IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090010592 


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 paid an accession bonus in the amount of $6,000.00 in accordance with his enlistment contract.

2.  The applicant states, in effect, that upon enlistment in the U.S. Army Reserve (USAR) on 6 July 2005, he entered into a contract which authorized a $6,000.00 Officer Accession Bonus which was to be paid in one lump sum upon successful completion of the officer basic course (OBC).  The applicant also states that this entitlement is clearly written in section IV of the DA Form 5261-X (Selected Reserve Officer Accession Incentive Program - Accession Bonus Addendum) of his enlistment contract.  The applicant adds that he completed his Military Intelligence (MI) OBC on 23 March 2007, thus fulfilling his obligation for receipt of the bonus.  The applicant continues that the Army G-1 has since denied his request for payment, citing that he was not eligible for the bonus at the time of his commissioning.  The applicant contends that this interpretation contradicts what is written in his signed contract with the Army.  He states that there is no indication on the contract that his chosen branch did not qualify for the bonus and that he had no way of knowing his chosen branch did not qualify for the bonus at the time he signed his contract.  The applicant concludes that the accession bonus was a significant motivator in his decision to join the USAR at the time.

3.  The applicant provides the following documents as evidence in support of this application:

	a.  a DA Form 5261-X;

	b.  a DA Form 5435 (Statement of Understanding - the Montgomery GI Bill Selected Reserve);

	c.  electronic mail (email) correspondence exchanged between members of the USAR Command (USARC) G-1, DA G-1, and himself;

	d.  a letter from the Office of the Inspector General (IG), U.S. Army Combined Arms Center and Fort Leavenworth;

	e.  a DA Form 1059 (Service School Academic Evaluation Report);

	f.  a DA Form 1559 (IG Action Request);

	g.  a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States);

	h.  an email message addressed to the applicant from the IG of the MI Readiness Command (MIRC);

	i.  a 10-page Certificate and Acknowledgment - USAR - Service Requirements and Methods of Fulfillment (Reserves Annex) to an enlistment contract; and

	j.  an email message addressed to the applicant from a legal assistance attorney at the Office of the Staff Judge Advocate, Fort Leavenworth.

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant enlisted in the USAR on 6 July 2005 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 a captain (CPT)/pay grade O-3 assigned to Detachment 5 of the 3100th Strategic Intelligence Group located at Fort Leavenworth, KS.

2.  The applicant's record contains (and he also provides) a DA Form 5261-X, dated 6 July 2005, which shows he enlisted for the Selected Reserve Officer Accession Incentive Program with the understanding that he was eligible for a Commissioned Officer Accession Bonus ($6,000.00).  Section IV (Obligation) of the applicant's DA Form 5261-X shows that he was enlisting to fill a specific requirement for military occupational specialty (MOS) 09S (which is a student MOS placeholder for officer candidates) in Company B of the 203d MI Battalion in connection with his agreement to accept an appointment as an officer serving in the Selected Reserve.  Section V (Entitlement) of the DA Form 5261-X 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 $6,000.00 paid in one lump sum upon his successful completion of OBC.

3.  The applicant's record contains (and he also provides) a Reserves Annex to his enlistment contract, dated 6 July 2005.  Item 4 of section IV (Service Obligation) of this form indicates that he would be entitled to an Officer Accession Bonus in the amount of $6,000.00 upon completion of the MI OBC.

4.  The applicant's record contains (and he also provides) a DA Form 1059, dated 23 March 2007, which shows he successfully completed the MI OBC, area of concentration (AOC) 35D (All Source Intelligence Officer), on 23 March 2007.

5.  The applicant provides copies of email correspondence exchanged between members of the USARC G-1, DA G-1, and himself during the period 24 April 2007 through 28 June 2007.  This correspondence shows:

	a.  A major assigned to the USARC G-1 requested that a member of the DA G-1 review the applicant's case and approve an exception to policy for the applicant to receive the Officer Accession Bonus.  The USARC G-1 representative acknowledged that the applicant's contract erroneously indicated that he would be entitled to the bonus by enlisting for MOS 09S and that the applicant's AOC of 35D did not qualify him for receipt of the bonus.  However, she recommended approval of the applicant's request based upon her opinion that the applicant should not be penalized for a mistake made by his recruiter.

	b.  A member of the DA G-1 Officer Career Policy Branch informed the major that he could not support or grant an exception in the applicant's case.  The basis for this disapproval was the fact that the applicant was not eligible for the bonus because he was not commissioned in an AOC listed on the Selected Reserve Incentive Program (SRIP) eligibility roster at the time of his enlistment or the time of his commissioning.  He also stated that recruiting and retention personnel can only offer the Selected Reserve Officer Accession Bonus to applicants who are programmed for commissioning in an AOC listed in the current SRIP.  He continued that MOS 09S is an enlisted Personnel Specialty Reporting Code for commissioned officer candidates and not a critical officer AOC.  The DA G-1 staff member concluded that the recruiting personnel who offered the bonus to the applicant needed additional education on the eligibility criteria in order to ensure this error did not occur again.

6.  The applicant provides a copy of an email message, dated 24 March 2008, that he received from a legal assistance attorney in the Office of the Staff Judge Advocate, Fort Leavenworth.  In this message, the attorney, in effect, informed the applicant that he had reviewed his enlistment contract and was unable to find anything that indicated that the Army should not have paid him an enlistment bonus.  The attorney referred the applicant to the IG and told him to contact him if he needed further assistance.

