BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100017525 


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 he be paid an accession bonus in the amount of $10,000.00 in accordance with his enlistment contract.

2.  The applicant states:

* he enlisted in the U.S. Army Reserve (USAR) on 8 September 2006
* the requirements of his contract required him to complete basic combat training, Officer Candidate School, Basic Officer Leadership Course II, and Military Intelligence Basic Officer Leadership Course III (MI BOLC III)
* the Selected Reserve Officer Accession Incentive Program, Accession Bonus Addendum states "I shall receive a bonus of $10000 paid in one lump sum upon my successful completion of Officer Basic Course (OBC)/Warrant Officer Basic Course (WOBC)"
* he completed MI BOLC III in October 2007 and he has not received his bonus nor been given any indication that payment would be forthcoming

3.  Since completing BOLC III the chain of command at his Reserve unit has worked hard to resolve this issue.  They have submitted multiple pay inquiries to the finance office, worked with officials at the Recruiting and Retention office, and inquired with authorities at his higher headquarters.  All inquires have either been unanswered or received an unsatisfactory response.  His battalion commander encouraged him to write to his elected officials for assistance.  In October 2008, he wrote to the South Carolina Senator about this situation.  His office received two responses from the USAR Command (USARC).  The first response references the Selected Reserve Incentive Program (SRIP) List.  The SRIP List is in his contract but at no point was he ever briefed on its existence or any other condition or eligibility requirement necessary for him to receive the bonus.  USARC's response also states his Area of Concentration (AOC) 35D (All Source Intelligence Officer) was not on the SRIP List when he enlisted.

4.  He questions why the bonus clause was put in his contract (to be received upon completion of MI BOLC III) if AOC 35Ds were not eligible.  There was never a question he would be commissioned and trained as an MI officer.  The bonus clause is mentioned in his contract at least four separate times and his future service as an MI officer was referenced in at least 6 different documents.  This leads him to the conclusion that MEPS [Military Entrance Processing Station] either sincerely thought he was entitled to the bonus and erroneously drafted the contract or knowingly misled him in order to secure his enlistment.  USARC's second letter references this error in the drafting of his contract.   

5.  He has received several possible suggestions for remedying this situation: 

	a.  Continue to serve without receiving the bonus.  He has served nearly 
4 years and he intends to complete the remaining 4 years of his obligation, whether or not he receives the bonus.  He was raised to honor agreements and he hopes the Army will respond in kind.  The Army values are not just a catchy mnemonic for him and he expects the Army to honor them as he has. 

	b.  Request discharge due to an "erroneous contract" or breach of contract arising from the Army's refusal to pay his bonus.  This suggestion is quite offensive to him as a Soldier, officer, and taxpayer.  The idea the Army would be willing to release a young, highly motivated, MOS [military occupational specialty]-qualified officer during a time of war, especially given the amount of time and money put into his training is mind boggling.  Is the Army that intent on not admitting mistakes and paying a paltry $10,000.00 to a few Soldiers it may have accidentally promised this money to?  Is this stubborn bureaucratic ineptitude, or is there a realization that the Army contract writing mechanism is so flawed that this type of precedent could force the Army to rectify a great number of contractual mistakes?

	c.  Retrain as a specialty covered by current bonus/incentive programs.  Unfortunately, he is hardly in the position to withdraw from his civilian life for 4-6 months to take up a new specialty far away from his family.  Also, this solution wrongly puts the burden on the Soldier as it is not the Soldier who made the mistake.  Why would the Army rather write-off his past specialty training and pay for new training rather than admit its mistake and pay him the bonus?
	d.  File a lawsuit against the Army.  He has faith in the Army to resolve this mistake and do right by its Soldiers.  He'd much prefer to allow the military to take care of its business than getting involved in the civilian courts.   

6.  He further states there are at least 11 other junior MI officers known to him who are having similar problems in having their bonuses paid. 

