IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20100010387 


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 payment of an Officer Accession Bonus (OAB) in the amount of $10,000.00 in accordance with the terms of his enlistment in the Minnesota Army National Guard (MNARNG).

2.  The applicant states, in effect, prior to his enlistment and subsequent appointment/commissioning in the MNARNG, he was informed he was eligible for a $10,000.00 Officer Accession Bonus.  The applicant also states he was informed that in order to receive the OAB, he must agree to fulfill a six-year commitment in the ARNG and he must successfully complete the Basic Officer Leadership Course (BOLC)/Officer Basic Course (OBC)/Warrant Officer Basic Course (WOBC) within three years of his appointment/commissioning date.  He agreed to these terms and enlisted in the MNARNG.

3.  The applicant further states that upon completion of BOLC/OBC/WOBC he attempted to collect the OAB and was informed that he was not eligible to receive the bonus because he failed to sign an OAB addendum to his enlistment contract on the precise date of his appointment/commissioning in accordance with ARNG policy.

4.  The applicant contends that this interpretation of the policy contradicts what he was told at the time of his enlistment.  He states he was not afforded an opportunity to sign an OAB addendum on the precise date of his appointment/commissioning and National Guard Bureau (NGB) policy prevents him from signing an addendum retroactively.  The applicant further states that he has met the criteria outlined in the ARNG Selected Reserve (SELRES) Incentive Program (SRIP) to receive an OAB with the exception of signing an OAB addendum on the precise date of his appointment/commissioning.  He attests he was not made aware of this requirement and requests retroactive payment of the bonus regardless of the date on which he signed the addendum.

5.  The applicant provides a DA Form 2823 (Sworn Statement).

CONSIDERATION OF EVIDENCE:

1.  Following a period of service in the U.S. Air Force, the applicant enlisted in the MNARNG on 6 January 2007.

2.  The applicant applied for and was granted a direct appointment as an officer in the Judge Advocate area of concentration based upon his civilian education.   On 22 August 2008 he was appointed/commissioned as a first lieutenant in the ARNG with an effective date of 30 July 2008.

3.  The applicant's record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 4 February 2009, showing he successfully completed BOLC on 4 February 2009.

4.  A search of the applicant's Official Military Personnel File (OMPF) in the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal and he has not provided a copy of his officer service agreement, bonus addendum, or verification of an approved bonus control number.

5.  On 3 August 2009, the Adjutant General (AG) of the MNARNG sent a memorandum to the Chief of the Education, Incentives and Employment Division of the National Guard Bureau (NGB) requesting authorization for retroactive payment of OAB funds to Minnesota officers and warrant officers, through the Army Board for Correction of Military Records, with written support of the Chief of the NGB.  The AG stated, in effect, a significant population of his officer force, who were eligible for the OAB when they were commissioned, now cannot be paid since they did not sign the bonus addendum on the precise date of their appointment/commissioning.  The AG attests this occurred as a result of administrative oversight and was due to no fault of the Soldiers and he does not want his officers penalized for an administrative error.

6.  The AG of the MNARNG also provided the following background information to illuminate the situation:

	a.  The MNARNG currently has a large population of officers who were promised the OAB upon completion of BOLC/OBC/WOBC.  The officers were commissioned between 2005 and 2007.

	b.  There were seven different policies issued by NGB during the 2005-2007 time period:  April 2005; May and June 2006; and January, April, May, and June 2007.  All of these required the eligible officers/warrant officers to sign an OAB addendum on or before the date of appointment/commissioning.  This synchronization of signatures on all the required forms was not entirely clear to all Minnesota staff elements involved in recruiting officer and warrant officer candidates, training them, and eventually executing their appointments/commissions.  This resulted in problems making payment since retroactive payment of incentives is prohibited by National Guard Regulation 
600-7 (Selected Reserve Incentive Programs).

7.  The AG of the MNARNG asserted that as the administrative error is due to no fault of the officers (one quarter of whom were deployed at the time), it is imperative that NGB/MNARNG correct this administrative error and provide immediate payment to these deserving warriors.  He requested swift determination in this case in order to provide expeditious payment of the OAB.  In conclusion, the AG stated the MNARNG had provided additional training to ensure that further misunderstandings of the policies and procedures related to the dating of incentive addenda do not occur in the future.

