IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110010537 


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 the recoupment of his Officer Accession Bonus (OAB) be stopped.

2.  The applicant states he earned an OAB when he finished flight school and became a qualified aviator.  He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 211th Aviation, Utah Army National Guard (UTARNG).  When he found out that A Company of his battalion was deploying to Afghanistan, he was eager to deploy with the company as he believed this could be his last chance to deploy.  He tried to be mobilized as a commissioned officer but the deploying unit had no room for a commissioned officer.  His only option was to revert to being a warrant officer.  He decided to become a warrant officer in order to deploy and upon return, he would take his commission back.  As a result of this action, his OAB is pending recoupment.  He took a substantial decrease in pay in order to serve his country in combat and despite the financial hardship, he continues to serve.

3.  The applicant provides a memorandum from his battalion commander.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service and having completed Officer Candidate School (OCS), the applicant was appointed as an Aviation second lieutenant (2LT) in the UTARNG and he executed an oath of office on 1 March 2007.  He was assigned to Headquarters and Headquarters Company, 2nd Battalion,
211th Aviation.
2.  In connection with his appointment, he executed a written agreement wherein he agreed to serve in the Selected Reserve in a critical officer skill that is designated for bonus entitlement by the Secretary of the Army.  He agreed to serve for 6 years, the full period of his agreement, and he would be paid an accession bonus in one lump sum upon completion of OBC (Officer Basic Course).  He also acknowledged the following:

If I fail to accept a commission or appointment as an officer, or I do not commence to participate, or I do not satisfactorily complete the service obligation incurred under this agreement for any of the reasons listed below (If I separate from the Selected Reserve for any reason including enlistment or voluntary order to active duty in the active forces, other than by death, injury, illness or other impairment not the result of my own misconduct or an involuntary call-up or mobilization or if I voluntarily move to a non-bonus skill unless the move is required by the Reserve Component), I understand that recoupment or entitlement to a portion of the bonus amount will be calculated.

3.  He entered active duty for training (ADT) on 28 June 2008 and he completed the Aviation Basic Officer Leadership Course (BOLC).  He was promoted to first lieutenant on 15 December 2008 and he was honorably released from ADT on 12 November 2009.

4.  On 23 June 2010, he submitted an application for Federal recognition as a warrant officer in the ARNG.

5.  He was honorably separated from the ARNG on 31 August 2010 and he was transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve). 

6.  On 1 September 2010, a Federal Recognition Board (FRB) was held by the UTARNG to determine if the applicant was qualified to be awarded Federal recognition as a UH-60 Aviation (pilot) warrant officer of the ARNG.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

7.  He was appointed as a warrant officer one (WO1) in the UTARNG and he executed an oath of office on 1 September 2010.

8.  It appears that the Director of Military Department, UTARNG, notified the applicant that his OAB was terminated effective 31 August 2010 because he, in effect, breached his written agreement by voluntarily moving to a non-bonus skill. As a result, it appears he was indebted to the Government for approximately
$4,305.56 of unearned bonus money.  Together with this letter, he was provided a notice of indebtedness with options regarding acknowledgement, payment, and proration.  However, he did not sign or acknowledge this notice.

9.  In the processing of this case, on 15 February 2012, an advisory opinion was obtained from the National Guard Bureau (NGB).  The advisory official recommended partial relief.  The official stated:

	a.  The applicant is a former commissioned officer who relinquished his commission as a 1LT and accepted appointment as a WO1 for purposes of deploying with his unit to Afghanistan.

	b.  Upon commissioning as a 2LT, [Applicant] accepted a $10,000.00 OAB.  By the terms of his OAB, he agreed that he would be subject to recoupment of his bonus, or some portion thereof, if he "voluntarily move[d] to a non-bonus skill unless the move is required by the Reserve component" (Written Agreement OAB Addendum – hereafter "contract" - paragraph 4(e)).   The ARNG Education Division has informed us that the WO specialty into which the applicant was appointed does not meet the requirements for continued receipt of the OAB, and that in any case, Headquarters, Department of the Army G-1 has further notified them that transition from a commissioned officer grade to a warrant officer grade can never be considered normal career progression and therefore cannot justify retention of an OAB after such conversion.

	c.  The applicant’s contract contains at least one provision that could potentially support his request.   In paragraph 2(b) of the contract the officer agrees to complete the period required in the Selected Reserve and in the critical skill for which the bonus was received, "unless excused for the convenience of the government."  Thus, waiver of recoupment would be justified if the Soldier’s conversion from 1LT to WO1 was at the behest of the State and was primarily motivated by the State’s need to fill a vacant WO1 position in a mobilizing unit.  Unfortunately, the preponderance of the evidence indicates that the principal reason for the applicant’s conversion from 1LT to WO1 was his personal desire to deploy, and not any pressing need on the part of the State to fill the vacant WO billet in the deploying unit.  The applicant says as much himself in his petition, stating, "When I found out that our battalion’s Alpha Company was set to deploy to Afghanistan I was eager to join them.  I want [sic] to deploy and fear [sic] this may be my only chance due to the draw down in the Middle East.  I tried to get on the mobilization list as a 1LT but the deploying company had no room for a 1LT.  My only options were to stay back or revert to warrant."

