IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110013547 


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, the remaining payment of an Officer Accession Bonus (OAB) in the amount of $5,000.00 in accordance with the terms of his enlistment in the Minnesota Army National Guard (MNARNG).

2.  He states when he enlisted in the MNARNG he was offered a $10,000.00 OAB contingent upon his commissioning to the rank of second lieutenant (2LT).  He had an approved bonus control number (BCN) and was paid $5,000.00 of the OAB. 

3.  He adds upon his graduation from the Military Police Officer Basic Course (OBC) he was denied the second half of his bonus because he signed the Written Agreement – OAB Addendum one year after he took his oath of office.  He has also been informed he must pay back the $5,000.00 he received under BCN 008030003MN.

4.  He provides:

* A copy of his Written Agreement OAB Addendum
* Two Sworn Statements
* A request for exception to policy



CONSIDERATION OF EVIDENCE:

1.  He enlisted in the MNARNG on 28 May 2004.  

2.  On 25 March 2007, he signed an Oath of Office as a 2LT in the MNARNG and on 18 June 2007 he was appointed as a Reserve Commissioned Officer of the Army.  

3.  His record contains a DA Form 1059 (Service School Academic Evaluation Report) showing he successfully completed OBC on 20 February 2008.

4.  He provided a copy of an OAB addendum which shows he completed and signed this form on 1 March 2008 and was assigned a BCN.

5.  On 25 April 2011, The Adjutant General (TAG) of the MNARNG sent a memorandum to the ARNG, Incentives Oversight Branch requesting an exception to policy on behalf of the applicant for payment of the $10,000 OAB.

6.  The TAG stated the exception to policy was to request retroactive entitlement for the $10,000 OAB due to the omission of the date near the witnessing officer's signature.  
  
7.  On 11 May 2011, the Chief of the Education, Incentives and Employment Division of the National Guard Bureau (NGB) sent a memorandum to the TAG of the MNARNG informing him that the request for exception to policy could not be approved.  The basis for the decision was that the applicant accepted a commission in the MNARNG on 25 March 2007 but did not sign the OAB until 
1 March 2008, therefore rendering a retroactive incentive.  In accordance with a Legal Opinion Memorandum, dated 4 March 2005, the Army may not pay a bonus retroactively absent a specific statutory grant of authority.  It was also determined that the applicant was ineligible to retain the $10,000 OAB incentive.  

8.  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.

9.  Paragraph 14o of NGB, Arlington, Virginia, Selected Reserve Incentive Program Guidance for Fiscal Year 2007 (Policy Number 07-06), dated 10 August 2007 and updated annually through March 2010, provides in order to be eligible for receipt of the OAB, applicants must sign their bonus addenda on the date that they accept their appointment/commission and meet the following eligibility requirements:

    a.  Agree to serve as an officer for a period of not less than 6 years on active drilling status and meet all the required eligibility.

    b.  Agree to serve in a critical skill Area of Concentration as defined by the ARNG.

    c.  Not accept an appointment as an officer or warrant officer for the purpose of qualifying for employment in a Military Technician or Active Guard Reserve position.

    d.  Not receiving and will not receive the following benefits during the period of service for which contracted:  Health Professions Stipend Program, Education Loan Repayment Program, Other Educational Assistance Programs - U.S. Marine Corps Platoon Leaders Class College Tuition Assistance Program, Reserve Officers' Training Corps (ROTC) Financial Assistance Program for Specially Selected Members, ROTC Financial Assistance Program for Specially Selected Members Army Reserve and ARNG, or Senior Health Care Professionals in Critically Short Wartime Specialties.

10.  Paragraph 14p also provides the ARNG offers a $10,000 OAB to newly commissioned officers and newly appointed warrant officers who agree to serve 6 years in a Modified Table of Organization and Equipment (MTOE) unit in a valid AOC.  The MTOE OAB will be paid in two 50 percent installments.  The first 50 percent installment ($5,000) will be paid upon successful completion of OBC or WOBC as applicable, and the second and final installment of 50 percent will be processed for payment on the third anniversary of commission or appointment.



DISCUSSION AND CONCLUSIONS:

1.  His request to be paid the remainder of the $10,000 OAB was carefully considered and determined to have merit. 

2.  He completed OBC on 20 February 2008.  The TAG of the MNARNG requested an exception to policy and authorization for retroactive payment of the OAB to the applicant which was subsequently denied by NGB based upon their policy which requires applicants to sign a bonus addendum on the specific date of their appointment/commissioning.

3.  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.  The NGB acknowledged these facts, but chose to adhere to the NGB policy requiring applicants to sign a bonus addendum on the date they accept their appointment/commission.

4.  As such, the facts of the case show the applicant fulfilled his end of the agreement and continues to serve in the MNARNG.  As a matter of equity, relief should therefore be granted in this case by:

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

	b.  remitting payment out of Army National Guard funds in the amount of $5,000; and

	c.  voiding repayment of the initial $5,000 of the OAB he received.   

BOARD VOTE:

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

	b.  remitting payment out of Army National Guard funds in the amount of $5,000; and

	c.  voiding repayment of the initial $5,000 of the OAB he received.   




      _______ _   _______   ___
       	   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)                                         AR20110013547





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ABCMR Record of Proceedings (cont)                                         AR20110013547



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