8.  On 28 August 2009, the Chief of the Education, Incentives and Employment Division of the NGB sent a memorandum to the AG of the MNARNG informing him that the request for an exception to policy to allow the applicant to receive a retroactive OAB could not be approved.  The basis of this decision was guidance within the annual ARNG SRIP policies which preclude officers from applying for the SELRES OAB after appointment.  

9.  The Chief of the Education, Incentives and Employment Division of the NGB continued that the ARNG has placed a requirement in the annual SRIP policies that the officer/warrant officer sign the OAB addendum on or before the date of appointment/commissioning along with receiving a bonus control number.  This time-sensitive requirement to sign the OAB addendum was established due to the sensitive nature of bonus payments, personnel strength and readiness issues, service obligations, and funding authorizations for each fiscal year.

10.  The Chief of the Education, Incentives and Employment Division of the NGB added that an accession bonus is payable only upon acceptance of the agreement by the Secretary of the Military Department concerned.  NGB cannot authorize this request due to this contractual requirement not being met.  In addition, NGB has a provision that retroactive entitlement to an incentive offered under SRIP is not authorized.  He concluded by stating the Military Personnel Office should ensure that all elements responsible for counseling Soldiers on the issue are properly trained, so that the guidance a service member receives is accurate and effective.

11.  On 23 November 2009, the Chief of the Fiscal Law Branch of the NGB rendered a legal review and opinion on the MNARNG request for authorization to pay OAB.  He opined the National Guard is authorized to pay an OAB to the one officer who complied with all of the requirements for the OAB.  He further opined the remaining requests appear to be untimely per NGB policy and recommended the remaining requests for retroactive OAB be denied.  He based his opinion on the following facts:

	a.  Only one officer completed and signed the OAB addendum by written agreement on, or prior to, the appointment/commissioning date.  The one officer completed the written agreement at the appropriate time, but the final administrative processing of the officer's paperwork did not get completed due to circumstances beyond the officer's control.

	b.  The timing and signing of the OAB agreement was limited by NGB policy.  The policy required applicants to sign their bonus addenda on the date they accept their commission and meet the eligibility criteria.  The accession bonus statute (Title 10 U.S. Code, Subsection 308j), Department of Defense Instruction (DoDI) 1205.1, and Army Regulation 135-7 (Incentive Programs) do not state any time limitations on signing of the agreements.  However, NGB policy places the restriction on timing of the ARNG OAB agreements.

12.  During the processing of this case, an advisory opinion was rendered by the Chief of the Personnel Division of the NGB.  He recommended disapproval of the applicant's request based upon National Guard Regulation 600-7 and ARNG SRIP guidance for Fiscal Year 2007 (Policy Number 07-06), dated 10 August 2007.  He also noted the applicant's OMPF did not contain copies of his officer service agreement, bonus addendum or verification of an approved bonus control number.  The advisory official cited:

	a.  in accordance with National Guard Regulation 600-7, Chapter 4, paragraph 4-5 "Affiliation Bonus contracts are not valid without a bonus control number.  Control bonus [Bonus control numbers] will be issued from the State Incentive Management Office and reported to NGB.  The State Incentive Manager will verify the bonus addendum form for control number, correct MSO [Military Service Obligation] computation and a valid unit position."

	b.  in accordance with paragraph 8 of SRIP guidance for Fiscal Year 2007 (Policy Number 07-06), dated 10 August 2007, "Retroactive entitlement to an incentive offered under this policy is not authorized unless a written exception is requested and granted by NGB-ARM [Manpower and Resources Division]."

13.  A copy of the advisory opinion was provided to the applicant in order to give him an opportunity to respond.  The applicant did not provide a response to the advisory opinion.

14.  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.

15.  National Guard Regulation 600-7, chapter 2, paragraph 2-5, provides enlistment bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by state policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

16.  Paragraph 14o of Departments of the Army and the Air Force, NGB, Arlington, Virginia, SRIP Guidance for Fiscal Year 2007 (Policy Number 07-06), dated 10 August 2007, provides in order to be eligible for receipt of either of two OABs, applicants must sign their bonus addenda on the date that they accept their appointment/commission and meet the following eligibility requirements:

	a.  Agree to serve as an officer for a period of not less than 6 years on active drilling status and meet all the required eligibility.

	b.  Agree to serve in a critical skill Area of Concentration as defined by the ARNG.

	c.  Not accept an appointment as an officer or warrant officer for the purpose of qualifying for employment in a Military Technician or AGR position.

	d.  Not receiving and will not receive the following benefits during the period of service for which contracted:  Health Professions Stipend Program, Education Loan Repayment Program, Other Educational Assistance Programs - U.S. Marine Corps Platoon Leaders Class College Tuition Assistance Program, Reserve Officers' Training Corps (ROTC) Financial Assistance Program for Specially Selected Members, ROTC Financial Assistance Program for Specially Selected Members Army Reserve and ARNG, or Senior Health Care Professionals in Critically Short Wartime Specialties.

