointing and frustrating to read that the advisory opinion recommended he not be awarded the bonus he was promised.  That is not satisfactory to him.  He has a contract with the Army that needs to be honored.  He has held up his end of the deal and he expects no less from the Army.  

8.  Title 37, U. S. Code, section 308j(b), states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to (A) accept an appointment as an officer in the armed forces, and (B) to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.  Paragraph (2)(A) states the Secretary concerned shall designate for an armed force under the Secretary’s jurisdiction the officer skills to which the authority under this subsection is to be applied.  Paragraph (2)(B) states a skill may be designated for an armed force under subparagraph (A) if, to mitigate a current or projected significant shortage of personnel in that armed force who are qualified in that skill, it is critical to increase the number of persons accessed into that armed force who are qualified in that skill or are to be trained in that skill.  Paragraph (B) states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned.  

9.  The United States Supreme Court’s opinion in United States v. Larionoff,   431 US 864 (1977) concerning military re-enlistment bonuses does not alter fundamental rules of law that (1) a service member’s entitlement to military pay is governed by statute rather than ordinary contract principles, and (2) in absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents; hence the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can the bonus amount be established through private negotiation or contract between the member and his recruiter.

10.  Army Regulation 135-175 (Separation of Officers), paragraph 6-10a, states an obligated officer will normally not be permitted to resign his office until such time as the obligated period of service is completed.  HQDA may approve acceptance of a resignation in cases involving extreme compassionate circumstances or when such action is deemed to be in the best overall interest of the officer and the Army.

11.  Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 7-3, states a Soldier may be separated by reason of a defective enlistment or reenlistment agreement when (1) as 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 (2) 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR on 16 March 2006 with assignment to the 323d MI Battalion in connection with his agreement to accept an appointment as an officer.  His enlistment contract indicated he would be paid an accession bonus in a lump sum upon successful completion of the OBC.  He completed OCS on 25 January 2007; he has not yet completed OBC.

2.  The advisory opinion noted that the applicant was offered the accession enlistment bonus in error as none of the MI areas of concentration were eligible for the bonus either at the time of his enlistment or at the time he was commissioned.

3.  The Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties, and in this case the advisory opinion offered a reasonable explanation as to why the applicant’s enlistment commitment should not be honored.  The Army has limited funds to apply to bonuses.  Those bonuses should be applied prudently to maximize the Army’s return on its investment (i.e., to offer a bonus only in instances where its purpose would mitigate a current or projected significant shortage of personnel in a particular skill).  

4.  That being said, the applicant did sign a contract.  Obligating the applicant to serve 8 years in the USAR without receiving the bonus he was promised would not be equitable.


5.  Had the applicant’s defective enlistment been discovered while he was still an enlisted Soldier, he could have requested separation.

6.  As an obligated officer, the applicant would not normally be permitted to resign until such time as his obligated period of service was completed.  The governing regulation recognizes that exceptions to the rule may sometimes be made, and HQDA may approve acceptance of a resignation in cases involving extreme compassionate circumstances or when such action is deemed to be in the best overall interest of the officer and the Army.

7.  This is a case where the applicant’s unqualified resignation should be deemed to be in the best overall interest of him and of the Army.  If the applicant desires, he may submit his unqualified resignation, it should be accepted, and he should be discharged from the Army.

8.  In the alternative, if the applicant and the Army can come to an agreement on reassigning him to a branch/unit that would have been eligible for payment of the $6,000 accession bonus, he should be offered the opportunity to transfer to the appropriate branch OBC/unit and paid the accession bonus upon completion of that OBC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xx____  ___xx___  ___xx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 by:

     a.  offering him the opportunity to transfer to a branch OBC/unit that would have been eligible for the $6,000 accession bonus and paying to him the accession bonus upon completion of the new OBC; or

     b.  if he prefers to submit an unqualified resignation, accepting his unqualified resignation as in the best overall interest of the Army and discharging him from the Army.

2.  The Board further determined that 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 paying him the accession bonus based upon assignment to an MI unit/completion of MI OBC. 




 _    ____xxxxxx______________
       CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20080004512





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ABCMR Record of Proceedings (cont)                                         AR20080004512



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