IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100023607 


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 a $10,000.00 Officer Accession Bonus (OAB).

2.  The applicant states he did not receive the OAB.  In his exception to policy request for payment of the OAB, he stated that at the time of his accession into the Minnesota Army National Guard (MNARNG), the chaplain recruiter told him there was only one chaplain position remaining in the MNARNG with the 84th Troop Command.  This billet was a Table of Distribution and Allowances (TDA) billet.  His recruiter contacted the National Guard Bureau (NGB) to determine eligibility for the bonus despite the fact that the vacancy was in a TDA unit.  There were two additional chaplains being accessed at the time.  The State was over its authorized strength for chaplains.  However, the NGB overstrength policy states that as long as all Modified Table of Organization and Equipment (MTOE) and the TDA chaplain billet he was going to fill were at 100-percent strength, the excess chaplain could also receive the OAB if otherwise eligible.  The recruiter received verbal confirmation of her understanding of the overstrength policy regarding the incentive.  Accordingly, he signed an OAB Addendum and executed the oaths of office on 31 March 2008.  He was later told he was ineligible for the bonus because he was assigned to a TDA position.  He feels he met the criteria for this bonus and he believes he is being denied a promised and anticipated entitlement.


3.  The applicant provides:

* memorandum from the Chief, Education, Incentives and Employment Division, NGB
* memorandum from an Education Services Officer, MNARNG
* exception to policy request and chain of command recommendation
* NGB Special Orders Number 198 AR
* NGB Policy Memorandum 05-061, subject: ARNG Revised Overstrength Policy

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he submitted an NGB Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer) on 8 February 2008 for appointment as chaplain in the 84th Troop Command, vice an incumbent chaplain in a position within the MNARNG.  On 21 February 2009, the State Adjutant General (AG) endorsed his request and requested Federal recognition be extended to the applicant in that position.

2.  On 25 March 2008, a Federal Recognition Board was held by the MNARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

3.  The NGB Form 89 (Proceedings of a Federal Recognition Examining Board) indicated he was found qualified in the grade of first lieutenant (1LT) as a chaplain pending selection by the Chaplain Professional Board.

4.  He was appointed as a 1LT in the MNARNG and executed the oaths of office on 31 March 2008.  In connection with his appointment, he signed an OAB Addendum wherein he acknowledged that:

* he met the eligibility criteria for the bonus and agreed to serve an appointment as an officer in the Selected Reserve in a critical officer skill designated for bonus entitlement by the Secretary of the Army
* he agreed to serve in the Selected Reserve for 6 years
* he would be paid a $6000.00 accession bonus in one lump sum upon his successful completion of the Officer Basic Course (OBC)

5.  He was assigned to the 84th Troop Command, Minneapolis, MN.  He was subsequently ordered to active duty on 7 June 2008 and completed the Chaplain Basic Officer Leader Course from 9 June to 5 September 2008.  He was honorably released from active duty on 6 September 2008.

6.  On 1 April 2009, he was reassigned to the 1st Battalion, 94th Cavalry, and he was promoted to captain on 12 April 2010.

7.  On 28 April 2010, having not received the promised bonus, he requested an exception to policy for payment of the OAB.  His immediate commander concurred and stated the applicant had filled a critical shortage in the squadron and in the MNARNG with an understanding that he was eligible for the bonus.

8.  Also on 28 April 2010, the State AG supported the applicant's request for retroactive payment of the OAB.  He stated the applicant was commissioned into a TDA position because the State was otherwise full for chaplains except for a chaplain who was forecasted for retirement.  The applicant was promised a bonus and met the eligibility criteria for it.

9.  On 6 May 2010, the State Education Services Officer also supported the applicant's request for retroactive payment.

10.  On 5 August 2010, the Chief, Education, Incentives and Employment Division, NGB, denied the request for a $10,000.00 OAB.  He stated that in accordance with the Selected Reserve Incentive Program (SRIP) for Fiscal Year 2007 (FY07) (10 August 2007 to 31 March 2008), the policy dictated that a member may not be receiving a commission or appointment with a subsequent assignment to a TDA unit.  The applicant did not meet the requirements of the OAB because he was assigned to a TDA unit which made him ineligible for the incentive.

11.  An advisory opinion was obtained on 13 April 2011 in the processing of this case.  An NGB official recommended partial approval of the bonus payment in the amount of $6,000.00.  The advisory opinion states:

	a.  "The [applicant] became a member of the MNARNG with the understanding that he was eligible for the OAB.  Accordingly, he completed the Chaplain Basic Officer Leadership Course (Phases I, II, and III) on 5 September 2008."

	b.  "An email from the MNARNG recruiter, dated 30 March 2011, states, in part, 'Also note that it appears as a $6,000.00 contract addendum, but that the $10,000.00 OAB was in effect at the time of his commission.  He was eligible for $10,000.00 as a chaplain under overstrength policy and the SRIP policy in affect [sic] at the time of his commissioning and chaplain was on the authorized area of concentration list.'  NGB ARNG SRIP Guidance for 2007, 10 August 2007-31 March 2008 (Policy Number 07-06), states, in part, '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 unit.'"