7.  The applicant provides a DA Form 1559, dated 4 June 2008, which shows he submitted a request to the Office of the IG at Fort Leavenworth in order to obtain its assistance with receiving payment of his $6,000.00 Officer Accession Bonus entitlement.

8.  The applicant provides a copy of a letter, dated 12 June 2008, that he received from the U.S. Army Combined Arms Center and Fort Leavenworth Office of the IG.  In this letter, the Deputy IG informed the applicant that the matter he presented was under the jurisdiction of the USARC IG and that he had referred the applicant's correspondence to that office for appropriate action and a direct reply to him.

9.  The applicant provides a copy of an email message, dated 26 March 2008, that he received from a representative Office of the IG of the MIRC.  In this message, the representative informed the applicant they had determined that he would have to pursue his matter with the Army Board for Correction of Military Records since it had already been considered by both the USARC G-1 and the DA G-1.

10.  During the processing of this case, an advisory opinion was rendered by the Chief of the Officer Division, Office of the Deputy Chief of Staff, DA G-1.  He stated, in effect, that the Selected Reserve Officer Accession Bonus is one of the bonuses managed by the Army under the 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.

11.  The Chief of the Officer Division stated that in order to be eligible for the Officer Accession Bonus the applicant must have met the eligibility criteria published in All Army Activities Message 017/2005, dated 25 January 2005, and the contemporaneous USAR SRIP announcement in effect on the date the individual made application for officer appointment/training; in this case, Fiscal Year 2006 SRIP Policy Guidance for 1 February through 30 September 2006, dated 24 January 2006.  In addition, the individual must sign an agreement to accept a commission in a critically short officer AOC listed in the USAR SRIP announcement.

12.  The Chief of the Officer Division opined that when the applicant signed an agreement for the 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 AOC 35D.  However, the SRIP guidance in effect on the date he enlisted specified that AOC 35D was not eligible for the Officer Accession Bonus.  Therefore, the recruiter who offered the bonus to the applicant did so without authority.

13.  The Chief of the Officer Division acknowledged that the applicant complied with all terms of the contract offered to him by the recruiter, but concluded that he was erroneously offered the bonus.  The DA G-1 recommended disapproval of the applicant's request since 35D was not an authorized critical skill for the Officer Accession Bonus at the time of the applicant's enlistment or at the time he was commissioned.

14.  A copy of the advisory opinion was provided to the applicant on 16 October 2009.  As of 6 January 2010, the applicant had not provided a response.

15.  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.

16.  The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864 (1977), concerning military reenlistment 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 the 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.

17.  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 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.  Discharge is appropriate under this provision only in the following circumstances:

	a.  the Soldier did not knowingly participate in creation of the defective enlistment or reenlistment;

	b.  the Soldier brings the defect to the attention of appropriate authorities within 30 days after the defect is discovered or reasonably should have been discovered by the Soldier;

	c.  the Soldier requests discharge instead of other authorized corrective action; and

	d.  the request otherwise meets such criteria as established by this regulation.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be paid an accession bonus in the amount of $6,000.00 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 6 July 2005, his enlistment contract indicated he would be paid a $6,000.00 Officer Accession Bonus in a lump sum upon successful completion of the MIOBC.  He completed MI OBC on 23 March 2007 and submitted a request for payment of the bonus which was subsequently denied due to the fact that his AOC of 35D was not eligible to receive the bonus.  At that time, the applicant could have requested to be discharged from the USAR under the provisions of Army Regulation 135-178 due to a defective enlistment agreement; however, he chose to remain in the USAR under his current contract.  By waiting so long to raise this issue he, in effect, waived the contractual commitment.

3.  The Army has limited funds to apply to bonuses and they must be applied prudently to maximize the Army's return on its investment by ensuring that only those eligible to receive them do so.

4.  According to the fundamental rules of law, the Army is not liable for the erroneous actions of its officers, noncommissioned officers, agents, or employees, even though committed in the performance of their duties.  Court cases have ruled that reenlistment bonuses (and, by extension, enlistment bonuses) are governed by statute rather than ordinary contract principles.

5.  The evidence shows that AOC 35D was not eligible for the Officer Accession Bonus under contemporaneous SRIP guidance in effect on the date the applicant executed his enlistment agreement.  Therefore, the recruiter who offered the bonus to the applicant did so without authority.  Therefore, it would not be appropriate to grant the requested relief.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the evidence presented was sufficient to warrant the relief requested based upon equity.  The applicant fulfilled his end of the bargain.  That he could have walked away from his contract but did not do so is not a reason to deny the requested relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his enlistment contract to include the sentence, "If officials processing you for enlistment authorized you an accession bonus and it is later discovered that the bonus is not payable for reasons of law or regulation, the Army Board for Correction of Military Records may pay the bonus, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552" and

	b.  having the Defense Finance and Accounting Service remit payment to the individual concerned the amount of $6,000.00, the total amount of the bonus to which he would have been entitled had he been eligible for the bonus, in accordance with Title 10, U.S. Code, section 1552.




      ___________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)                                         AR20090010592



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ABCMR Record of Proceedings (cont)                                         AR20090010592



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