IN THE CASE OF:	   

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110004018 


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:

	a.  He met with his recruiter in December 2008 and spoke with him about becoming an officer in the Minnesota Army National Guard (MNARNG).  The recruiter told him he would be entitled to a $10,000.00 bonus for choosing military occupational specialty (MOS) 09S (Commissioned Officer Candidate) and that it would be paid after completing Officer Candidate School (OCS).

	b.  Prior to signing his enlistment papers on 12 January 2009 at the Military Entrance Processing Station (MEPS), he failed the color vision test.  This disqualified him from enlisting for MOS 09S.  As a result, he elected an enlisted MOS of 42A (Human Resources Specialist), which promised him payment of a $20,000.00 non-prior service (NPS) enlistment bonus and student loan repayment as well as an intention to go to OCS at a later date.

	c.  Shortly after enlistment, his recruiter told him to get a color vision test to obtain a waiver for MOS 09S.  In late January or early February 2009, his doctor wrote a letter regarding his vision and near the end of February 2009 he went to the Armory to take his color vision test.  He received 13 out of 14 and passed the test.  The test was signed by a captain and it was sent forward to clear waiver 

requirements.  He was cleared for MOS 09S and he attended a Recruit Sustainment Program (RSP) (a program to prepare a member for basic combat training (BCT)) at Bloomington, MN, until his BCT began.

	d.  He attended BCT from 5 May to 17 July 2009.  As he began BCT, he was told of a reservation for a spot in an accelerated OCS class beginning on 31 July 2009.  He spoke with his recruiter and other officers and he decided to go into the Field Artillery (FA) branch.  He chose FA because it was the only branch that promised a $10,000.00 bonus.  He was informed he would receive the first half of this bonus upon completing branch qualification training and the other half on the 36-month anniversary.  He was also informed of a $1,000.00 bonus from his State for completing OCS.

	e.  He attended OCS from 31 July 2009 through 26 September 2009.  He was sworn in as a second lieutenant (2LT) on 1 October 2009 and he once again was told he would receive the bonus after completing the FA Basic Officer Leader Course (BOLC).  At no time was he informed that he would not receive the bonus and he never opted out of the bonus.

3.  The applicant provides:

* a request for an exception to policy
* his commander's endorsement
* Annex E to his DD Form 4 (Enlistment/Reenlistment Document) NPS Enlistment Bonus Addendum, ARNG)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the MNARNG for a period of 8 years in the rank/
grade of specialist (SPC)/E-4 on 12 January 2009.  In connection with this enlistment, he and his recruiter signed Annex E to his DD Form 4.  This form shows in:

	a.  Section II (Eligibility), paragraph 6, the entry "I am enlisting for assignment to the 1st Battalion, 125th FA in MOS 42A."

	b.  Section II, paragraph 7, the entry "I am enlisting into a CRITICAL SKILL MOS under the 6x2 or 8x0 enlistment option and will receive a NPS Critical Skill Bonus (50/50)."

	c.  Section III (Payments), paragraph 1, the entry "I will receive a total bonus of $20,000.00 for the enlistment bonus option above, less taxes."

	d.  Section III, paragraph 2, the entry "I will receive my first bonus payment of 50% of the total authorized amount entered above, less taxes, when I complete Initial Active Duty for Training (IADT) and I am awarded the MOS for which I enlisted."

	e.  Section III, paragraph 3, the entry "The second and final payment of 50% will be paid on the 36-month anniversary of my date of enlistment."

	f.  Section V (Termination Without Recoupment), paragraph 5, the entry
"I understand that I will be terminated from bonus eligibility, without recoupment, if I accept a commission as an officer or appointment as a warrant officer and have served more than one year of the enlisted incentive contract term."

2.  On 7 February 2009, he submitted an application for Federal recognition for appointment as an ARNG commissioned officer.

3.  On 3 April 2009, the MNARNG published Orders 9093016 ordering him to active duty on 5 May 2009 for approximately 10 weeks of BCT at Fort Benning, GA, and 9 weeks of MOS 42A training at Fort Jackson, SC.

4.  He attended BCT from 5 May 2009 through 17 July 2009.  However, it does not appear he attended MOS 42A training or that he was awarded an MOS.

5.  While he was attending BCT, a Federal Recognition Board (FRB) was held by the MNARNG to determine if the applicant was qualified to be extended Federal recognition.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

6.  On 30 July 2009, he was promoted to sergeant (SGT)/E-5 and he was awarded MOS 09S.  He attended OCS from 31 July 2009 through 26 September 2009.

7.  He was honorably discharged from the ARNG on 24 September 2009.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 8 months and 13 days of ARNG service and that he did not hold an MOS.

8.  He was appointed as a 2LT in the MNARNG and he executed a DA Form 71 (Oath of Office – Military Personnel) on 25 September 2009.  There is no OAB Addendum executed in connection with this appointment.

