IN THE CASE OF:	  

		BOARD DATE:	         28 August 2008

		DOCKET NUMBER:  AR20080011311 


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 reconsideration of his previously denied request that he be paid an Accession Bonus in the amount of $6,000 per his enlistment contract.

2.  In his initial request, the applicant stated that on 16 March 2006, the Army authorized an Accession Bonus for his (Selected Reserve) Officer Candidate School (OCS) enlistment option which was to be paid in a lump sum upon successful completion of the Officer Basic Course (OBC).  The applicant states that the two options previously offered by the Board are not satisfactory.  He continues, in effect, that he has no desire to submit an unqualified resignation and that it would cost the Army more to retrain him in another specialty than it would to pay him the $6,000 bonus.  The applicant states, in effect, that he is willing to accept a compromise in the form of GI Bill privileges, college loan repayment, or something else of monetary value.  He concludes that it is his hope that the Board will abide by the officer honor code which states that an officer does not lie, cheat, steal, or violate moral codes.

3.  The applicant provides a one page self-authored statement requesting reconsideration; 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 as additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004512 on 8 July 2008.

2.  The record shows the applicant enlisted in the United States Army Reserve (USAR) on 16 March 2006 for a period of 8 years with a contractual agreement to serve 6 of these years as a member of a troop program unit in the Selected Reserve and the remaining 2 years as an assigned member of the Individual Ready Reserve.  He is currently serving on active duty while attending the Military Intelligence (MI) OBC located at Fort Huachuca, Arizona with a tentative course completion date of 5 September 2008.

3.  The applicant's record shows he enlisted under the parameters of the Selected Reserve Officer Accession Incentive Program with the understanding that he was eligible for the Commissioned Officer Accession Bonus ($6,000).  Section IV (Obligation) of the applicant's Selected Reserve Officer Accession Incentive Program – Accession Bonus Addendum shows that he was enlisting to fill a specific requirement in the 323d 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:

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

     b.  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

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

4.  The applicant's record contains a United States Army Infantry School Diploma which shows he successfully completed the Officer Candidate School on 25 January 2007.  DA Form 71 (Oath of Office - Military Personnel) shows he accepted appointment as a Reserve commissioned second lieutenant in the MI branch on 25 January 2007.

5.  During the initial processing of this case, an advisory opinion was rendered by the Chief of the Officer Division, Office of the Deputy Chief of Staff, G-1.  He stated that the Selected Reserve Officer Accession Bonus is one of the bonuses managed by the Army under the Selected Reserve Incentive Program (SRIP).  He also stated that 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.

6.  The Chief of the Officer Division opined 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.

7.  The Chief of the Officer Division expressed that 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. 

8.  In compliance with the Title 10 United States Code - Armed Forces, subsection 1556 - Ex parte communications statute, a copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He essentially stated that he took great caution in reading each condition of his accession documentation prior to committing in order to ensure ensuring he had all documents in writing to sustain fairness upon enlistment.  He expressed his extreme disappointment, frustration, and dissatisfaction upon reading the unfavorable advisory opinion.  The applicant stated that 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.  The applicant stated, in effect, that he is willing to accept a compromise in the form of GI Bill privileges, college loan repayment, or something else of monetary value.  He concluded that it is his hope that the Army will abide by the officer honor code which states that an officer does not lie, cheat, steal, or violate moral codes.

9.  Title 37, United States Code - Armed Forces, 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.

10.  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.

11.  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.

12.  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's contention that he should be paid an Accession Bonus in the amount of $6,000 per his enlistment contract was carefully considered and found to be without merit.

2.  The basis of the applicant's contention is the fact that when he enlisted in the USAR on 16 March 2006, his enlistment contract indicated he would be paid an accession bonus in a lump sum upon successful completion of the MIOBC.  He completed OCS on 25 January 2007 and is projected to complete MIOBC on 5 September 2008.

3.  The Chief of the Officer Division, Office of the Deputy Chief of Staff, 
G-1 noted that the applicant was offered the accession enlistment bonus erroneously due to the fact that no areas of concentration within the MI branch were eligible for the bonus either at the time of his enlistment or at the time he was commissioned.  He also noted that the Army has limited funds to apply to bonuses and that they should be applied prudently to maximize the Army’s return on its investment by ensuring that only those eligible to receive them do so.  Additionally, in the interest of equity, no other newly commissioned MI officer in the USAR received the bonus at the time.

4.  According to the fundamental rules of law, the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties.  However, the applicant did sign a contract in good faith.  Requiring the applicant to uphold his portion of the contractual obligation by serving 8 years in the USAR without receiving the bonus he was promised would not be equitable.

5.  If this discrepancy had been discovered during the applicant's tenure as an enlisted Soldier, he could have requested separation under the provisions of Army Regulation 135-178 based upon a defective enlistment.

6.  Voluntary separation prior to the end of their commitment is not typically an option for an obligated officer.  However, Army Regulation 135-175 provides 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.  It is in the best interest of the Army to retain the applicant in the MI branch and have him serve in the unit and capacity which were stipulated in his contract, but to forego the erroneous portion of the contract which stated that he would receive a $6,000 accession bonus upon successful completion of MIOBC.

8.  As an 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.

9.  Finally, if the applicant is compelled to request separation, 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.

10.  In any event, the applicant should be provided a period of 90 days, following the adjournment of the Board, in which to choose his desired course of action.  Failure to elect an option within the established suspense should result in his retention in the USAR in the MI branch and service in the unit and capacity which were stipulated in his contract.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__X____  ___X___  ___X_____  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 be retained in the MI branch and serve in the unit and capacity which were stipulated in his contract;

	b.  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

	c.  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 applicant has a period of 90 days, from the date of the Army Board for Correction of Military Records Record of Proceedings, in which to choose his desired course of action.  Failure to elect an option within the established suspense will result in the applicant's retention in the USAR in the MI branch and service in the unit and capacity which were stipulated in his contract.

3.  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 completion of MIOBC and assignment to an MI unit. 




      _______ _  X _______   ___
               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)                                         AR20080011311





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ABCMR Record of Proceedings (cont)                                         AR20080011311



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