IN THE CASE OF:	  

		BOARD DATE:	    1 November 2011

		DOCKET NUMBER:  AR20100028987 


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, in effect, that his Officer Accession Bonus (OAB) contract be changed to show the contract was dated one day before he was commissioned thereby allowing him to receive an OAB in the amount of $6,000 in accordance with the terms of his accession in the Wisconsin Army National Guard (WIARNG).

2.  The applicant states, in effect, he was informed:

* he was eligible for an OAB if he agreed to fulfill a 6-year commitment in the ARNG and successfully complete the Officer Basic Course (OBC)
* he agreed to the terms and completed the necessary paperwork in January 2006 thereby making him eligible for a $6,000 bonus
* he inquired about the bonus in June 2010 and was informed he was not eligible for the bonus because he signed the contract after his commissioning date and completion of OBC
* the ARNG directed recoupment of the OAB which will negatively impact his finances
* he believes this is an injustice because he did nothing wrong and acted in accordance with his contract
* Soldiers in charge of managing the accessions bonus program were insufficiently trained and made simple mistakes
* the ARNG was in error when it applied National Guard Regulation 600-7 (Selective Reserve Incentive Programs), paragraph 1-6, to justify that his bonus was unauthorized
* the paragraph cited prevents "retroactive entitlement…based on the revised or amended policy"; OAB's are not a part of the cited regulation
* it is an injustice for the bonus to be recouped when he has already complied with his contract in good faith more than 5 of the 6 years required and he is still serving
* it is an error for the ARNG to use an unrelated inquiry as justification for an audit of the execution of his contract
* it is an error and unjust for the ARNG to treat his situation like an isolated mistake when the same procedures were applied to dozens of other WIARNG officers 
* if his contract must be negated, then it should be treated as though he breached a contract that was correctly applied 
* he acted in accordance with  the OAB contract and relied on it in good faith
* he should only be subjected to recoupment for the time he has not served which is 6 months at this point

3.  The applicant provides:

* self-authored statements
* W1-G1-EDU Memoranda, dated 22 June and 21 September 2010
* DA Form 71 (Oath of Office - Military Personnel)
* OAB Addendum
* NGB-ARM Policy Number 06-02 abstract
* Title 37, U.S. Code, Section 308j abstract
* congressional correspondence
* ARNG-SE Memorandum, dated 5 August 2010

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Following a period of enlisted service in the ARNG, the applicant completed OBC and was appointed/commissioned a second lieutenant in the ARNG effective 20 May 2005.

3.  A search of the applicant's Official Military Personnel File (OMPF) in the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of his bonus addendum, dated 12 January 2006.

4.  On 22 June 2010, the Incentive Manager of the Wisconsin National Guard sent a memorandum to the Chief of the Education, Incentives and Employment Division of the National Guard Bureau (NGB) requesting an exception to policy authorization for the applicant.  It was noted that the applicant signed his Written Agreement on 12 January 2006 based on practices in the past and his 6-year service obligation started on the date he signed the Written Agreement.

5.  The applicant acknowledged in his written agreement that he understood the amount to be recouped or reimbursed shall be computed as follows:

   a.  "The number of months I have served satisfactorily during the term for which my bonus has been paid shall be multiplied by the monthly rate authorized by the particular bonus (calculated by dividing the total bonus amount by the number of months of service the member has agreed to serve)."

   b.  "That amount shall be subtracted from the total amount of bonus paid to date (initial and any subsequent payments)."

6.  On 5 August 2010, the Chief, Education Incentives and Employment Division, provided a memorandum indicating the applicant was not eligible to retain the $6,000 OAB in accordance with National Guard Regulation 600-7, paragraph 
1-6, which states, "Retroactive entitlement or reinstatement based on the revised or amended policy contained in this regulation is not authorized."  Further, the applicant's bonus addendum was not executed until after the date of commission and completion of OBC; therefore, he is ineligible to retain the incentive for which he contracted. 

7.  On 21 September 2010, the Incentive Manager of the Wisconsin National Guard sent a memorandum to the Chief, Guard Strength Education (ARNG-GSE) requesting relief for the applicant and indicating administrative mistakes were made through no fault of the applicant.

8.  On 10 October 2010, the applicant was release from active duty and transferred to a WIARNG unit.  

9.  His NGB Form 22 (Department of the Army and Air Force NGB Report of Separation and Record of Service) shows he resigned his commission effective 10 September 2011.

10.  There were seven different policies issued by the NGB between 2005 and 2007:  February 2005; May and June 2006; and January, April, May, and June 2007.  All of these required the eligible officers/warrant officers to sign an OAB addendum on or before the date of appointment/commissioning.  This synchronization of signatures on all the required forms was not entirely clear to staff elements involved in recruiting officer and warrant officer candidates, training them, and eventually executing their appointments/commissions.  This resulted in problems making payment since retroactive payment of incentives is prohibited by National Guard Regulation 600-7.

11.  The timing and signing of the OAB agreement was limited by NGB policy.  The policy required applicants to sign their bonus addenda on the date they accept their commission and meet the eligibility criteria.  The accession bonus statute (Title 10 U.S. Code, Subsection 308j), Department of Defense Instruction (DoDI) 1205.1, and Army Regulation 135-7 (Incentive Programs) do not place any time limitations on signing of the agreements.  However, NGB policy places the restriction on timing of the ARNG OAB agreements.

12.  In accordance with National Guard Regulation 600-7, chapter 4, paragraph
4-5, "Affiliation Bonus contracts are not valid without a bonus control number.  Control bonus [Bonus control numbers] will be issued from the State Incentive Management Office and reported to the NGB.  The State Incentive Manager will verify the bonus addendum form for control number, correct MSO [Military Service Obligation] computation and a valid unit position."

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be paid an OAB in the amount of $6,000 per his enlistment contract was carefully considered and determined to have merit.

2.  The applicant attests he was informed in return for fulfillment of a 6-year commitment in the ARNG and completion of OBC within 36 months of the date of appointment he would receive a $6,000 OAB in a lump sum payment.  He remained in the ARNG until 10 September 2011, for a period of 6 years and            3 months.

3.  The applicant completed OBC in January 2006 and submitted a request for payment of the OAB which he was subsequently denied due to the fact that he did not have an OAB addendum signed on the date of appointment/ commissioning.  

4.  Although an exception to policy was requested, the OAB for the applicant was subsequently denied by the NGB based on their policy which requires that individuals sign a bonus addendum on the specific date of their appointment/
commissioning.

5.  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.

6.  The available evidence shows the applicant fulfilled the requirement of his agreement, did absolutely nothing wrong, and upheld his end of the bargain.  Therefore, it would serve the interest of equity and justice to pay him the OAB according to the parameters of his OAB agreement.

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 ARNG and Department of the Army records of the individual concerned be corrected by:

   a.  showing he executed and signed an OAB Addendum on the date of his appointment/commissioning, therefore, he is fully entitled to payment of the bonus in accordance with the terms of the addendum; and

   b.  having the Defense Finance and Accounting Service remit payment to the individual concerned in the amount of $6,000, the total amount of the OAB, out of ARNG funds, 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)                                         AR20100028987



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ABCMR Record of Proceedings (cont)                                         AR20100028987



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