IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100024782 


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 California Army National Guard (CAARNG).

2.  The applicant states, in effect, following his enlistment, but prior to his subsequent appointment/commissioning in the CAARNG, 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) within three years of his appointment/commissioning date.  He agreed to these terms and enlisted in the CAARNG.

3.  He further states that upon completion of BOLC/OBC 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.  He 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 self-authored statement
* DD Form 1966 (Record of Military Processing - Armed Forces of the United States)
* a CAARNG Form 350-11-R (Recruiting Production Worksheet)
* an extract from NGB Policy Number 10-01
* 2 pages of email correspondence
* an Exception to Policy memorandum from the Army Division G1 of the CAARNG

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CAARNG under the Officer Candidate School (OCS) option on 14 July 2008. 

2.  He completed OCS and was appointed/commissioned as a second lieutenant in the ARNG effective 25 June 2009.

3.  His record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 25 February 2010, showing he successfully completed BOLC on 4 March 2010.

4.  On 29 June 2010, the applicant submitted a memorandum to the NGB requesting a review of his eligibility for an OAB and manual entry of a bonus control number into the Information Management and Reporting Center (iMARC) system.  In this memorandum, he stated:

	a.  He signed a contract that guaranteed him an accession bonus payable in two parts:  $5,000 upon completion of OBC and $5,000 upon completion of 3 years of service.

	b.  While he was attending Basic Combat Training, a bonus was requested under iMARC Control Number O08090005CA on 26 September 2008 and subsequently denied.

	c.  Once he completed OBC, his recruiting/retention noncommissioned officer (RRNCO) again requested the bonus and iMARC Control Number O10040010CA was generated which was subsequently denied.

	d.  He requested updates on the status of his bonus on multiple occasions with both the officer and RRNCO in charge of retention and was told to be patient.

	e.  When the applicant asked for permission to deal with the bonus control personnel directly, the officer told him he wanted to remain personally involved because there were several Soldiers who were having difficulty obtaining their bonuses.

	f.  Ultimately, he was informed his request was "Denied for being retroactive."

	g.  He had fulfilled his contractual obligation and was only trying to obtain what he had earned.

5.  He provides 2 pages of email correspondence showing he was coordinating with his brigade executive officer and the Joint Force Headquarters of the CAARNG in an effort to obtain his OAB.  This correspondence also indicates the primary cause for the problem was the fact his enlistment contract does not contain an officer service agreement bonus addendum signed on the date he graduated from OBC.

6.  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.  

7.  During the processing of this case, an advisory opinion was rendered by the Chief of the Personnel Policy Division of the NGB.  He recommended disapproval of the applicant's request based upon the facts that no bonus addendum was executed on the date of the applicant's accession and the enlistment documents that he signed did not indicate that he would receive a bonus.  The advisory official also noted that in accordance with SRIP guidance for Fiscal Year 2007, 2008, and 2009 "Retroactive entitlement to an incentive offered under this policy is not authorized."  He concluded by indicating the State supported this recommendation.

8.  A copy of the advisory opinion was provided to the applicant.  The applicant provided a response to the advisory opinion, wherein he essentially:

	a.  Reiterated his contentions that not only was he unaware of NGB's policy requiring an OAB addendum to be signed on the specific date of appointment/commissioning, he was not afforded an opportunity to sign one on that date.

	b.  Stated he had successfully completed each eligibility requirement for the OAB.  

	c.  Stated he had a letter from the G1, CAARNG explaining how the mismanagement of his incentive was due to administrative errors out of his control

	d.  Stated he had a CAARNG Form 350-11-R (Recruiting Production Worksheet) rendered at the time of his enlistment which showed his eligibility for the bonus.

9.  On 6 July 2010, the G1, Accession Task Force, Recruiting and Retention of the CAARNG sent a memorandum to the Chief of the Education, Incentives and Employment Division of the NGB requesting an exception to policy for a manually issued bonus control number for the applicant.  The G1, in effect, stated:

	a.  The applicant was appointed on 25 June 2009 and executed an agreement for a $10,000 OAB.  The applicant was eligible for this incentive, however no bonus addendum was signed and no control number was ever correctly requested for this incentive.  These errors were due to an administrative error on the part of the Military Entrance Processing Station (MEPS) guidance counselor, RRNCO, and incentive manager.  As a result, the applicant's contract is invalid without a retroactively approved control number issued by NGB.

	b.  The applicant has successfully completed each requirement for OAB eligibility.  He executed an agreement that is valid with the exception of a control number not being requested prior to the execution of the incentive agreement and no bonus addendum was ever signed.  The reasons for this error and its repeat occurrences within the CAARNG are a result of the previous incentive manager's lack of oversight, lack of administrative correctness, and gross negligence.  This resulted in a severe lack of training being provided to Recruiting and Retention personnel, MEPS employees, command leadership at all levels, and CAARNG Soldiers with regards to the proper practices and procedures for the implementation of the ARNG Selected Reserve Incentive Program within CA.

	c.  The CAARNG accepts full responsibility for this and has made the following changes to prevent future occurrences:

		(1)  The previous incentive manager was removed effective 1 October 2009.

		(2)  The incentives program in CA has been restructured with a new incentive manager and a staff of four additional personnel.

		(3)  Recruiting and Retention personnel at all levels have been given substantial retraining in the area of incentives to correct deficiencies specifically relating to the execution of agreements without approved control numbers prior to the signing of an agreement throughout the Recruiting and Retention force.

		(4)  It is now Recruiting and Retention Command Policy in CA that no applicant will be authorized to enlist for an incentive without a control number approved prior to the date of enlistment.

		(5)  Applicants are not allowed to be projected to the floor at MEPS without a control number approved prior to flooring if they are to enlist for an incentive.

		(6)  Corrective training, additional control measures to include the assignment of a Soldier to do nothing but perform quality checks and approve control number requests, as well as manual validation have all been implemented within the CA Incentives Program effective 1 October 2009, in an effort to correct the systemic issues of CA's incentive program.

	d.  The CAARNG made every effort to identify all contracts that would need retroactive control numbers prior to the 1 March 2010 suspense outlined in Education and Incentives Operational Message (EIOM) 10-007; however, they were unable to meet this suspense in this circumstance as a result of the extremely high operational tempo of the CAARNG and their high mobilization rate.  Additionally, as a State they lacked sufficient notice to identify 100 percent of all contracts in CA prior to the suspense as a result of only having one Unit Training Assembly period scheduled between the publication of EIOM 10-007 and the 1 March 2010 suspense date; which left an exceptionally small margin for error.

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 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.

11.  National Guard Regulation 600-7 (SRIP), 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.

12.  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 [subsequently extended through 31 January 2009 in an NGB memorandum, dated 30 December 2008, Subject:  Continuation of Current Bonus Authorities], 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.

13.  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.

14.  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.

15.  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.

16.  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.

17.  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 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.

3.  The applicant completed BOLC/OBC on 4 March 2010 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 G1, Accession Task Force, Recruiting and Retention of the CAARNG 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 G1 states he does not want the applicant to be penalized for an administrative error.  The G1 recognized this problem affected the applicant and several more officers and stated the CAARNG implemented corrective measures to avoid reoccurrence in the future.

5.  The G1, Accession Task Force, Recruiting and Retention of the CAARNG 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 an 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 from Army National Guard funds to the individual concerned in accordance to his contract, 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)                                         AR20100024782



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ABCMR Record of Proceedings (cont)                                         AR20100024782



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