IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090018149 


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 $10,000.00 in accordance with his enlistment contract.

2.  The applicant states, in effect, that upon enlistment in the U.S. Army Reserve (USAR) on 31 August 2006, he entered into a contract which authorized a $10,000 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 in February 2008, thus fulfilling his obligation for receipt of the bonus.

3.  The applicant continues that in spite of his numerous attempts to rectify this injustice with the assistance of his chain of command and a U.S. Senator, the U.S. Army Reserve Command (USARC) and the DA G-1 have 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 he was led to believe that he was filling a critical need by becoming a MI officer and 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 further states that the accession bonus was not his sole reason for joining the Army, but he had intended to utilize the bonus to offset several expenses associated with getting married and starting a family.

4.  The applicant states that he is personally aware of 12 additional junior MI officers who are in the same predicament.  The applicant further states that he will reach the end of his contractual obligation in about five years and will have no difficulty thinking of many good reasons to continue serving, but poses the question of how can he explain to his spouse why he would renew his commitment to an organization that would not honor one of the first promises it made to him?  He contends that such a breach of trust is also a major detriment to retention, recruitment, and morale.  The applicant also contends that he is fulfilling the obligations outlined in his contract and in return, he asks that the Army do the same.  He opines that during a time of war, from a policy perspective, the Army should be doing everything within reason to maintain retention and morale while attracting the best people to enlist.  He concludes that from a moral perspective, the Army is duty bound to keep its word to those it would ask to deploy and risk their lives in the service of their flag.

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

	a.  a DA Form 61 (application for Appointment),

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

	c.  a DA Form 5261-X,

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

	e.  a DD Form 1966 (Record of Military Processing - Armed Forces of the United States),

	f.  a training reservation confirmation,

	g.  a USARC Form 27-R (Pay Inquiry),

	h.  an electronic mail (email) message from the USAR Pay Center, Fort McCoy,

	i.  two USARC G-1 responses to inquiries from a U.S. Senator,

	j.  a letter addressed to the applicant from the DA G-1, and

	k.  a self-authored, 4-page statement.

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant enlisted in the USAR on 31 August 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 a first lieutenant/pay grade O-2 assigned to Detachment 26 of the 203rd MI Battalion based at Aberdeen Proving Ground, MD.

2.  The applicant provides a letter, dated 8 July 2006, which shows he had been accepted for assignment as a platoon leader in Company B, 203d MI Battalion, in a position that was coded for officer area of concentration (AOC) 35D.

3.  The applicant provides a DA Form 61, dated 22 August 2006, which shows he selected MI as his branch preference when he applied for appointment.

4.  The applicant's record contains (and he also provides) a DA Form 5261-X, dated 31 August 2006, which shows he enlisted under the parameters of the Selected Reserve Officer Accession Incentive Program with the understanding that he was eligible for an Officer Accession Bonus ($10,000.00).  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 203rd 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 $10,000.00 paid in one lump sum upon his successful completion of OBC.

5.  The applicant's record contains (and he also provides) a Reserves Annex to his enlistment contract, dated 31 August 2006.  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 $10,000.00 upon completion of the MI OBC.

6.  The applicant's record contains (and he also provides) a DD Form 1966, dated 31 August 2006, which essentially shows that he was enlisting to fill a specific requirement for MOS 09S in Company A of the 323rd MI Battalion in connection with his agreement to accept an appointment as an officer serving in the Selected Reserve.

7.  The applicant provides a copy of documentation showing that he was scheduled to attend the Commissioned Officer Candidate Course commencing 13 October 2006, that he was offered an incentive bonus in the amount of $10,000.00, and that he was projected to attain AOC 35D.

8.  The applicant's record contains evidence which shows he successfully completed the MI OBC and was assigned AOC 35D (All Source Intelligence Officer) on 19 February 2008.

9.  The applicant provides a USARC Form 27-R, dated 6 April 2008, which shows he requested payment of the Officer Accession Bonus of $10,000.00 based upon the terms of his enlistment contract and the fact that he had successfully completed the MI OBC.

10.  The applicant provides a copy of an email message sent from a representative of the USAR Pay Center to a representative of the USARC G-1 and ultimately forwarded to the applicant on 19 June 2008.  This correspondence shows the applicant was denied payment of the Officer Accession Bonus due to the fact that AOC 35D was not eligible for the bonus at the time the applicant signed his enlistment agreement.