7.  The applicant provides:

* Service personnel records
* Enlistment contract
* DD Form 214 (Certificate of Release of Discharge from Active Duty)
* Diploma 

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the USAR on 8 September 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.  His enlistment contract shows he enlisted with the understanding he was eligible for an Officer Accession Bonus ($10,000.00).  Section IV (Obligation) 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).  Section V (Entitlement) 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.

2.  Item 4 of section IV (Service Obligation) of a Reserves Annex to his enlistment contract, dated 8 September 2006, indicates that he would be entitled to an Officer Accession Bonus in the amount of $10,000.00.

3.  He was appointed a second lieutenant in USAR on 26 April 2007.  He completed the MI BOLC on 24 October 2007.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  He stated that in order to be eligible for the Selected Reserve Officer Accession Bonus the applicant must have met the eligibility criteria published in All Army Activities Message 017/2005 and the current USAR SRIP announcement in effect on the date the individual made application for officer appointment/training.  In addition, the individual must sign an agreement to accept a commission in a critically short officer AOC listed in the USAR SRIP announcement.

5.  The opinion stated the SRIP is approved annually at the beginning of the fiscal year by the Assistant Secretary of the Army for Manpower and Reserve Affairs (M&RA).  The Army National Guard and USAR are authorized to make a mid-year adjustment to eligible AOCs in coordination with the Director, Military Personnel Management.  The Army National Guard and USAR then publish their respective SRIP announcements, including any of their own additional policy restrictions for the bonus.  At the inception of the bonus the ASA (M&RA) authorized the Director, Army National Guard and the Chief, Army Reserve (CAR) to be more restrictive in their component.  Under the Headquarters Department of the Army (HQDA) policy a component's aggregate strength for an AOC must be below 90 percent of fill in the aggregate of all grades to be eligible for the bonus.  However, as previously stated the CAR had the prerogative to include or exclude any otherwise eligible AOC on the USAR's SRIP announcement.

6.  In the applicant's case the aggregate strength for AOC 35D appears to have been less than 90 percent of fill in the aggregate on the USAR SRIP announcement in effect at the time of the applicant's enlistment for Officer Candidate School.  This assumption is based upon the fact AOC 35D is listed as eligible for the Selected Reserve Officer Affiliation Bonus but not for the Selected Reserve Officer Accession Bonus.  Both bonuses must meet the same criteria to be listed on the SRIP announcement.

7.  The HQDA policy proponent for the Selected Reserve Officer Accession Bonus previously contacted the USAR SRIP manager for the USARC on multiple occasions to verify the command's position on authorizing payment of the bonus for each of the officers cited in the applicant's request to the Army Board for Correction of Military Records (ABCMR).  The command consistently maintained the position that AOC 35D was intentionally marked as an AOC "not qualified" for the Officer Accession Bonus.  Therefore, the recruiter who offered the bonus to the applicant (and others) did so without authority.  Because the USAR program executes the dollars and promulgates internal USAR policy for all Army Reserve bonuses (within the parameters of HQDA policy), the Army G-1 cannot compel the payment of the bonus to any individual who was not eligible.
8.  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 and that this information was available to all recruiters for Army Reserve members for more than 6 months before the applicant signed a bonus agreement.

9.  A copy of the advisory opinion was provided to the applicant to provide comment or rebuttal.  On 1 March 2011, he responded indicating he had reviewed the advisory opinion and he did not have any further documentation to submit.

10.  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.

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.  He enlisted in the USAR on 8 September 2006 and 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. 

3.  The advisory opinion points out 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 and the recruiter who offered the bonus to the applicant did so without authority.  
4.  Notwithstanding the advisory opinion, the applicant fulfilled the requirements of his enlistment contract and did absolutely nothing wrong.  Since he fulfilled his end of the bargain, it would be equitable to correct his military records and remit payment to him in the amount of $10,000.00.

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 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 ABCMR 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 pay the individual concerned $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.   




      _______ _  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)                                         AR20100017525



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ABCMR Record of Proceedings (cont)                                         AR20100017525



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