IN THE CASE OF:	  

		BOARD DATE:	       16 JULY 2009

		DOCKET NUMBER:  AR20090004382 


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 correction of his records to show he occupied a valid vacancy upon appointment in the Arizona Army National Guard (AZARNG) on 9 March 2007 and payment of an accession bonus.

2.  The applicant states that he was appointed a second lieutenant (2LT) in the AZARNG on 9 March 2007 and that although there was a vacant military police platoon leader position that he could have occupied on that date, he was appointed in an excess position within the 860th Military Police Company.  This action prevented him from getting an officer accession bonus.  He adds that although his chain of command acknowledged the administrative error, the National Guard Bureau (NGB) refused to correct this injustice and pay the bonus. 

3.  The applicant provides a copy of the NGB disapproval memorandum, dated 9 January 2009; a copy of the AZARNG G-1 exception to policy request, dated 28 November 2008; copies of memoranda, dated 29 October and 5 November 2008, by his former company and battalion commanders pertaining to the administrative error; a copy of the Unit Manning Report, dated 30 April 2007; copies of Orders 072-612 and 215-609, issued by the AZARNG on 13 March 2007 and 2 August 2008; a copy of his DA Form 1059 (Service School Academic Evaluation Report), dated 17 September 2008; and a copy of his NGB Form 62E (Application for Federal Recognition), dated 9 March 2007, in support of his request; and on 15 July 2009, he provided a listing of critical officer area of concentration (AOC) list.  


CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the AZARNG, the applicant's records show he submitted an application for Federal Recognition as an ARNG officer on 14 February 2007.  His request was endorsed by the commanding officer of Detachment 1, 860th Military Police Company, Tucson, AZ, who indicated that the applicant's appointment was desired to fill a military police platoon leader position within his company vice a vacant position.  However, the word "vacant" is crossed out and a hand-written "excess" is written in its place on the form. 

2.  Subsequent to various endorsements, the applicant's request for appointment was approved and he was accordingly appointed as a 2LT in the AZARNG and he executed an oath of office on 9 March 2007. 

3.  On 13 March 2007, the Joint Forces Headquarters, AZARNG, published Orders Number 072-612, appointing the applicant a 2LT in the AZARNG.  He was also assigned to an "excess" platoon leader position in Detachment 1, 860th Military Police Company, Tucson, AZ, effective 9 March 2007.  The position he was slotted against was occupied and the incumbent would not have vacated this position until 7 June 2007.  The incumbent became the company executive officer on that date.

4.  During the month of August 2007, the applicant received a change of rater Officer Evaluation Report (OER) which covered 5 months of rated time, from 9 March 2007 (the date of his appointment) through 2 August 2008 (the date he was assigned to a valid platoon leader position).  His Rater was his company commander, captain (CPT) Mxxxxxxxxx and his senior rater was his battalion commander, lieutenant colonel (LTC) Jxxxxx.  The OER shows the following duty description:

“Platoon leader of a Military Police Operations platoon.  Responsible for the combat readiness, training, morale, and welfare of a 45 person platoon.  Responsible for providing support for area security, force protection, mobility, operations, law and order, police intelligence operations, internment operations and civil disturbance mission at no notice.  Accounts and maintains over half a million dollars worth of assigned equipment.”

5.  On 2 August 2008, the Joint Forces Headquarters, AZARNG, published Orders Number 215-609, releasing the applicant from his "platoon leader-excess" position and assigning him to a valid "platoon leader" position within the 860th Military Police Company, Tucson, AZ, effective 2 August 2008.

6.  The applicant completed the Military Police Basic Course which he attended from 6 July 2008 through 17 September 2008.

7.  On 5 November 2008, in a memorandum addressed to the 198th Regional Support Group, the 860th Military Police Company’s higher headquarters, the applicant’s former company commander, CPT Mxxxxxxxxx, remarked that the applicant was assigned to his company as a platoon leader in March 2007 and that he served in that position and drilled with the unit. 

8.  On 29 October 2008, in a memorandum addressed to the Joint Forces Headquarters, AZARNG, the current commander of the 198th Regional Support Group remarked that after conferring with the applicant’s former company commander, CPT Mxxxxxxxxx, he determined that the AZARNG G-1 should correct the applicant’s records to show he occupied a platoon leader position since his appointment in the ARNG and as such he should be entitled to an officer accession bonus.  He also remarked that there was never a decision to place the applicant in an excess position or deny him the bonus.

