BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110017461 


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 date on his contract for payment of an Officer Accession Bonus (OAB) be changed by two days before his commissioning, thereby allowing him to receive an OAB in the amount of $10,000.00 in accordance with the terms of his appointment in the New York Army National Guard (NYARNG).

2.  The applicant states:

* He qualified for an OAB in the amount of $10,000.00
* Due to no fault of his own, the OAB addendum was signed two days late and the $10,000.00 OAB is not being paid 
* Due to an administrative error between Fort Rucker and the NYARNG, the second half of his OAB is not being paid and the first half is being recouped

3.  The applicant provides:

* Denial of OAB incentive memorandum, dated 28 March 2011
* Exception to policy letters, dated 11 March 2011 and 26 April 2011

CONSIDERATION OF EVIDENCE:

1.  Following a period of enlisted service in the ARNG, the applicant was appointed/commissioned as a warrant officer one (WO1) in the ARNG effective 
5 February 2008.
2.  On 7 February 2008, he signed a Written Agreement – OAB Addendum in which he agreed to serve in the ARNG under the Selected Reserve Incentive Program (SRIP) for a period of 6 years.  The addendum also shows he would receive a bonus of $10,000.00 paid in two 50% installments.  The first 50% installment is payable upon successful completion of OBC (Officer Basic Course)/WOBC (Warrant Officer Basic Course), and the second and final 50% installment is payable on the third-year anniversary of his commission/ appointment date.

3.  He completed Aviation WOBC on 9 July 2009.

4.  On 11 March 2011, the Director, Military Personnel of NYARNG sent a memorandum to the Chief, Guard Strength Education requesting an exception to policy to waive recoupment and pay any remaining entitlement to the applicant.  The memorandum states:

* The applicant is eligible for the OAB
* He has a bonus control number in IMARC and he has served his contract as required
* He received his first 50% installment
* During review for his second payment it was discovered his OAB addendum was not signed on the appointment date
* Warrants are appointed at Fort Rucker but Fort Rucker did not assist with any of the bonus paperwork
* Due to a breakdown between the state and Fort Rucker, the applicant executed the contract as soon as he returned to the state
* The applicant's contract was done within 2 days of the appointment

5.  On an unknown date, the Incentive Manager of the NYARNG sent a memorandum to the Chief of the Education, Incentives and Employment Division of the National Guard Bureau (NGB) requesting an exception to policy for retention of the OAB for the applicant.

6.  On 28 March 2011, the Chief, Education Incentive and Employment Division, provided a memorandum indicating the applicant was not eligible to retain the $10,000.00 OAB.  The memorandum states:

*  In accordance with the ARNG SRIP guidance for fiscal year 2007 
      (10 August 2007 to 31 March 2008), Policy Number 07-06; the applicant
      accepted a commission as a warrant officer in the NYARNG on 
      5 February 2008
* He was accessed into the critical area of concentration skill of 153D but he did not sign the OAB addendum until 7 February 2008 and therefore the incentive is retroactive
* SRIP Policy Number 07-06, paragraph (o) specifically states "Applicants must sign their addenda on the date that they accept their commission"
* 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 applicant has been paid the initial half of the incentive in the amount of $5,000.00 

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 (SRIPs).

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 place 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.

11.  National Guard Regulation 600-7, chapter 2, paragraph 2-5, provides enlistment bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by state policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be paid an accession bonus in the amount of $10,000.00 per his Written Agreement OAB addendum was carefully considered and determined to have merit.

2.  He was appointed a WO1 in the ARNG on 5 February 2008 and his Written Agreement OAB addendum indicated he would be paid a $10,000.00 bonus in two 50% installments.  His first installment would be payable upon successful completion of WOBC.  He completed Aviation WOBC on 9 July 2009 and he received his first installment.  His second installment would be payable on the third anniversary of his commission/appointment, which is 5 February 2011 but he did not receive his second installment. 

3.  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/
commissioning.

4.  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.

5.  Evidence shows the applicant fulfilled the requirement of his Written Agreement OAB addendum, did absolutely nothing wrong, and upheld his end of the bargain.  Therefore, it would serve the interest of equity and justice to pay him an OAB according to the parameters of his Written Agreement OAB addendum.

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 he executed and signed an Officer Accession Bonus 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 agreement; and

   b. having the Defense Finance and Accounting Service remit payment to the individual in the amount of $10,000.00, the total amount of the bonus, from ARNG funds, 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)                                         AR20110017461



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ABCMR Record of Proceedings (cont)                                         AR20110017461



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