IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110021829 


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 accordance with the terms of his Written Agreement - OAB Addendum in the Minnesota Army National Guard (MNARNG) and cancellation of recoupment of monies he already received for his OAB.

2.  He states an incorrect copy of the OAB Addendum was submitted because the original was lost.  The original OAB Addendum was discovered during the processing of his request for exception to policy for payment of the $10,000 OAB.  The exception to policy request was denied based on the belief that the OAB was submitted after the fact. 

3.  He provides: 

* Two Written Agreement - OAB Addenda
* His initial appointment orders
* His Oath of Office
* Federal Recognition orders
* A request for exception to policy 

CONSIDERATION OF EVIDENCE:

1.  His records show he entered an Army Senior Reserve Officers’ Training Corps Scholarship Cadet Contract on 22 March 2007.  He enlisted in the MNARNG on 9 September 2008.

2.  He provided two separate Written Agreement – OAB Addenda.  He signed the first addendum on 13 May 2009, which only contains his signature; and he signed the second addendum on 17 May 2009.  The second addendum was signed by all required parties.   

3.  On 17 May 2009, he signed an Oath of Office in the rank of second lieutenant in the MNARNG, and was appointed as a Reserve Commissioned Officer of the Army on the same day.  

4.  His record contains a DA Form 1059 (Service School Academic Evaluation Report) showing he successfully completed the Engineer Basic Officer Leadership Course on 21 September 2010.

5.  On 5 April 2011, the Education Services Officer of the MNARNG sent a memorandum to the ARNG, Incentives Oversight Branch, requesting an exception to policy on behalf of the applicant. 

6.  The Education Services Officer requested that the applicant be allowed to retain the $10,000 OAB and payment of the second installment.  He noted the first OAB addendum was not signed by a witnessing officer. 

7.  On 4 May 2011, the Chief of the Education, Incentives and Employment Division of the National Guard Bureau (NGB), sent a memorandum to the State Incentive Manager, MNARNG, informing that office 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 17 May 2009, but signed the OAB on 13 May 2009.  He further stated that the OAB was invalid because it was not dated or signed by a service representative or witnessing officer.   

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 that 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, 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 states 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 the officer basic course 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 retain the incentive he has already received and to be paid the remainder of the $10,000 OAB was carefully considered and determined to have merit. 
2.  He signed the first OAB addendum on 13 May 2009, which did not contain a witnessing officer’s signature.  He took his Oath of Office and signed a second OAB addendum on 17 May 2009.  Due to no fault of the applicant’s, the addendum dated 13 May 2009 was submitted to the NGB along with his request for exception to policy.  

3.  The NGB denied the request because a witnessing officer neither dated nor signed the 13 May 2009 OAB addendum. 

4.  The evidence of record shows he entered the agreement in good faith, fulfilled the requirements of the written agreement, and upheld his end of the contract.  Therefore, notwithstanding the NGB denial of his request for exception to policy, as a matter of equity relief should 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 Written Agreement – OAB Addendum; 

	b.  remitting payment out of ARNG funds in the amount of $5,000 for the second installment of the OAB; and

	c.  voiding recoupment of the initial $5,000 of the OAB he has already received.   

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 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 Written Agreement – OAB Addendum; 

	b.  remitting payment out of ARNG funds in the amount of $5,000 for the second installment of the OAB; and

	c.  voiding recoupment of the initial $5,000 of the OAB he has already received.   




      _______ _   _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)                                         AR20110021829





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ABCMR Record of Proceedings (cont)                                         AR20110021829



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