17.  Paragraph 14p of Departments of the Army and the Air Force, NGB, Arlington, Virginia, SRIP Guidance for Fiscal Year 2007 (Policy Number 07-06), dated 10 August 2007, provides the ARNG offers a $10,000.00 OAB to newly commissioned officers and newly appointed warrant officers who agree to serve six years in a critical Unit Identification Code (UIC) in a valid Area of Concentration (AOC).  The Critical UIC OAB will be paid in one lump-sum payment upon successful completion of OBC or WOBC as applicable.

18.  Paragraph 14p also provides the ARNG offers a $10,000.00 OAB to newly commissioned officers and newly appointed warrant officers who agree to serve six years in an MTOE [Modification Table of Organization and Equipment] unit in a valid AOC.  The MTOE OAB will be paid in two 50 percent installments.  The first 50 percent installment ($5,000.00) will be paid upon successful completion of OBC or WOBC as applicable, and the second and final installment of 50 percent will be processed for payment on the third anniversary of commission or appointment.

19.  Paragraph 14q of Departments of the Army and the Air Force, NGB, Arlington, Virginia, SRIP Guidance for Fiscal Year 2007 (Policy Number 07-06), dated 10 August 2007, clearly shows the OAB and the Officer Affiliation Bonus are two distinct and different bonuses with differing eligibility criteria.

20.  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.

21.  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 and determined to have merit.

2.  The applicant attests he was informed that in return for his agreement to fulfill a six-year commitment in the ARNG and by successfully completing BOLC/OBC/WOBC within three years of his appointment/commissioning date, he would be paid a $10,000.00 OAB in a lump sum upon successful completion of BOLC/OBC/WOBC.

3.  The applicant completed BOLC/OBC/WOBC on 4 February 2009 and submitted a request for payment of the bonus which was subsequently denied due to the fact that he did not sign an OAB addendum on the specific date of his appointment/commissioning.  At that time, the applicant could have requested to be discharged from the ARNG under the provisions of Army Regulation 135-178 due to a defective enlistment agreement; however, he chose to remain in the ARNG and honor his current contract.  

4.  The AG of the MNARNG affirms the applicant's contention and acknowledges this error occurred as a result of administrative oversight on the part of his staff and was due to no fault of the applicant.  The AG states he does not want the applicant to be penalized for an administrative error.  The AG recognized this problem affected the applicant and several more officers and stated the MNARNG implemented corrective measures to avoid reoccurrence in the future.

5.  The AG of the MNARNG requested an exception to policy and authorization for retroactive payment of the OAB to the applicant which was subsequently denied by NGB based upon their policy which requires applicants to sign a bonus addendum on the specific date of their appointment/commissioning.

6.  There is no law or HQDA policy that either requires an applicant to sign a bonus addendum on a specific date in order to be eligible for receipt of the bonus or that precludes Reserve Component officers from applying for a SELRES OAB after appointment/commissioning.  The NGB acknowledged these facts, but chose to adhere to the NGB policy requiring applicants to sign a bonus addendum on the date they accept their appointment/commission.

7.  Evidence shows that the applicant fulfilled the requirements of his enlistment contract, did absolutely nothing wrong, and upheld his end of the bargain.  Therefore, notwithstanding the recommendations of NGB, it would serve the interest of equity and justice to pay him an OAB according to the parameters of his enlistment contract.

BOARD VOTE:

___X____  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  showing he executed and signed an Officer Accession Bonus Addendum on the date of his appointment/commissioning and is, therefore, fully entitled to payment of the bonus in accordance with the terms of his enlistment contract; 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, as a result of this correction.



      _____________X____________
                 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)                                         AR20100010387





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ABCMR Record of Proceedings (cont)                                         AR20100010387



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