9.  He entered active duty for training (ADT) on 5 April 2010.  He attended and successfully completed the FA BOLC from 5 April to 17 August 2010.  He was honorably released from ADT to the control of his ARNG unit on 18 August 2009. He was assigned to the 1st Battalion, 125th Artillery.

10.  On 30 November 2010, he submitted an exception to policy memorandum to the NGB to receive his OAB.  His commander recommended approval of the request.  In his request, the applicant stated that he originally intended to become an officer.  However, upon visiting the MEPS he found out that he had a color vision deficiency and he was ineligible to enlist for 09S.  However, he was able to enlist into limited MOS's for the Army, so he chose MOS 42A.  He later resubmitted his paperwork and he received a waiver that allowed him to reclassify to 09S prior to attending basic training.  He attended basic training in May 2009 and after he spoke with his State, he was told he would be eligible for the bonus if he elected FA as his branch.  He completed OCS on 26 September 2009 and he was sworn in as an officer.  Months later, he was deemed ineligible for the bonus.

11.  During the processing of this case, on 31 January 2011, an advisory opinion was obtained from the Chief, Education, Incentives and Employment Division, NGB.  The advisory official recommended denial of the bonus payment in accordance with the ARNG Selective Reenlistment Incentive Bonus (SRIP) guidance for Fiscal years 2007, 2008, and 2009 (10 August 2007 through
30 September 2007).  The official stated that the applicant enlisted into the MNARNG on 12 January 2009 for a non-critical MOS of 42A.  He executed an NPS bonus addendum for a $20,000.00 NPS Non-Critical Skill Table of Organization and Equipment (TO&E) bonus option.  He also executed the $20,000.00 Loan Repayment Program addendum.  However, he was transferred to MOS 09S in order to complete OCS.  He never became duty-MOS qualified as a 42A and instead he was commissioned as an officer in the MNARNG.  He also did not execute an OAB Addendum for the $10,000.00 incentive.  The NPS enlistment bonus and the SLRP became invalid incentives upon acceptance of his commission.  

12.  National Guard Regulation 600-7 (Selective Reserve Incentive Programs), chapter 2, paragraph 2-5, provides that 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.

13.  NGB Policy Number 07-04, dated January 2007, subject:  ARNG SRIP Guidance for Fiscal Year 2007, states prior-service personnel are entitled to an accession bonus provided they are otherwise qualified.  Soldiers must be duty MOS qualified for the position for which enlisting.

DISCUSSION AND CONCLUSIONS:

1.  There are two bonus issues involved in the applicant's case -- NPS enlistment bonus and OAB.

2.  With respect to the NPS enlistment bonus:

	a.  He enlisted in the MNARNG on 12 January 2009 into a non-critical MOS of 42A for 8 years.  His enlistment contract stipulated that he would receive a $20,000.00 bonus, 50% of which would be paid upon becoming MOS qualified and the remainder at the 36-month anniversary.

	b.  He completed BCT but he did not complete MOS training and he was never awarded an MOS.  As such, he never fulfilled the requirements of his enlistment contract.  Therefore, he should not be entitled to payment of the agreed-upon NPS enlistment bonus, and he does not request payment of this bonus.

3.  With respect to the OAB:

	a.  Shortly after completing BCT, he accepted and he was transferred to an accelerated 09S program in order to become an officer.  He successfully completed OCS, he was sworn in as a 2LT in the MNARNG, and he executed an oath of office on 25 September 2009.  His acceptance of this commission negated his NPS enlistment bonus and any other incentives as an enlisted member.

	b.  He completed FA BOLC and he became qualified in the critical area of concentration of 12A (FA).  He was assigned to the same unit he originally enlisted for.  Although he did not execute an OAB Addendum, had he been properly recruited, counseled, and processed on 12 January 2009, he would have been entitled to the $10,0000.00 OAB.

4.  Although he is ineligible for the enlisted incentives he contracted for, it is clear that he followed the guidance of his recruiter and performed every step in good faith.  The applicant's recruiter had a responsibility to provide the applicant with accurate information regarding his entitlements and obligations.  The recruiter appears to have failed and, in doing so, the applicant was penalized as a result. Therefore, as a matter of equity, he should be entitled to payment of a $10,000.00 OAB.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 OAB Addendum on the date of his appointment as a commissioned officer on 25 September 2009 and is, therefore, fully entitled to payment of the bonus in accordance with the terms of the Addendum; and

   b.  having the Defense Finance and Accounting Service (DFAS) remit payment to the individual concerned, out of ARNG funds, the amount of $10,000.00, the total amount of the bonus, 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)                                         AR20110004018



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ABCMR Record of Proceedings (cont)                                         AR20110004018



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