9.  On 28 November 2008, in a memorandum addressed to the NGB, the AZARNG G-1 requested an exception to policy to grant the applicant an accession bonus, effective 9 March 2007, on the date of his accession.  The AZARNG G-1 added that the applicant was assigned in an excess status, that his chain of command acknowledged this administrative error and that the applicant should have been assigned as a platoon leader to a position that was vacant at the time. 

10.  On 9 January 2009, in a memorandum, the Chief, Education, Incentives and Employment Division, NGB, denied the request for an exception to policy.  The Chief added that in accordance with paragraph 1-7a of Army Regulation 135-7 (Incentive Programs) an incentive is offered when a valid vacant position exists and that the applicant was assigned to an excess position.  The Chief also added that the State incentive manager is responsible for validating bonus applications and the issuance of bonus control numbers and that a bonus control number was never generated by the State which makes the applicant ineligible for the bonus. 

11.  NGB Policy Number 07-06, in the form of a memorandum, dated 10 August 2007, titled: Selected Reserve Incentive Program (SRIP) Guidance for Fiscal year (FY) 2007, 10 August 2007 to 31 March 2008, provides, in pertinent part, for Officer Accession Bonus Options.  It states that:



	a.  the ARNG offers a $10,000 Officer Accession Bonus to newly commissioned officers and newly appointed warrant officers who agree to serve 6 years in a critical UIC (Unit Identification Code).  Additionally, officers and warrant officers must serve in a valid AOC (area of concentration) vacancy within their chosen UIC.  The Critical UIC Officer Accession Bonus will be paid in lump-sum payment upon successful completion of the Officer Basic Course (OBC) or Warrant Officer Basic Course (WOBC) as applicable; and

	b.  the ARNG offers a $10,000 Officer Accession Bonus to newly commissioned officers and newly appointed warrant officers who agree to serve 6 years in an MTOE (Modified Table of Organization and Equipment) unit.  Additionally, officers and warrant officers must serve in a valid AOC vacancy within their chosen UIC.  The MTOE Officer Accession Bonus will be paid in two 50 percent installments.  The first 50 percent installment ($5,000) will be paid upon successful completion of OBC/WOBC, as applicable, and the second
50 percent installment will be processed for payment on the third year anniversary of commission or appointment. 

12.  Army Regulation 135-7 establishes a single reference for incentives authorized within the Army National Guard and the Army Reserve.  Paragraph   1-7 of the regulation states, in pertinent part, that Selected Reserve incentives will be offered in designated units and selected skills only when a valid position vacancy exists.  Valid position vacancies are either current or projected from the unit’s organization tables.  These tables include Tables of Organization and Equipment (TOE), Tables of Distribution and Allowances (TDA), Modification Table of Organization and Equipment (MTOE), and Modification Table of Distribution and Allowances (MTDA).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he occupied a valid position on the date of his appointment in the AZARNG and payment of an accession bonus. 

2.  The evidence of record confirms that the applicant submitted an application for Federal Recognition as a 2LT in the AZARNG.  His record is void of any written contract and/or agreement that shows he agreed to serve 6 years in a critical UIC or agreed to serve 6 years in an MTOE unit in return for an accession bonus.  Even if there was a contractual agreement, it would have been contingent upon assigning the applicant to a valid vacant position.  The evidence of record shows that at the time of his appointment, he was appointed to an excess platoon leader position pending the departure of the incumbent.  The applicant's chain of command knew or should have known that another officer was occupying the only platoon leader position in that UIC.  The applicant's assignment orders also indicated he was being assigned to an excess position.

3.  The chain of command's retrospective acknowledgement of what they perceive as an error does not change the facts that the applicant was assigned to an excess position and there is no service/bonus agreement.  Additionally, even if he were assigned to a valid position, the chain of command failed to request a validation of the bonus application with the State Incentive Manager.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __XXX_____   ___
               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)                                         AR20090004382



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ABCMR Record of Proceedings (cont)                                         AR20090004382



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