IN THE CASE OF:	  

		BOARD DATE:  5 April 2012

		DOCKET NUMBER:  AR20110006853 


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 cancellation of his debt for the first portion of his officer accession bonus (OAB) and payment of the second installment of his OAB.

2.  The applicant states that prior to leaving the State of Connecticut (CT) Army National Guard (CTARNG) for Warrant Officer Candidate School he received his written agreement OAB acknowledgement.  He goes on to state that he was not properly informed that the accession paperwork was required to be signed on the date of commissioning by the incentive manager in the State of CT.  He was appointed to warrant officer one (WO1) on 7 December 2007.  He flew home and had his paperwork signed on 10 December 2007 (Monday) and the incentive manager put an effective date of 7 December 2007 on the cover page.  

3.  He further states that he graduated the warrant officer basic course (WOBC) on 17 September 2009 and upon returning home he stopped into the incentive manager’s office and was confirmed that he was on track to receive his bonus.  He also states that he received his first payment in December 2010 and was told he would receive his second payment in December 2011.  However, when he did not receive the second half of his bonus he inquired and was told that it was denied because the original paperwork was signed on the wrong date.  He continues by stating that his request for an exception to policy was denied and the first half of his bonus is being recouped. 


4.  The applicant provides copies of his OAB written agreement, appointment orders, appointment memorandum, two diplomas for completion of training, and a Federal recognition order.

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.  The applicant enlisted in the CTARNG on 12 October 2005.  He completed his training as a CH-47 (Chinook) helicopter repairman and served until he was honorably discharged on 6 December 2007 to accept an appointment as a warrant officer.

3.  On Friday, 7 December 2007, he was appointed as a WO1 in the CTARNG at Fort Rucker, Alabama.  

4.  On Monday, 10 December 2007, he signed an OAB written agreement in which he agreed that he was to be paid an OAB in the amount of $10,000 upon completion of WOBC.  The agreement indicated that it was effective 7 December 2007.

5.  On 17 September 2009, the applicant completed WOBC and he was awarded military occupational specialty (MOS) 153D0 (UH-60 pilot), which is a Blackhawk helicopter.  His evaluation reports show he has been serving as a UH-60 pilot in the CTARNG.

6.  A review of the Fiscal year 2007 Selected Reserve Incentive Program (SRIP) List for the Army Reserve shows that no OAB was authorized for warrant officers in MOS 153D (Blackhawk Pilot).  However, it was authorized for warrant officers serving in MOS 154 C (Chinook Pilot).  


7.  On 9 February 2011, the National Guard Bureau (NGB) denied a request from the CTARNG for an exception to policy to allow the applicant to retain his OAB.  The NGB denied the request because the applicant did not sign his agreement after he accepted his commission and he agreed to serve in a critical skill; however, he was accessed in a 01A at the time of commissioning.  Accordingly, he was not entitled to the OAB.

8.  In the processing of this case a staff advisory opinion was obtained from the NGB which opines, in effect, that the applicant’s debt owed to the US Government for the first installment of his OAB should be cancelled; however, he should not receive the remainder of the OAB.

9.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he disagreed with the NGB opinion regarding the payment of his second installment of the OAB because he was never informed he had to sign the agreement on the day of commissioning and he had no control over the MOS or position he would be placed in because it is performed by higher headquarters.

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 paragraph (2)(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 (2)(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.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It provides, in pertinent part, that the individual concerned must show that the collection of the debt will cause an injustice or hardship.




DISCUSSION AND CONCLUSIONS:

1.  There is no doubt that the applicant entered into an agreement for payment of an OAB; however, the agreement was not a valid agreement because his AOC (MOS) was not authorized payment of an OAB.

2.  Notwithstanding that he signed his agreement after he was commissioned, the very fact that his MOS is not on the list of critical specialties authorized an OAB indicates that the applicant should never have received the initial payment of the OAB. 

3.  While it is indeed unfortunate that he was paid his initial installment, he was not authorized to receive that payment.  Therefore, since there was no authorization to enter the applicant into a contract for which he was not authorized, it would not be appropriate to grant the applicant a benefit not afforded to others in similar circumstances.

4.  Furthermore, it would not be appropriate to allow him to keep the first installment of the bonus because he would be receiving a benefit not afforded to others and he has failed to show through the evidence submitted with his application and the evidence of record any explanation as to why he should not pay back the monies he was not entitled to receive in the first place. 

5.  While the actions of the Department in this matter are not condoned by the Board, the Department is entitled to receive any overpayments it makes to Soldiers in error just as a Soldier is entitled to payment when under-payments are made in error.

6.  Accordingly, there appears to be no basis for granting the applicant’s request for payment of his OAB or cancellation of the debt that resulted from a flawed contract.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X ___  ___X____  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20110006853



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ABCMR Record of Proceedings (cont)                                         AR20110006853



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