11.  The applicant provides a Headquarters, USARC, Fort McPherson, letter, dated 15 December 2008, which was rendered by the Deputy Director of the Deputy Chief of Staff G-1 in response to an inquiry from a U.S. Senator on behalf of the applicant.  The Deputy Director informed the Senator that the applicant was not eligible for the Officer Accession Bonus due to the fact that his AOC of 35D was not on the Selected Reserve Incentive Program (SRIP) eligibility roster at the time he signed his enlistment contract.

12.  The applicant provides a Headquarters, USARC, Fort McPherson, letter, dated 27 February 2009, which was rendered by the Deputy Director of the Deputy Chief of Staff G-1 in response to an inquiry from a U.S. Senator on behalf of the applicant.  The Deputy Director informed the Senator that the applicant was not eligible for the Officer Accession Bonus due to the fact that his AOC of 35D was not on the Selected Reserve Incentive Program (SRIP) eligibility roster at the time he signed his enlistment contract, the bonus was offered erroneously and should not have been included in his contract.  The Deputy Director further informed the Senator that if the applicant believed there was a breach in contract, he could elect one of the following:

	a.  remain in his unit as a drilling reserve Soldier without receipt of a bonus,

	b.  request discharge in accordance with regulatory guidance, or

	c.  apply to the Army Board for Correction of Military Records (ABCMR) to pursue any perceived injustices.

13.  The applicant provides a DA G-1 letter, dated 16 March 2009, which was rendered by the Director of Military Personnel Management (DMPM) in response to a letter from the applicant regarding his eligibility for the Officer Accession Bonus.  The DMPM reiterated to the applicant that AOC 35D was not listed as eligible for the bonus at the time of his enlistment.  The DMPM also informed the applicant that the USAR maintains the position that 35D was intentionally marked as a skill "not qualified" for the Officer Accession Bonus.  Therefore, the recruiter who offered him the bonus, as well as the other officers the applicant cited, did so without authority.  The DMPM further informed the applicant that because the USAR programs and executes funding for its bonuses and publishes its own bonus policy within the parameters of DA policy, the DA G-1 cannot compel the payment of the bonus to any individual who was not otherwise eligible.  The DMPM expounded that if it were possible for him to personally rectify this error, he would do so, but conceded that he cannot.  The DMPM concluded by advising the applicant to consider applying to the ABCMR for relief.

14.  During the processing of this case, an advisory opinion was rendered by the Chief of the Officer Division, 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.

15.  The Chief of the Officer Division stated that in order to be eligible for the Selected Reserve Officer Accession Bonus and 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.

16.  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 AOC 35D.  However, the SRIP guidance in effect on the date he enlisted specified that AOC 35D was not eligible for the Selected Reserve Officer Accession Bonus.  Therefore, the recruiter who offered the bonus to the applicant did so without authority.

17.  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 Selected Reserve Officer Accession Bonus at the time of the applicant's enlistment or at the time he was commissioned.

18.  A copy of the advisory opinion was provided to the applicant on 26 October 2009 affording him a 30-day window to provide comment or rebuttal.  On 23 November 2009, the applicant provided a response.  In his response, he agreed that the Army had made a mistake; however, he took issue with the fact that the Army apologized, but had not offered any solutions.  The applicant expressed his dissatisfaction with similar responses he had received from the USARC G-1, the U.S. Army Recruiting Command, and the DMPM.  He also opined that the DA G-1 feels that it is more important to honor language that is written for the benefit of Soldiers and the Army, than to actually honor the Soldier by fulfilling his contract to serve his country.  He emphasized the fact that the bonus was mentioned four times in his enlistment agreement and the fact that he was advised both verbally and in writing that he was eligible to receive the Officer Accession Bonus based upon AOC 35D.  The applicant reiterated his aforementioned expectation for the Army to honor its commitment and appealed to the ABCMR to make it so.  The applicant proposed several potential solutions to this challenging situation for himself and the other affected officers; to include:

	a.  the Army Office of the Chief of Legislative Liaison could work with the Congress to seek legislative relief for all who have been wronged;

	b.  pay them the bonus and allow them to remain in their current AOC of 35D as an exception to policy; or

	c.  determine if he was eligible for any other bonuses at the time he signed his contract and offer those bonuses now, specifically the High-Grad bonus in the amount of $8,000.00.

19.  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 paragraph (2)(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 (2)(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.

20.  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.

21.  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.

22.  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 $10,000.00 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 31 August 2006, his enlistment contract indicated he would be paid a $10,000.00 Selected Reserve Officer Accession Bonus in a lump sum upon successful completion of the MI OBC.  He completed MI OBC on 19 February 2008 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.

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 $10,000.00, 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)                                         AR20090018149



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ABCMR Record of Proceedings (cont)                                         AR20090018149



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