IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100013044 


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 connection with his oath of office in the Connecticut Army National Guard (CTARNG). 

2.  The applicant states, in effect, that he was told that he was to receive an Army OAB upon completion of the Basic Officer Leaders Course (BOLC) and he was eligible at the time, but he was denied the bonus because his accession packet did not contain the proper bonus addendum.  He goes on to state that he was informed that the addendum was supposed to be provided with his Oath of Office and other materials when he accepted his commission and he did all of the paperwork he was provided under the direction and trust of the CTARNG Officer Strength Manager.  However, he was either not provided the proper document or it was not processed by the personnel office, which has been admitted to by the CTARNG. 

3.  The applicant provides a list of supporting documents as indicated in item 9 of his application.

CONSIDERATION OF EVIDENCE:

1.  On 2 August 2005 the applicant enlisted in the CTARNG for a period of 8 years under the Simultaneous Membership Program (SMP).


2.  On 24 July 2007, he was appointed as a second lieutenant in the USAR and the CTARNG.  He was detailed as an infantry officer in the CTARNG.

3.  On 21 July 2008 he accepted an appointment in the Arizona Army National Guard (AZARNG) and he branch transferred to the Military Police (MP) Corps immediately after completing the MP Officer Basic Course (OBC) at Fort Leonard wood, MO on 16 July 2009.

4.  On 29 October 2008 he accepted a transfer to the Rhode Island Army National Guard (RIARNG) as an MP second lieutenant.

5.  On 28 September 2009, a memorandum was dispatched from the Office of the Inspector General of the RIARNG to the National Guard Bureau (NGB) in attempt to ascertain why the applicant was not being paid his OAB.

6.  On 1 October 2009, a request for an exception to policy to award the applicant his bonus was dispatched from the RIARNG J1 to the NGB.

7.  On 16 October 2009, the NGB responded to the request to the effect that the applicant’s bonus could not be approved because he had not signed the addendum on or before his commissioning date.  Officials at the RIARNG were advised that all elements responsible for counseling Soldiers on incentives should be properly trained in order to preclude negatively affecting Soldiers in the future.

8.  On 9 February 2010, a memorandum was dispatched to the Deputy IG at Guantanamo Bay, Cuba by the CTARNG State Officer Strength Manager explaining that the applicant was eligible for the bonus and that no explanation could be made as to why there was no addendum in his packet.

9.  On 16 February 2010, a memorandum for record was prepared by the Command IG at Guantanamo Bay indicating that the applicant was qualified for the OAB; however, through no fault of his own, he was either not afforded the opportunity to sign the addendum or it was not properly processed.  The memorandum concluded that the applicant was deserving of having his records corrected to authorize the bonus.

10.  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.  However, it is 


noted that both Infantry and Military Police are listed on the Critical Officer Area of Concentration (AOC) List during the period in question.

11.  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.

12.  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.

13.  Departments of the Army and the Air Force, NGB, Arlington, VA, Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007 (Policy Number 07-06), paragraph 14, dated 10 August 2007, provides in order to be eligible for receipt of either of two OABs, applicants must sign their bonus addendum 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 AOC 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 Active Guard Reserve (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.

14.  Departments of the Army and the Air Force, NGB, Arlington, VA, SRIP Guidance for Fiscal Year 2007 (Policy Number 07-06), paragraph 14p, 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 6 years in a critical Unit Identification Code (UIC) in a valid AOC.  The Critical UIC OAB will be paid in one lump-sum payment upon successful completion of OBC or WOBC as applicable.

15.  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 6 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% installment ($5,000.00) will be paid upon successful completion of OBC or WOBC as applicable, and the second and final 50% installment will be processed for payment on the third anniversary of commission or appointment.

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

17.  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.

18.  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 because he was told that he would be eligible to receive his bonus in a critical specialty after he completed BOLC appears to have merit.

2.  The applicant attests he was informed that in return for his agreement to fulfill a 6-year commitment in the ARNG and by successfully completing BOLC 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.

3.  The applicant was commissioned on 24 July 2007 and completed his OBC on 16 July 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 he 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 contract, which is evidence by his deployment to Cuba. 

4.  Officials of both the CTARNG and the RIARNG affirm the applicant’s contention and acknowledge this error occurred as a result of an administrative oversight on the part of the staff of the CTARNG and was due to no fault of the applicant.


5.  The RIARNG 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 Selected Reserve 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 to qualify for payment of the bonus, 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.  It simply does not make sense to hold the applicant at fault for not completing an addendum as a newly commissioned second lieutenant when more experienced officers who were responsible for officer accessions failed to ensure that one was completed.

8.  In short, the applicant has to date been penalized for relying on those officials responsible for recruiting officers.  However, it is not appropriate for the applicant to suffer for the mistakes of more senior officials that were responsible for ensuring that all paperwork was done in a proper manner and it does not send the proper kind of message to a future leader or demonstrate that the Army takes care of its own and is responsible for its actions.

9.  Accordingly, in the interest of justice and equity, the applicant should be paid his OAB. 

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 (DFAS) remit payment to the individual concerned the total amount of the $10,000.00 bonus, less applicable deductions, 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)                                         AR20100013044



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ABCMR Record of Proceedings (cont)                                         AR20100013044



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