IN THE CASE OF:	

		BOARD DATE:	 10 December 2009 

		DOCKET NUMBER:  AR20090003626 


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 authorization for a second Optometry Retention Bonus (ORB).

2.  The applicant states, in effect, that he was initially recalled to active duty for a 1-year commitment and was therefore unable to execute an ORB upon his recall.  He indicates that after receiving a 2-year extension on active duty, he applied for and received an ORB effective 1 September 2005 through 31 August 2007.  He indicates that he did not apply for a second ORB in September 2007 because he expected to apply for an early release from active duty (REFRAD) in March 2009.  Thus, he requests his ORB effective dates be changed from 1 September 2005-31 August 2007 to 18 March 2005-17 March 2007 to coincide with the date he was recalled to active duty.  He also requests a second ORB be executed for the period 18 March 2007-17 March 2009.

3.  The applicant provides the following documents in support of his application:  electronic mail (e-mail) messages, dated between 31 July 2008 and 27 August 2008; active duty recall orders, dated 8 March 2005 and 27 September 2007; active duty recall orders amendment, dated 4 December 2007; request for ORB, dated 15 November 2005; and Office of the Surgeon General (OTSG) memorandum, subject:  Request for ORB, dated 14 December 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that having been appointed a Reserve commissioned officer in the Medical Service Corps, he initially entered active duty in the rank of second lieutenant on 7 July 1978.  He served continuously until he was honorably retired in the rank of lieutenant colonel on 31 October 2001, having completed 23 years, 3 months, and 24 days of creditable military service.

2.  On 9 March 2005, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, published Orders A-03-590262 which ordered the applicant to active duty as an obligated volunteer officer on 18 March 2005 for a period of 12 months.

3.  On 26 October 2005, the applicant submitted a request for an ORB.  At that time he acknowledged his understanding of the conditions of agreement for which he would receive the ORB, which stipulated the effective date of his contract was 1 September 2005, and he agreed to serve 2 years of continuous service from that effective date.  The U.S. Army Medical Department Activity Commander approved the applicant's request.

4.  On 14 December 2005, the Chief, Army Medical Department (AMEDD) Special Pay Branch, OTSG, issued a memorandum which cleared the applicant for ORB payments effective 1 September 2005 and stipulated his 2-year obligation period was 1 September 2005-31 August 2007.

5.  On 27 September 2007, HRC published Orders A-09-719922 which recalled the applicant to active duty from a retired status effective 1 October 2007 for a period of 2 years.  These orders also show the applicant's active duty commitment would end on 30 September 2009.

6.  On 4 December 2007, HRC published Orders A-09-719922A01 which amended Orders A-09-719922 to show the applicant was recalled to active duty effective 1 February 2006 instead of 1 October 2007 and amended his active duty commitment to 3 years and 8 months.

7.  On 31 July 2008, the applicant initiated a request to the Chief, AMEDD Special Pay Branch, OTSG, indicating he was considering an early REFRAD in March 2009 and wanted to know if he would be entitled to a second ORB considering he would have completed 4 years of continuous active duty service by that time.

8.  On 27 August 2008, the Chief, AMEDD Special Pay Branch, informed the applicant that his record indicated he had an approved 2-year ORB agreement for $6,000 per year for the period 1 September 2005-31 August 2007 and that any partial renegotiated ORB to align with his intended separation of March 2009 was not an option and exceeded the authority of that office.

9.  On 3 June 2009, an advisory opinion was obtained from the Chief, AMEDD Special Branch, OTSG, which indicated that based on the applicant's adjusted active duty recall orders extending the initial period of his active duty service to 2 years, he was eligible to enter into a discretionary 2-year ORB contract for the period 1 September 2006 [sic]-31 August 2007 and was eligible to receive a second ORB in the amount of $6,000 per year for the period 1 September 2007-31 August 2009.  The applicant was provided a copy of this advisory opinion on 15 June 2009 in order to have an opportunity to respond; however, to date he has failed to reply.

10.  On 30 September 2009, the applicant was honorably REFRAD by reason of completion of required active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 4 years, 6 months, and 13 days of creditable active duty service during the period covered by the DD Form 214.

11.  An 11 December 2001 e-mail message from the Total Army Personnel Command, subject:  Army Optometry Officer Special Pay Policy, Plan, and Rates, implemented and prescribes Department of the Army policy governing the ORB for identified active duty Medical Service officers and indicates this pay is categorized as discretionary pay and is not an entitlement.  It further states, in pertinent part, that agreement execution required a 2-year active duty obligation from the effective date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should receive a second ORB for his additional 2 years of active duty service completed and that the effective dates of his ORB agreements should be changed to coincide with the date he was recalled to active duty have been carefully considered and there is sufficient evidence to support authorization for two periods of ORB eligibility; however, there is insufficient evidence to support changing the dates of the ORBs to those requested by the applicant.

2.  The evidence of record confirms that the applicant was initially recalled to active duty for a period of 12 months as evidenced by HRC Orders A-03-590262, dated 9 March 2005, and that these orders were not extended to increase his active duty commitment to 2 years until an amendment to his orders were published on 27 September 2007.  As a result, given he had not yet been given a 2-year active duty obligation at the time, there is an insufficient evidentiary basis to support changing the effective dates of his ORB agreement(s) to coincide with the date he entered active duty upon his recall from a retired status on 1 September 2005.

3.  As confirmed in the OTSG advisory opinion, the applicant was under an ORB agreement and received payment for the period 1 September 2005-31 August 2007.  Based on his active duty service, he is eligible to receive authorization for a second ORB of $6,000 per year for the period 1 September 2007-31 August 2009.

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.  showing that the applicant was eligible for and entered into a second ORB agreement for the period 1 September 2007 to 31 August 2009 and

	b.  paying to him the total $12,000 ORB due for the period 1 September 2007 to 31 August 2009, minus any ORB payments he may have already received for this period.

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 adjusting his ORB date to coincide with his initial recall to active duty date of 1 September 2005.



      __________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)                                         AR20090003626



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ABCMR Record of Proceedings (cont)                                         AR20090003626



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