IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100026851 


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 correction of his military records to show his officer accession bonus (OAB) contract was signed prior to his oaths of office.  He further requests, in effect, a waiver of the requirement to be assigned to a modification table of organization and equipment (MTOE) unit and payment of an OAB.

2.  The applicant states:

	a.  The recruiter was new to his position and did not know that eligibility for the accession bonus required the accession contract to be signed prior to the oaths of office.  He also states that both the recruiter and he believed that he was assigned to an MTOE unit when, in fact, he was not.  His appeal for an exception to receive an OAB was denied.

	b.  He left the private practice of law to serve his country as a Judge Advocate General (JAG) officer.  This decision cost him his civilian job; however, he contends he "would do it again in a heartbeat."

	c.  The error was not any fault of his; but, rather, was an innocent and administrative error by the recruiting office.  He was counting on the bonus to help mitigate the loss of income from his civilian job during training and to pay his property taxes.  He signed the OAB contract about 1 month after swearing in, but was only recently informed of the problem.

3.  The applicant provides copies of his accession contract, his appeal to the National Guard Bureau (NGB), and the denial of the appeal.

CONSIDERATION OF EVIDENCE:

1.  An NGB Form 337 (Oaths of Office) was completed by the applicant and signed on 20 February 2009.

2.  Wisconsin Army National Guard Orders 060-998, dated 4 March 2009, appointed the applicant in the Army National Guard as a first lieutenant, JAG, and assigned him to the 64th Troop Command located in Madison, Wisconsin.

3.  On 19 March 2009, the applicant signed an OAB Addendum.  This addendum states he would be paid an OAB of $10,000.00 in two equal payments provided he completes the officer basic course and is assigned to an MTOE unit.  The addendum was witnessed and contains a bonus control number.

4.  NGB Special Orders Number 72 AR, dated 15 April 2010, extended Federal recognition to the applicant as a first lieutenant, JAG, effective 20 February 2009.  The orders indicate the applicant was still assigned to the 64th Troop Command.

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty for training (ADT) on 7 February 2010, completed the Direct Commission Officer Course and the JAG Officer Basic Course, and was released from ADT on 18 June 2010.  Item 9 (Command to Which Transferred) indicates the 64th Troop Command.

6.  Wisconsin Army National Guard Orders 175-1028, dated 24 June 2010, promoted the applicant to captain/pay grade O-3 with a date of rank and effective date of 24 June 2010.  His unit is shown as the 64th Troop Command.

7.  On 8 September 2010, the Wisconsin Army National Guard Deputy Chief of Staff, Personnel/G-1, requested an exception to policy and the issuance of the OAB on the applicant's behalf.

	a.  The memorandum states the applicant received erroneous guidance causing him to have signed the OAB addendum after he was commissioned.

	b.  The memorandum also states the applicant is in a valid position per the critical area of concentration (AOC) list and the situation occurred through no fault of the applicant.

8.  On 14 October 2010, NGB notified the applicant and The Adjutant General of the State of Wisconsin that the applicant had been promoted to the rank of captain/pay grade O-3 in the Reserve of the Army.  His unit was shown as the 64th Troop Command.

9.  On 19 October 2010, the NGB Education, Incentives, and Employment Division Chief responded to the request for an exception to policy from the Wisconsin Army National Guard.  The request was denied because:

	a.  the OAB addendum was signed after the applicant accepted a commission; and

	b.  the applicant was assigned to a table of distribution and allowances (TDA) unit when appointed as an officer in the Wisconsin Army National Guard.  The OAB control number shown in the OAB Addendum was invalid and the applicant was ineligible to retain the incentive.

10.  Title 37, U.S. code, chapter 5, section 324, provides for an OAB for new officers in critical skills.

	a.  Under regulations prescribed by the Secretary concerned, a person who executes a written agreement to accept a commission or an appointment as an officer of the Armed Forces and to serve on active duty in a designated critical officer skill for the period specified in the agreement may, upon acceptance of the agreement by the Secretary concerned, be paid an OAB in an amount determined by the Secretary concerned.

	b.  The Secretary concerned shall designate the critical officer skills for the purposes of this section.  A skill may be designated as a critical officer skill for an Armed Force under this subsection if, (1) in order to meet requirements of the Armed Force, it is critical for the Armed Force to have a sufficient number of officers who are qualified in that skill; and (2) in order to mitigate a current or projected significant shortage of personnel in the Armed Force who are qualified in that skill, it is critical to access into that Armed Force in sufficient numbers persons who are qualified in that skill or are to be trained in that skill.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his accession contract was signed prior to his oaths of office, the requirement to be assigned to an MTOE unit be waived, and to be paid an accession bonus.

2.  The evidence of record clearly shows the applicant was offered an OAB providing he was assigned to an MTOE critical position.  He signed an addendum to this effect on 19 March 2009, which was about 1 month after his appointment as a commissioned officer.

3.  The governing law provides for an OAB and permits the Secretary concerned to designate those critical officer skills that qualify for this incentive.  In this case, the requirements established that the officer had to be assigned to a valid MTOE position.

4.  The evidence clearly shows the applicant was not assigned to a valid MTOE position.  Furthermore, there is no evidence showing any effort was made to reassign him to a valid MTOE position.

5.  In view of the above, simply correcting the applicant's records to show he signed the OAB addendum prior to his commissioning would not entitle him to receive an OAB.

6.  The intent of the OAB is to assist the Secretary with acquiring critical skills in order to meet requirements of the Armed Force.  In this case, the Secretary has determined that those critical skills are only located in MTOE units.  Granting an exception to this requirement would be counter-productive to the intent.

7.  However, it is also very clear the applicant was promised an OAB and was led to believe he was being assigned to a qualifying unit.  There is no apparent fault on the part of the applicant and, as such, he should not be unduly penalized.

8.  The applicant should be afforded the opportunity to be released from his military service contract.  Accordingly, he should be given a period of 60 days to decide whether to accept his contract without the OAB addendum or to request that the remaining portion of his military service contract be rescinded.

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 he be afforded the opportunity to elect to be released from his military obligation and that such opportunity expire 60 days after receiving this Record of Proceedings.  Should he elect to leave the military, the remaining portion of his service contract should be rescinded.

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 an OAB.



      _____________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)                                         AR20100026851



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ABCMR Record of Proceedings (cont)                                         AR20100026851



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