IN THE CASE OF:
BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100001112
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 the Reserve Affiliation Bonus of $10,000 that was promised in his contract.
2. The applicant states he met with a retention officer at Fort Carson, Colorado in 2008, a month prior to leaving active duty, and she signed him up for a 3-year Reserve contract guaranteeing him a $10,000 affiliation bonus. However,
3 months into his Reserve time he inquired as to why he had not received his bonus and he was told the officer who signed him up for the bonus did not sign him up for an area of concentration (AOC) that was eligible for the bonus. He closes by stating that he is respectfully requesting that his signed contract be honored as he has honored his Reserve commitment thus far despite not receiving his contracted bonus.
3. The applicant provides a copy of his Reserve Affiliation Bonus contract.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned as a Regular Army second lieutenant upon graduation from the United States Military Academy at West Point, New York on 31 May 2003. He completed his training and was transferred to Fort Carson, Colorado as a military intelligence officer and he was assigned to the World Class Athlete Program for his entire period of active duty. He was promoted to the rank of captain on 1 July 2006.
2. On 18 April 2008, the applicant signed an Officer Affiliation Bonus Written Agreement in which he agreed to serve in the United States Army Reserve (USAR) Selected Reserve Incentive Program in AOC 35D (Military Intelligence) for a period of 3 years in return for a $10,000 affiliation bonus. He was assigned to a vacancy in a USAR unit in Camp Parks, California.
3. On 31 May 2008, he was honorably discharged due to miscellaneous/general reasons. He had served 5 years of total active service.
4. On 1 June 2008, he accepted an appointment as a USAR officer in the rank of captain. The officer administering the oath was the contracting officer for his Officer Affiliation Bonus.
5. In the processing of this case a staff advisory opinion was requested from the Office of the Deputy Chief of Staff, G-1 which opines that the AOC (35D) for which the applicant contracted was not on the list of eligible specialties (critical skills) and that the contracting (retention) officer who offered the bonus to the applicant did so without authority. Officials at that office further opined that while the applicant had complied with all terms of the contract offered to him he was erroneously offered the bonus and his request should be disapproved. The advisory opinion was provided to the applicant for comment; however, to date, no response has been received by the staff of the Board.
6. 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.
7. 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.
8. 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 contract because he has complied with his part of the contract was carefully considered.
2. It is recognized that 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. It is also recognized that 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, appointment bonuses) are governed by statute rather than ordinary contract principles.
3. However, the facts of the case show the applicant fulfilled his end of the bargain and continues to serve in the USAR. Therefore, as a matter of equity, relief should be granted in this case by:
a. amending his Affiliation Bonus Written Agreement to include the sentence, "If officials processing you for appointment 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. instructing the Defense Finance and Accounting Service to remit payment to the individual concerned in 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X___ ____X __ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that in this case payment of the accession bonus would set a bad precedent, is not a legal requirement, and should be denied for the reasons discussed below.
2. The retention officer offered the bonus without the authority to do so. The applicant, an experienced officer, knew within three months (probably three weekends of drills) that the bonus was not authorized. At that time he could have chosen to leave the Selected Reserve and go into the Individual Ready Reserve instead. He has not suffered grievously as a result of the retention officer's error.
3. Therefore, the Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice and 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) AR20100001112
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