IN THE CASE OF:	  

		BOARD DATE:	        21 May 2009

		DOCKET NUMBER:  AR20090002457 


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 payment of his Officer Accession Bonus.

2.  The applicant states that his direct commission packet included a witnessed Officer Accession Bonus addendum for $10,000 that was to be paid upon completion of the Officer Basic Course (OBC).  He also states that when he completed OBC he was told that career field 35D was not eligible for the bonus at the time his agreement was executed.    

3.  The applicant provides a self-authored statement, a copy of his Selected Reserve (SELRES) 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, a copy of his Service School Academic Evaluation Report, a copy of All Army Activities (ALARACT) Message Number 017/2005, and a copy of the fiscal year 2006 SELRES Incentive Program (SRIP) Policy.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U. S. Army Reserve (USAR) on 26 October  2006 for 8 years.  He enlisted for the Commissioned Officer Accession Bonus ($10,000).  Section IV (Obligation) of his SELRES Officer Accession Incentive 

Program – Accession Bonus Addendum stated he was enlisting into the 206th Support Detachment in connection with his agreement to accept an appointment as an officer serving in the SELRES.  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 $10,000 paid in one lump sum upon his successful completion of OBC.

2.  The applicant's record contains a DA Form 71 that shows he accepted appointment as a Reserve commissioned second lieutenant in the MI branch on 13 November 2006.  A Service School Academic Evaluation Report shows he successfully completed the Military Intelligence (MI) Basic Officer Leader Course on 24 October 2007.

3.  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 for the SELRES Officer Accession Bonus an individual in the USAR must meet the Headquarters, Department of the Army (HQDA) eligibility criteria published in ALARACT Message 017/2005 and the current USAR SRIP announcement in effect on the date the individual makes application for officer appointment/training.  In addition, the individual must sign an agreement to accept a commission in a critically short officer area of concentration (AOC) listed in the current USAR SRIP announcement.

4.  The Chief of the Officer Division opined that the SRIP is approved annually at the beginning of the fiscal year by the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)).  The Army National Guard (ARNG) and USAR are authorized to make a mid-year adjustment to eligible AOCs in coordination with the Director, Military Personnel Management (DMPM). The ARNG and USAR then publish their respective SRIP announcement, including any of their own additional policy restrictions for the bonus.  At the inception of the bonus the ASA (M&RA) authorized the Director, Army National Guard (DARNG) and the Chief, Army Reserve (CAR) to be more restrictive in their component-specific policy, allowing them to tailor their bonus policy to the 

needs of their component.  Under the HQDA policy a component's aggregate strength for an AOC must be below 90 percent of fill in the aggregate of all grades to be eligible for the bonus.  However, as previously stated, the CAR had the prerogative to include or exclude any otherwise eligible AOC on the USAR SRIP announcement.

5.  The advisory opinion noted that in this case the aggregate strength for AOC 35D appears to have been less than 90 percent fill in the aggregate on the USAR SRIP announcement in effect at the time of the applicant's enlistment for Officer Candidate School.  This assumption is based on the fact that 35D is listed as eligible for the SELRES Officer Affiliation Bonus but not the SELRES Officer Accession Bonus.  Both bonuses must meet the same criteria to be listed on the SRIP announcement.  The HQDA policy proponent for the SELRES Officer Accession Bonus contacted the USAR SRIP manager for the U.S. Army Reserve Command (USARC) to verify the command's position on authorizing payment of the bonus for the applicant.  The command maintains the position that AOC 35D was intentionally marked as an AOC "not qualified" for the Officer Accession Bonus.  Therefore, the recruiter who offered the bonus to the applicant and others did so without authority.  Because the USAR programs and executes the dollars and promulgates internal USAR policy for all Army Reserve bonuses (within the parameter of HQDA policy), the Army G-1 cannot compel the payment of the bonus to any individual who was not eligible.

6.  The advisory concluded by stating that nevertheless the Army G-1 recommends favorable consideration of the applicant's application in the interest of justice.  The applicant complied with all terms of the contract offered to him by the Army official (recruiter) responsible for bonus contracting.  It is unfortunate that the recruiter misread the USAR SRIP announcement and erroneously offered the Officer Accession Bonus to the applicant. 

7.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He concurred on 21 March 2009.

8.  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.

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's contention that he should be paid an Accession Bonus in the amount of $10,000 per his enlistment contract was carefully considered.


2.  The basis of the applicant's contention is the fact that when he enlisted in the USAR on 13 November 2006, his enlistment contract indicated he would be paid an accession bonus in a lump sum upon successful completion of the MIOBC.  He completed MIOBC on 24 October 2007.

3.  Notwithstanding the recommendation by the Chief of the Officer Division, Office of the Deputy Chief of Staff, G-1 who initially requested that the applicant's request be granted as a matter of equity,  the advisory opinion in itself stated 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 $10,000 accession bonus upon successful completion of MIOBC.

8.  However, if the applicant feels 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.

9.  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 would result, as an implied waiver of his contractual agreement, in his retention in the USAR in the MI branch and service in the unit and capacity which were stipulated in his contract without entitlement to the bonus.

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 without entitlement to the Officer Accession Bonus; 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 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 an implied waiver of his contractual agreement and his retention in the USAR in the MI branch and service in the unit and capacity which were stipulated in his contract without entitlement to the Officer Accession Bonus.

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)                                         AR20090002457



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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