IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110009598 


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, as an exception to policy, that:

* the date on her contract for payment of an Officer Accession Bonus (OAB) be changed to the day of her appointment on 5 February 2008 
* she be allowed to retain the OAB incentive in the amount of $10,000 in conjunction with her appointment 
* any recoupment of the $10,000 OAB incentive be waived
* that she receive any remaining OAB payment

2.  She states:

* she was eligible for an OAB and received the first payment
* during a review of the second payment, it was discovered the OAB addenda were not signed on her appointment date
* the National Guard Bureau (NGB) determined she was ineligible to retain the $10,000 OAB incentive and recoupment of the first payment commenced
* she wasn't assisted with bonus paperwork at Fort Rucker, AL
* per an NGB email, this was an issue that came up as an exception to policy in June 2010 
* due to a breakdown between the state and Fort Rucker, a Soldier's bonus contract was done within 10 days of the appointment



3.  She provides a request for an Exception to Policy, OAB memorandum, and a memorandum denying exception to policy from the NGB.  

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted her application, she was serving in the Army National Guard in the rank of Chief Warrant Officer Two (CW2).  

2.  Following a period of enlisted service in the New York Army National Guard (NYARNG), the applicant was appointed as a warrant officer one in the NYARNG, effective 5 February 2008.

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 her bonus addendum, dated 15 February 2008.

4.  On 11 March 2011, the Director, Military Personnel of the NYARNG sent a memorandum to the Chief of the Education, Incentives and Employment Division of the NGB requesting an exception to policy authorization for the applicant and another warrant officer.  It was noted that the applicant was eligible for an OAB, had served her contract as required, and had received the first payment of her OAB. 

5.  On 28 March 2011, the Chief, Education Incentive and Employment Division, provided a memorandum indicating the applicant was not eligible to retain the $10,000 OAB in accordance with the ARNG Selected Reserve Incentive Program guidance for Fiscal Year (FY) 2007, 10 August 2007 - 31 March 2008, Policy Number 07-06.  This policy states in part, "Applicants must sign their addenda on the date that they accept their commission."  Also, according to a legal Opinion Memorandum concerning retroactive bonuses issued by the Judge Advocate General on 4 March 2005 "The Army may not pay a bonus retroactively absent a specific statutory grant of authority."  The Chief indicated the applicant had been paid the initial half of the incentive in the amount of $5,000.  Upon review of all substantiating documentation, it had been determined that the applicant was ineligible to retain the $10,000 OAB incentive.  It was advised that the applicant could submit a claim with this Board to request relief.  

6.  On 26 April 2011, the Director, Military Personnel of the NYARNG sent a memorandum to the Commander, Detachment 1, Troy, NY indicating that the request for an exception to policy to waive recoupment and pay of the remaining entitlement on the applicant's OAB was denied by the NGB, Education, Incentives and Employment Division.  The applicant received the first payment of $5,000 erroneously.  Based on NGB's ruling this payment must be recouped.  
7.  There were seven different policies issued by NGB during the 2005-2007 time period:  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 (Selected Reserve Incentive Programs).

8.  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 state any time limitations on signing of the agreements.  However, NGB policy places the restriction on timing of the ARNG OAB agreements.

9.  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 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."

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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements in regard to her OAB incentive have been carefully considered and determined to have merit.

2.  The applicant was appointed in the NYARNG on 5 February 2008.  At that time, she was eligible for the OAB incentive.  

3.  Through no fault of the applicant, her OAB addendum was not signed until 15 February 2008, which is 10 days following her appointment date.  

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

5.  Evidence shows the applicant fulfilled the requirement of her agreement, did absolutely nothing wrong, and upheld her end of the bargain.  

6.  Therefore, it would equitable to pay her the remaining OAB incentive according to the parameters of her bonus 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 Army National Guard and Department of the Army records of the individual concerned be corrected by:

   a.  showing she executed and signed an OAB Addendum on the date of her appointment on 5 February 2008 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) cancel recoupment of the first payment of the OAB incentive in the amount of $5,000; and 
   
   c.  having DFAS remit payment to the individual concerned, out of ARNG funds, the amount of $10,000, 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)                                         AR20110009598





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ABCMR Record of Proceedings (cont)                                         AR20110009598



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