IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110022024 


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 payment of an officer accession bonus (OAB) in the amount of $10,000.

2.  The applicant states, in effect, he was verbally and contractually offered a $10,000 OAB upon graduation from his Officer Basic Course (OBC).  The DA Form 4856 (Developmental Counseling Form) and OAB written agreement were submitted through channels and he was never informed he was not eligible to receive the OAB.  He states on 16 March 2007 he was told again that he would receive the OAB and signed the written agreement OAB acknowledgment which was pen and ink changed from $6,000 to $10,000 based on a change in the bonus amount.  The document was then signed by the Retention Noncommissioned Officer and the officer who administered his oath of office at commissioning.

3.  The applicant provides a:

* DA Form 4856
* DA Form 61 (Application for Appointment)
* DA Form 1059 (Service School Academic Evaluation Report)
* Written Agreement Officer Accession Bonus Acknowledgement

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records show that on 16 March 2007 he was appointed a Reserve Commissioned Officer of the U.S. Army in the grade of second lieutenant.  He graduated from the Military Intelligence OBC, area of concentration (AOC) 35D, on 2 September 2009.  He is currently serving in a U.S. Army Reserve (USAR) troop program unit.  

3.  On 16 March 2007, the applicant completed a Written Agreement Officer Bonus Acknowledgment, which reflected in connection with his appointment as an officer and agreement to serve with the USAR under the Selected Reserve Incentive Program (SRIP).  He agreed to serve in a critical officer skill that was designated for bonus entitlement by the Secretary of the Army.  He further acknowledged that he was entitled to a bonus as a member of the USAR Selected Reserve (SELRES) and agreed to serve in the SELRES for 6 years at which time he would receive a bonus of $10,000 paid in one lump sum upon successful completion of OBC.  He acknowledged he must accept a commission or appointment as an officer, satisfactorily complete the service obligation incurred under the agreement, and complete OBC within 36 months of the date of appointment to receive the entire bonus amount.  This document was authenticated with his signature and a witness signature on 16 March 2007.

4.  A spreadsheet attached to a Headquarters, USAR memorandum, subject: Fiscal Year 2006 (FY06) SRIP Policy Guidance for 24 Feb 06 through 30 Sep 06, dated 23 February 2006, lists the 35D AOC as "not authorized" the OAB. 

5.  In a Headquarters, USAR Element Memorandum for Record, dated 29 June 2010, a commander stated the applicant had a written agreement that upon completion of OBC he should receive a $10,000 bonus.  The commander further stated the applicant would need to submit a request for an exception to policy because AOC 35D was not on the SRIP list when the applicant signed the DA Form 61 effective 17 June 2006.  

6.  A memorandum from the Military Intelligence Reserve Command (MIRC) Retention Office, subject: Request for Exception to Policy for OAB, dated 29 October 2010, indicated the applicant signed a DA Form 4856 indicating he was entitled to and would receive a $10,000 commissioning (i.e., accession) bonus and that the applicant had signed a written agreement stating he would receive this bonus.  This office stated it was later discovered that the OAB was not on the SELRES SRIP at the time the applicant started the process.
  
7.  During the processing of this case, an advisory opinion was obtained from the Chief, Officer Division, Department of the Army (DA) Office of the Deputy Chief of Staff, G-1.  The DA G-1 official reviewed the applicant’s case and stated to be eligible for the SELRES OAB an individual in the USAR must meet the Headquarters, DA (HQDA) eligibility criteria published in All Army Activity Message 017/2005 and the current USAR SRIP announcement in effect on the date the individual makes application for officer appointment/training.  In addition, the individual must sign an agreement to accept a commission in a critically short officer AOC listed in the current USAR SRIP announcement.

8.  The DA G-1 official stated the SRIP is approved annually at the beginning of the fiscal year by the Secretary of the Army for Manpower and Reserve Affairs.  The Army National Guard and the USAR are authorized to make a mid-year adjustments to eligible AOCs in coordination with the Director, Military Personnel Management.  Once approved, the Army National Guard and the USAR publish their respective SRIP announcements, including any of their own additional policy restrictions for the bonus.

9.  The DA official further stated the HQDA policy proponent for the SELRES OAB previously contacted the USAR SRIP manager for the USAR Command on multiple occasions to verify the command's position on authorizing payment of the bonus to other officers appointed in Military Intelligence with a designation in AOC 35D at approximately the same time as the applicant.  The command consistently maintained the position that AOC 35D was intentionally marked as an AOC "not qualified" for the OAB.  Furthermore, AOC 35D remained ineligible for the OAB up to and after the applicant's date of commissioning.  Therefore, the recruiter who offered the bonus to the applicant did so without authority.  The Army G-1 official recommended disapproval of the applicant's request since AOC 35D was not an authorized critical skill for the SELRES OAB and this information was available to all recruiters for the Army Reserve members for over 2 months before the applicant signed the bonus agreement.  While the applicant complied with all terms of the contract offered to him by the retention officer responsible for bonus contracting, he was erroneously offered the bonus.

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.  The United States Supreme Court’s opinion in United States v. Larionoff,   431 US 864 (1977) concerning military re-enlistment bonuses does not alter fundamental rules of law that (1) a service member’s entitlement to military pay is governed by statute rather than ordinary contract principles, and (2) in absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents; hence the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can the bonus amount be established through private negotiation or contract between the member and his recruiter.

12.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard and USAR incentive programs.  The SRIP incentive is offered to newly-accessed officers who met eligibility criteria and accessed into an officer specialty listed in the SRIP, for the period in which commissioned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed a Reserve Commissioned Officer on 16 March 2007.  He signed a DA Form 4856 acknowledging he would receive a $10,000 OAB upon completion of OBC, which he completed on 2 September 2009.

2.  A spreadsheet attached to a Headquarters, USAR FY06 SRIP Policy Guidance memorandum for 24 Feb 06 through 30 Sep 06 lists the 35D AOC as "not authorized" the OAB.  

3.  A commander acknowledged in a Headquarters, USAR Element Memorandum for Record that AOC 35D was not on the SRIP list when the applicant signed the DA Form 61, effective 17 June 2006.

4.  The HQDA G-1 advisory opinion noted AOC 35D was not an authorized critical skill for the SELRES OAB and this information was available to all recruiters for Army Reserve members for over 2 months before the applicant signed the bonus agreement.  The HQDA G-1 official stated the applicant was offered the OAB in error as his AOC of 35D remained ineligible for the OAB up to and after the applicant's date of commissioning.  While the applicant complied with all terms of the contract offered to him by the retention officer responsible for bonus contracting, he was erroneously offered the bonus.

5.  The Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties.  The Army has limited funds to apply to bonuses.  Those bonuses should be applied prudently to maximize the Army’s return on its investment (i.e., to offer a bonus only in instances where its purpose would mitigate a current or projected significant shortage of personnel in a particular skill).  

6.  Regrettably, in view of the foregoing, there is an insufficient basis for granting the applicant's request.

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)                                         AR20110022024



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ABCMR Record of Proceedings (cont)                                         AR20110022024



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