IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090017756 


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 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 $10,000.00 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 24 October 2007, 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, the 99th Regional Readiness Command Inspector General's Office, and a U.S. Senator, the U.S. Army Recruiting Command (USAREC) 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 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 not a significant motivator in his decision to join the USAR at the time, but he had intended to utilize the bonus to offset several expenses.

4.  The applicant states that in his discussions with various Army officials and others, he received several potential courses of action in resolving this matter which he believes are unacceptable, to include:

	a.  continuing to serve with no bonus,

	b.  requesting an early honorable discharge based upon an erroneous enlistment, or

	c.  retraining in another area of concentration (AOC) which was eligible to receive an accession bonus at the time of his enlistment.

5.  The applicant proposes two additional potential courses of action:

	a.  pay him the bonus and allow him to remain in his current AOC of 35D or

	b.  transfer him to the Army National Guard (ARNG) and have the ARNG pay his bonus since the NG listed 35D as eligible to receive an accession bonus at the time of his enlistment.

6.  The applicant further states that he is now 3 years into his contract and could think of many reasons to continue serving, but poses the question of how can he explain to his spouse why he would want to continue to serve the Army despite their blatant disregard for upholding its obligations.  He concludes that he intends to fulfill the obligations outlined in his contract and, in return, he asks that the Army do the same.

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

	a.  a DA Form 5261-X,

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

	c.  a USAR Command (USARC) G-1, response to a Congressional Inquiry,

	d.  a DA Form 1059 (Service School Academic Evaluation Report),

	e.  an MI OBC graduation certificate,

	f.  a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States),
	g.  a 10-page Certificate and Acknowledgment - USAR- Service Requirements and Methods of Fulfillment (Reserves Annex) to an enlistment contract, and

	j.  a USAREC response to a Congressional Inquiry.

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 the 323rd MI Battalion based at Fort Meade, MD.  The applicant was mobilized and ordered to active duty effective 13 April 2009 and is currently serving in Iraq.

2.  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 A of the 323rd 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.

3.  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.

4.  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.

5.  The applicant's record contains (and he also provides) a DA Form 1059, dated 24 October 2007, which shows he successfully completed the MI OBC and was assigned AOC 35D (All Source Intelligence Officer) on 24 October 2007.  He also provides a copy of the certificate he was issued to commemorate his graduation from this course.

6.  The applicant provides a Headquarters, USARC, Fort McPherson, letter, dated 26 September 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.

7.  The applicant provides a Headquarters, USAREC, Fort Knox, letter, dated 6 January 2009, which was rendered by the Chief of the Congressional and Special Actions Branch in response to an inquiry from a U.S. Senator on behalf of the applicant.  The Chief of the Congressional and Special Actions Branch informed the Senator that the applicant's request to receive the Officer Accession Bonus was disapproved by the approval authority within USARC due to the fact that he was mistakenly offered the bonus within his contract when, in fact, he was not eligible for the Officer Accession Bonus at the time he signed his enlistment contract.  The Chief of the Congressional and Special Actions Branch further informed the Senator that in order to prevent future occurrences, USAREC officials had taken appropriate action by re-emphasizing the proper procedures for awarding enlistment incentives to all U.S. Army applicants and initiated appropriate training where needed.

8.  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 ARNG 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 ARNG 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.

9.  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.

10.  The Chief of the Officer Division opined that when the applicant signed an agreement for the SELRES 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.

11.  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.

12.  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, but took issue with the fact that the Army apologized, but had not offered any solutions.  The applicant proposed several potential solutions to this challenging situation, to include:

	a.  pay him the bonus and allow him to remain in his current AOC of 35D as an exception to policy,

	b.  transfer him to the ARNG and have the ARNG pay his bonus since the ARNG listed 35D as eligible to receive an accession bonus at the time of his enlistment,

	c.  determine if he was eligible for any other bonuses at the time he signed his contract and offer those bonuses now,

	d.  award a below the zone promotion to captain/pay grade O-3, which would help offset some of the pay difference,

	e.  guarantee an active duty tour or Active Guard Reserve position of his choosing,

	f.  retrain him in another AOC which was eligible to receive an accession bonus at the time of his enlistment.

	g.  permit an early honorable discharge based upon an erroneous enlistment, or

	h.  have him continue to serve with no bonus.

13.  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.

14.  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.

15.  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.  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.

16.  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 24 October 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.

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.  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)                                         AR20090017756



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ABCMR Record of Proceedings (cont)                                         AR20090017756



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