BOARD DATE:	   3 April 2012

		DOCKET NUMBER:  AR20120001954 


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 a $10,000 Officer Accession Bonus (OAB) he was guaranteed when he reentered military service in 2007.   

2.  The applicant states the Army revoked a written contractual obligation in the amount of $10,000 made to him when he joined.  He claims he was promised a $10,000 OAB to reenter active service on 20 December 2007.  He claims he was recruited to join the Army National Guard (ARNG) as a chaplain and was guaranteed, in writing, a sign-on accession bonus in the amount of $10,000 in addition to the Student Loan Repayment Program (SLRP).  He claims that based in part on these financial incentives, he agreed to come out of retirement and deploy to a war zone.  He states 9 days after completing his obligation on 
28 December 2010, he was notified that the Army had reneged on the contract.  Moreover, he was told he must return the initial $5,000 installment of the bonus he had already received.  He claims he double checked the contractual terms before he agreed to return to service in 2007 and contacted the National Guard Bureau (NGB) to confirm he was qualified for both the accession bonus and SLRP benefits.  The NGB confirmed he was legitimately entitled to both.  

3.  The applicant provides the seven documents identified in his application in support of the request.  



CONSIDERATION OF EVIDENCE:

1.  On 20 December 2007, the applicant was appointed a first lieutenant in the Chaplain Corps of the Nebraska Army National Guard (NEARNG) and granted Federal Recognition.  

2.  The record contains a written affiliation bonus agreement for the Chaplain Loan Repayment Program (CLRP) and a written agreement for an OAB in the amount of $10,000.00 to be paid in two installments of 50 percent (%).  Both agreements were completed on 3 January 2008 and signed by both the applicant and a service representative.  

3.  On 28 December 2010, the applicant was informed that as a result of a State audit of the National Guard Bureau (NGB) incentives programs, it was determined he was approved for and paid an OAB he was not eligible for  because the law prohibited him from receiving both CLRP benefits and an OAB.  

4.  The applicant requested and the State supported an exception to policy to waive the requirement for recoupment of the OAB because he had received the CLRP benefit and receipt of both incentives was prohibited by law.  In his request, he stated at the time of his commissioning this issue was addressed to the NGB by the State incentive managers and the NGB responded that the CLRP was not listed as a disqualifier and that the applicant should be offered both incentives.  On 16 March 2011, the State recommended approval of the exception to policy for the applicant to retain his OAB because in granting both benefits, the State incentive managers were acting on the advice of the NGB.

5.  On 24 March 2011, the NGB notified the State that the governing law prohibited the applicant from receiving both CLRP benefits and an OAB and the applicant was ineligible to receive the OAB.  It further indicated the applicant had received a $5,000.00 initial installment of the OAB and $19,999.98 in CLRP benefits and that the determination was made in the applicant’s best interest.  It finally stated the applicant could apply to this Board if he believed an error or injustice existed.  

6.  The applicant provides e-mail messages, dated in December 2007, in which the State incentive managers queried the NGB regarding the policy message indicating a member could not receive an OAB and the SLRP benefit.  The NGB response was that the policy prohibited receipt of both the OAB and SLRP; however, it did not say anything about the CLRP; therefore, both incentives should be sold to the applicant.    

7.  Title 37 of the United States Code, Section 308j (Special Pay: Affiliation Bonus for Officer in the Selected Reserve) contains guidance on OABs.  It states, in pertinent part, that a person may not receive an affiliation bonus or accession bonus and financial assistance under section 1609 (Education Loan Repayment Programs) for the same period of service.

8.  Office of the Secretary of Defense Memorandum, dated 21 May 2008, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends, establishes modified Department of Defense policy on repayment of unearned portions of bonuses, special pay educational benefits, and stipends.  Tab B identifies conditions under which repayment will not be sought.  It states, as a general rule, repayment action will not be pursued in situations due to circumstances determined reasonably beyond the member’s control.  

9.  Title 10 of the U.S. Code, Section 2774 (10 USC 2774) provides the legal authority for waiving claims for erroneous payment and allowances made to or on behalf of members or former members of the uniformed services if collection of the claim would be against equity and good conscience and not in the best interests of the United States.  Generally, these criteria are met by finding that the claim arose from an administrative error with no indication of fraud, misrepresentation, or lack of good faith on the part of the member or any other person having an interest in obtaining the waiver. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to be authorized both CLRP benefits and an OAB has been carefully considered and found to have partial merit.  The governing law prohibits payment of both an OAB and loan repayment program benefits for the same period of service.  As a result, honoring the applicant’s request to receive both bonuses guaranteed him upon his accession would be contrary to law and would not be appropriate.   

2.  However, by law erroneous payments may be waived when they arose from an administrative error with no evidence of fraud, misrepresentation, or lack of good faith on the part of the member.  In this case, it is clear the applicant was erroneously guaranteed both incentives in writing as a result of an administrative error through no fault of his own.  Therefore, it would be appropriate to correct the record to show remission/cancellation of the applicant’s OAB debt and show it was approved by the appropriate authority and clear any debt due the government from the applicant related to payment of the incentives in question. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X___  ____X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a remission/cancellation of his $5,000.00 debt related to the payment of the OAB incentive was approved by the appropriate authority.  

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to authorizing the applicant to receive the total amount of the OAB ($10,000).  



      _______ _   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)                                         AR20120001954



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ABCMR Record of Proceedings (cont)                                         AR20120001954



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