IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100011129 


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 in the amount of $10,000.

2.  The applicant states, in effect, he was misled to believe that he would receive an officer accession bonus in the amount of $10,000 upon graduating from the Signal Officer Basic Course (OBC).  He contends the Army entered into a legal contract with him and will not pay him because of an error.

3.  The applicant provides the following:

* A letter from Headquarters, U.S. Army Reserve Command (USARC), G-1, dated 29 January 2010
* A copy of a Correction – Written Agreement Officer Accession Bonus Acknowledgement
* A Certificate for completion of the Basic Officer Leader Course (BOLC), dated 21 May 2009
* A Fort Sill (FS) Form 1059 (BOLC II Evaluation Report), dated 20 May 2009
* A Certificate of Signal Regimental Affiliation
* A DA Form 1059 (Service School Academic Evaluation Report), dated 
26 August 2009
* A certificate for completion of the Signal (SC) BOLC, dated 26 August 2009
* A DA Form 4856 (Developmental Counseling Form), dated 27 December 2007
* His DD Form 214 (Certificate of Release or Discharge for Active Duty) ending 26 August 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that after having prior enlisted service in the U.S. Air Force Reserve and the U.S. Army Reserve (USAR).  On 15 January 2008, the applicant completed a Written Agreement Officer Accession Bonus Acknowledgment in connection with his appointment as an officer whereby he acknowledged he was entitled to a bonus as a member of the USAR Selected Reserve and agreed to serve in the Selected Reserve for 6 years at which time he would receive a bonus in the amount of $10,000 in one lump sum payment upon successful completion of OBC.  If also acknowledged he understood if he failed to accept a commission or appointment as an officer, or did not satisfactorily complete the service obligation incurred under the agreement, recoupment or entitlement to a portion of the bonus amount would be calculated by dividing the total bonus amount by the number of months of service that was agreed to serve.  This document was authenticated with the signature of a service representative, the applicant's signature and a witness signature on 
15 January 2008.  

2.  The applicant was appointed a Reserve Commissioned Officer of the U.S. Army in the rank of second lieutenant, on 15 August 2008.  On 5 April 2009, the applicant was ordered to active duty for training and on 26 August 2009, the applicant graduated from the SC OBC.  The applicant is currently serving in an active Army Reserve unit in Baltimore, Maryland.  

3.  The applicant provides a copy of a FS Form 1059, dated 20 May 2009, showing he successfully completed BOLC.

4.  The applicant also provides a copy of documentation showing he completed the SC OBC and was assigned area of concentration (AOC) 25A (SC Officer) on 26 August 2009.

5.  Along with his application, the applicant provided a copy of a response letter from Headquarters, USARC, dated 29 January 2010.  The letter was rendered by the Deputy Chief of Staff G-1 in response to an inquiry from a Member of Congress on behalf of the applicant.  The Deputy Chief of Staff informed the Congressman that the applicant was not eligible for the Officer Accession Bonus due to the fact that his AOC of 25A was not on the Selected Reserve Incentive Program (SRIP) eligibility roster at the time he signed his agreement.  The Deputy Director further informed the Senator that if the applicant believed there was a breach of his 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.

6.  Title 37, U.S. Code, section 308 j (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 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard and USAR incentive programs.  The SRIP incentive is offered to newly accessed officers who met eligibility criteria and access into an officer specialty listed in the Selected Reserve Incentive Program, for the period in which commissioned.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be paid an officer accession bonus in the amount of $10,000.00 per his agreement was carefully considered and determined to have merit.

2.  The basis of the applicant's contention is that he entered into a legal contract with the U.S. Army but now the Army refuses to pay based upon an error on their part.  He was informed that in return for his agreement to fulfill a 6-year commitment in the USAR, and by successfully completing OBC within 36 months of his appointment/commissioning date he would be paid a $10,000.00 officer accession bonus in a lump sum.

3.  The applicant completed SC OBC on 26 August 2009.  It is safe to presume when he submitted a request for payment of the bonus, he was subsequently denied due to the fact that AOC 25B was not on the SRIP eligibility roster at the time he signed his enlistment contract.  

4.  Evidence shows the applicant entered the agreement in good faith, fulfilled the requirements of the written agreement, and upheld his end of the bargain.  Therefore, notwithstanding the findings of the USARC, G-1, it would serve the interest of equity and justice to pay him an officer accession bonus in the amount of $10,000 according to the parameters of the written agreement signed on 
15 January 2008.

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 Department of the Army records of the individual concerned be corrected by:

   a.  amending his agreement to show he executed and signed an officer accession bonus addendum and also amending his agreement to include the sentence, "If officials processing you for appointment authorized you an accession bonus and it is later discovered 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.

2.  If the individual concerned fails to complete the period of service obligated as a result of his amended Affiliation Bonus Written Agreement either voluntarily or because of misconduct, his bonus would be required to be recouped on a pro-rated basis.




      _______ _  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)                                         AR20100011129



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ABCMR Record of Proceedings (cont)                                         AR20100011129



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