	c.  "We were unable to obtain a copy of the bonus agreement for $10,000.00. 
However, there is supporting documentation for the $6,000.00 bonus for which we are recommending approval."  The email referenced above also indicates the original contract was submitted to the unit in order for them to request a bonus control number on the date of his commissioning.  There is no evidence that this action was completed.  Additionally, a waiver request was submitted to the Incentives Oversight Branch; a copy of the bonus contract was not included.  This suggests the original contract may have been misplaced."

	d.  "In the email, dated 30 March 2011, the recruiter states, 'In working with [the applicant] prior to his commissioning I called the NGB Chaplain Branch to ask if chaplains were considered as special branch (like the Army Medical Department (AMEDD)) officers referenced in 6a(2) of the attached policy), since they were also allowed to go overstrength up to 125-percent overstrength like AMEDD.  Specifically, I asked if Minnesota was full on chaplains in every other slot, if the one and only TDA chaplain authorization in Troop Command would be eligible a bonus like all other chaplain vacancies, using the logic and reference of the AMEDD example outlined in 6a(2).  The fight is not so much overstrength occupancy (because [the  applicant] owned his own hard slot), but the fact that there is one chaplain billet that is a TDA authorization and that in SRIP incentive verbiage takes them out of authorization of an incentive by that verbiage (no TDA allowed an incentive).  However, special branch officers were being called to deploy as individuals which is counter to the intent and reason that TDA elements weren't authorized incentives (e.g., they were not deploying elements). 
So that was my original question then and was told that placement in a TDA should not impact his ability to get the OAB because Minnesota was full in all other vacancies.'  With this guidance, the recruiter moved forward in processing the necessary paperwork to enlist the Soldier."

	e.  "The recruiter and the subject matter expert, Chaplain Accessions, agree 'that this is an instance wherein the guidance is ambiguous at best.'  Therefore, the Soldier should not be penalized due to a contradiction within the policy in place during the time in question.  The erroneous guidance provided was not due to any fault of the Soldier.   The Soldier signed the agreement based on the information provided for a $6,000.00 bonus.  Based on the information provided and in accordance with the SRIP policy in place at the time, recommend the Soldier receive the bonus that he was eligible for at the time."

	f.  "In adherence to the policy in place at the time, we are recommending approval.  The Chaplain Accessions office supports the recommendation for the board to review, but does not necessarily concur with the request."

	g.  "The State concurs with this recommended course of action."

12.  He was provided with a copy of this advisory opinion, but he did not respond.

13.  National Guard Regulation 600-7 (Selective Reserve Incentive Programs), provides that the State Incentive Manager will verify accession packets as prescribed by State policy for bonus control number, accuracy of enlistment or appointment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

14.  NGB Policy Memorandum 06-076, dated 17 November 2006, states in paragraph 6a(2), all State-wide MTOE positions for the specialty in question must be fully occupied and will remain the fill priority when a vacancy exists.  If a State is 100-percent strength in the critical wartime specialists in both the MTOE and TDA, then the overstrength authorization incentive policy can apply to either the MTOE or TDA positions.  If a State is not 100-percent fill for the specialty in question, then the State is not authorized to offer an incentive bonus to officers in overstrength positions.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed in the MNARNG and occupied a TDA position within the 84th Troop Command.  In connection with this appointment, he executed an OAB Addendum that promised him payment of a $6,000.00 bonus upon completion of OBC.  However, according to the ARNG FY07 SRIP, the applicant did not meet the requirements of the OAB because he was assigned to a TDA unit which made him ineligible for the incentive.

2.  The ARNG offers two OAB options to newly-commissioned officers who agree to serve in ARNG for 6 years.  Either option stipulates that officers sign their bonus addenda on the date they accept their commission and in addition to meeting other requirements, the officers must not be receiving a commission with a subsequent assignment to a TDA unit.  The rationale is that the State ARNG pays the bonus as an incentive to Soldiers who agree to serve in an MTOE unit or a critical unit identification code.

3.  The applicant was appointed with the stipulation he would receive a $6,000.00 bonus.  He signed an OAB Addendum in good faith that promised him a bonus in exchange for his service commitment.  He was assigned where his recruiter and his State assigned him.

4.  It is evident that several errors were committed by the MNARNG in the processing of his appointment.  Regardless of whether he was assigned to a TDA unit or not at the time of his appointment, this was not his fault.  He should not be penalized for errors committed by MNARNG recruiting officials.

5.  The applicant met all of the requirements he agreed to in his appointment.  While he was not promised a $10,000.00 bonus, he should be entitled to receive payment of the $6,000.00 bonus.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected to show he is eligible for payment of a $6,000.00 OAB and be paid this bonus as specified in his OAB Addendum, the bonus to be paid out of ARNG funds.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of a $10,000.00 bonus.



      ____________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)                                         AR20100023607



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ABCMR Record of Proceedings (cont)                                         AR20100023607



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