IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120000805 


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 remission/cancellation of his debt established based on recoupment of an Officer Accession Bonus (OAB).

2.  The applicant states he served the full 6-year term required by his written agreement which contains no signature from a service representative.  He claims he was never informed of collection of the debt by his unit or the Defense Finance and Accounting Service.

3.  The applicant provides the OAB written agreement in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant served in the Regular Army in an enlisted status from 12 May 1997 through 11 May 2003 and in the Army National Guard (ARNG) from 12 May 2003 through 23 January 2005 at which time he was honorably discharged in the rank of sergeant/E-5 to accept an appointment as a commissioned officer or warrant officer.

2.  On 24 February 2005, the applicant was appointed as a second lieutenant in the ARNG.  On 28 June 2006, a DA Form 5447 (Written Agreement – OAB Addendum) was completed by the applicant and a service representative.  Paragraph 2 of the agreement contains the obligations incurred by the applicant in connection with his agreement to accept an appointment as an officer serving in the Selected Reserve.

3.  Included in the obligations listed in paragraph 2 of the DA Form 5447 was acceptance of an appointment as an officer serving in the Selected Reserve and commitment to serve in the Selected Reserve of the ARNG of the United States for 6 years.  Paragraph 2 also stipulated that the bonus accrued beginning on the date the agreement was accepted by the Secretary of the Army.  The copy of the agreement in the record contains the signatures of both the applicant and a service representative.

4.  In connection with the processing of this case, an advisory opinion was obtained from the Incentives and Budget Branch, Enlisted Accessions Division, Officer of the Deputy Chief of Staff, G-1.  This official recommends denial of the applicant's request.  He states the applicant was informed of a bonus-related debt in concert with his transfer from the ARNG to the U.S. Army Reserve (USAR) Control Group on 1 November 2010.  He further states that in the bonus agreement completed on 28 June 2006, the applicant agreed to serve as an officer in the Selected Reserve for 6 years and that the bonus accrued beginning on the date the agreement was accepted by the Secretary of the Army.  He opines that although the applicant completed over 6 years of service in a Selected Reserve when his enlisted and officer time is combined, the bonus agreement required he complete 6 years from the date the agreement was signed.

5.  On 18 March 2012, the applicant provided a response to the G-1 advisory opinion.  He states, in effect, he does not believe the agreement he signed is legal based on the lack of official letterhead and the lack of authenticating signatures.  He also believes he completed the 6-year requirement based on his total service which includes service in the USAR Individual Ready Reserve (IRR), which he believes through any normal interpretation of the agreement would qualify for service in the Selected Reserve.  He concludes that he does not understand why his service in the USAR does not qualify as service in the Selected Reserve and asks if the agreement applied solely to service in the ARNG.

6.  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 the officer skills to which the authority under this subsection is to be applied.  Paragraph (2)(b) states that a skill may be designated for an Armed Force bonus under subparagraph (a) if, to mitigate a current or projected significant shortage of personnel in the 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.

7.  Title 10, U.S. Code, section 10143 states that within the Ready Reserve of each of the Reserve components there is a Selected Reserve.  The Selected Reserve consists of units.  Section 10144 states that within the Ready Reserve of each of the Reserve components there is an Individual Ready Reserve.  The Individual Ready Reserve consists of those members of the Ready Reserve who are not in the Selected Reserve or the inactive National Guard.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for cancellation/remission of the debt he incurred based on recoupment of his OAB has been carefully considered.  However, there is insufficient evidence to support his claim.  By law, members who fail to complete the term of enlistment for which a bonus was paid are subject to recoupment.

2.  The evidence of record confirms the applicant completed an agreement that both he and a service representative authenticated with their signatures on 28 June 2006.  It is also clear that the applicant agreed to serve as an officer in the Selected Reserve for 6 years from the date this agreement was signed on 28 June 2006, as evidenced by the DA Form 5447 on file in the applicant's official military personnel file.

3.  The applicant's assertion that he satisfied the terms of agreement based on his total service, which included service in the USAR IRR, is not supported by the evidence.  The agreement clearly stipulates the applicant had to complete his service in the Selected Reserve of the ARNG of the United States and even if service in the Selected Reserve of the USAR could be included, the USAR IRR –a Ready Reserve status – does not qualify as Selected Reserve service.

4.  The above descriptions of the IRR and the Selected Reserve are confirmed by statute -- The IRR consists of those members of the Ready Reserve who are not in the Selected Reserve.

5.  Further, as confirmed by the G-1 advisory opinion, the applicant was clearly informed of the bonus-related debt at the time of his voluntary transfer from the ARNG to the IRR.  Given that the applicant failed to fulfill the commitment he made at the time he entered into the Selected Reserve commitment, there is an insufficient evidentiary basis to support granting the requested relief.

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 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)                                         AR20120000805



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ABCMR Record of Proceedings (cont)                                         AR20120000805



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