	d.  In support of his claim, the applicant provides a letter, dated 27 September 2010, from the battalion commander, 2nd Battalion, 211th Aviation, stating in part, "[Applicant] was approached and asked to fill a critical need as a UH-60 warrant officer pilot for an upcoming deployment.  [Applicant] did not hesitate for the call to arms.  I did explain that it would require him to revert from an officer to a warrant officer for the deployment."  The above statement carries the implication that the applicant surrendered his commission and accepted a warrant instead at the behest of the State.  However, this contradicts a previous letter from the battalion commander, dated 11 May 2010 which clearly showed the applicant’s conversion to warrant officer was at his own instance, not at the behest of the State and states, "[Applicant] came to my office shortly after it was announced that our Alpha Company was deploying to Afghanistan, seeking to deploy with that company.  At the time, we had enough commissioned officers in the company but a shortage of warrant officers.  I told [Applicant] that he would have to revert to warrant in order to go on the deployment."

	e.  The foregoing clearly establishes that the applicant is not entitled to be relieved of recoupment of the unearned portion of his OAB.  However, he has expressed the intention to seek reappointment as an officer upon completion of this mobilization.  Therefore, it would be in the best interests of justice and of the service to grant him partial relief by temporarily suspending recoupment until 180 days after the completion of the mobilization for which he accepted a reduction (or, if his mobilization is cancelled or curtailed, until 180 days after the effective date of such cancellation or curtailment).  If, by the expiration of this period, [Applicant] has been reappointed as a commissioned officer in his original MOS, then recoupment should be waived altogether and only reinstituted if he subsequently fails to complete that portion of his commissioned officer Selected Reserve (SELRES) service obligation in his original specialty/area of concentration that was unexecuted at the time he converted to warrant officer.  The 180-day period recommended above would provide ample time for the completion of the appointment and Federal Recognition process required for appointment as an officer in the ARNG.

	f.  In support of this recommendation, the NGB official was advised by the ARNG Education Division that a Soldier who failed to complete the SELRES service obligation incurred with an enlistment bonus by transferring to the IRR could avoid recoupment by returning to the SELRES in a qualifying billet and having the unexecuted portion of the original SELRES service obligation added to the subsequent enlistment 

contract.  While the applicant’s case is an OAB and not an enlistment bonus, the reasoning is equally applicable to his situation.

	g.  Although the applicant’s conversion to a warrant officer status was not primarily for the convenience of the State, it certainly was a convenience to the State nonetheless and it did benefit the State insofar as it assisted them in filling an important position in a deploying unit.

	h.  The fact that the applicant converted to warrant officer to satisfy his personal desire to deploy does not in any way detract from the meritorious nature of that impulse or of the action.  He surrendered his commission, not to avoid the dangers and rigors of military service, but rather from an eagerness to share those dangers and rigors with the Soldiers of his unit. This constitutes commendable loyalty and devotion to duty of a kind that should be encouraged wherever possible.

	i.  In conclusion, by granting the partial relief recommended above, the NGB can ensure that the applicant meets the contractual obligations that he incurred when he accepted the OAB, but in a way that encourages, rather than penalizes, the loyalty and devotion to duty that we should seek to foster in all of our junior leaders.

	j.  The State, Federal Recognition Section, Officer Policy and Guard Strength Enterprise support this recommendation.

10.  On 15 February 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

11.  ARNG Selective Reserve Incentive Program Policy Number 07-06, dated
10 August 2007, states in paragraph 14 that if an entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments except for payments of service performed before the termination date.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant accepted an OAB in the amount of $10,000.00 upon his appointment in the UTARNG.  His bonus was contingent upon serving in a critical specialty in the UTARNG.  He was voluntarily discharged from the UTARNG on 31 August 2010 for the purpose of accepting an appointment as a warrant officer in the ARNG.  Therefore, he breached his agreement.

2.  As a result of breaching his agreement, he was no longer entitled to a portion of the bonus for the unfulfilled portion of his agreement (1 September 2010 - 
1 March 2013).  Accordingly, the UTARNG initiated recoupment action against him.

3.  Notwithstanding the NGB’s advisory opinion, the applicant's current service as a warrant officer in the ARNG is a voluntary action and does not satisfy the requirements of his agreement.  He agreed to serve for a period of 6 years in the critical specialty in the UTARNG but did not do so.  Therefore, he should not be entitled to the requested relief.

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)                                         AR20110010537



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ABCMR Record of Proceedings (cont)                                         AR20110010537



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