BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110014753 


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 correction of his military records to show his officer accession bonus (OAB) contract was signed prior to his oaths of office.  

2.  The applicant states:

	a.  Prior to attending officer candidate school (OCS) at Fort McClellan, AL, he was told that since he was 39 years of age he should board for his commission prior to leaving so he could be commissioned upon his graduation from OCS.  His 40th birthday was on 31 March 2008 a few weeks after graduation and the concern was any delay in his commissioning might make him ineligible.  When he graduated from OCS, Lieutenant Colonel (LTC) MB came from Michigan to swear him in.  He was the only Michigan Army National Guard (MIARNG) Soldier to commission that day and the only Soldier from his class that did not receive full payment of the $10,000.00 OAB.  LTC MB did not bring the OAB Addendum when she came for the graduation so he was unable to sign it at that time.  The addendum was not signed until the OCS paperwork was processed on 31 March 2008.

	b.  After completing the Officer Basic Course (OBC), he requested to have the first half of his bonus paid.  Due to a problem with the Federal Recognition, he was not paid the first installment of $5,000.00 until 2 February 2009 and was told he would be paid the next installment on 7 March 2011.  Once this date passed, he inquired about his OAB through Sergeant First Class (SFC) KMM, the MIARNG State Incentive Manager.  She found out that the discrepancy in the date he took the oaths of office and the date he signed the OAB Addendum was the reason he had not been paid the second installment of the bonus.

	c.  In May 2011, SFC KMM submitted an exception to policy request to the National Guard Bureau (NGB) requesting authorization for payment of the second installment of the OAB.  The request was denied.

3.  The applicant provides DA Form 71 (Oath of Office), OAB Addendum, four memoranda, and 10 pages of email.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Transportation Corps second lieutenant in the MIARNG in the critical area of concentration (AOC) skill of 88D (Motor/Rail Transportation Officer) and executed the oaths of office on 8 March 2008.  

2.  In connection with his appointment, he and his recruiter signed an OAB Addendum on 31 March 2008.  Paragraph 3d of this form stated "I am being accessed into an MTO&E (modified table of organization and equipment) unit that is not identified as an NGB critical UIC (unit identification code).  I shall receive a bonus of $10,000.00 paid in two 50 percent installments.  The first 50 percent installment is payable upon successful completion of OBC and the second and final installment is payable on the third-year anniversary of my commission/appointment date."

3.  On 18 May 2011, the MIARNG submitted a request to the NGB for an exception to policy to grant an OAB to the applicant.  The request stated, in pertinent part:

	a.  The applicant's 40th birthday was on 31 March 2008, three weeks after he would graduate from OCS.  He was advised to complete his oaths of office immediately in order to avoid any delays that could prevent him from commissioning.

	b.  He took his oaths of office upon completion of OCS on 8 March 2008.  He was eligible to receive an OAB at that time but no addendum was completed.  After he returned to Michigan the addendum paperwork was completed and signed.

	c.  The witnessing officer to the applicant's addendum was later relieved of his duties as he oversaw the completion of multiple erroneously executed OAB Addenda.  [The Applicant] entered this agreement in good faith that he was eligible to receive the incentive and had no way of knowing he had to sign the agreement upon taking the oaths of office.  He followed the guidance he was given and believed he would receive this incentive upon his commissioning.

4.  On 1 June 2011, an official at the NGB, denied the request for an exception to policy.  The official stated the applicant accepted a commission in the MIARNG on 8 March 2008 into the critical AOC skill of 88D.  The Soldier did not sign the OAB Addendum until 31 March 2008 and had been paid the initial half of the incentive in the amount of $5,000.00.  Selective Reserve Incentive Programs (SRIP) Policy Number 07-06 stated "Applicants must sign their bonus addenda on the date they accept their commission."  The Army may not pay a bonus retroactively absent a specific statutory grant of authority.  The official further stated the applicant could file a claim with the Army Board for Correction of Military Records if he believed an error or injustice existed.

5.  Title 37, U.S. code, chapter 5, section 324, provides for an OAB for new officers in critical skills.

	a.  Under regulations prescribed by the Secretary concerned, a person who executes a written agreement to accept a commission or an appointment as an officer of the Armed Forces and to serve on active duty in a designated critical officer skill for the period specified in the agreement may, upon acceptance of the agreement by the Secretary concerned, be paid an OAB in an amount determined by the Secretary concerned.

	b.  The Secretary concerned shall designate the critical officer skills for the purposes of this section.  A skill may be designated as a critical officer skill for an Armed Force under this subsection if, (1) in order to meet requirements of the Armed Force, it is critical for the Armed Force to have a sufficient number of officers who are qualified in that skill; and (2) in order to mitigate a current or projected significant shortage of personnel in the Armed Force who are qualified in that skill, it is critical to access into that Armed Force in sufficient numbers persons who are qualified in that skill or are to be trained in that skill.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time the applicant took the oaths of office on 8 March 2008, AOC 88D was listed as a designated critical officer skill and an OAB of $10,000.00 was offered for appointment in this AOC.  

2.  It appears his recruiting officials gave him incorrect advice when he was told to take his oaths of office on one date and sign his OAB Addendum on a later date.  It is evident that an error was committed when his addendum was not signed until 31 March 2008.  But regardless of the discrepancy in the date of his oaths of office and addendum, he acted in good faith and in accordance with the advice of recruiting officials.  He should not be penalized for an error committed by MIARNG recruiting officials.

3.  The applicant met all of the requirements he agreed to on his OAB Addendum contract; therefore, he should be entitled to receive payment of the bonus.

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 Department of the Army and State Army National Guard records of the individual concerned be corrected to show: 

* he signed his OAB Addendum on 8 March 2008 for the bonus in the amount of $10,000.00
* he is eligible for payment of the bonus in accordance with the terms of his addendum contract
* his OAB as specified in his addendum contract is to be paid from ARNG funds



      _______ _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)                                         AR20110014753





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ABCMR Record of Proceedings (cont)                                         AR20110014753



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