IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20120002944 


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 to be paid his second $5,000.00 installment payment of his officer accession bonus (OAB).

2.  The applicant states he was commissioned as a second lieutenant (2LT) in the Massachusetts Army National Guard (MAARNG) in May 2008 and was awarded a $10,000.00 OAB.  He states the first $5,000.00 installment payment was made in January 2009 when he completed the basic officer leadership course with the second payment being due at the anniversary of his third year of service.  When he did not receive his payment he submitted an inquiry through his unit S-1 and was informed that his payment had been denied because of a missing signature.  He further states he submitted a request for an exception to policy (ETP) and his request was denied.

3.  The applicant provides a copy of his request for an ETP.

CONSIDERATION OF EVIDENCE:

1.  On 23 May 2008,he was commissioned as a military intelligence 2LT in the MAARNG.  He also signed an OAB Agreement in which he agreed to serve in the Selected Reserve in a critical skill that is designated for bonus entitlement by the Secretary of the Army.  The applicant's bonus agreement was not signed by a service representative or witnessing officer.

2.  The applicant completed the Military Intelligence Officer Leadership Course on 17 December 2008 and he was awarded area of concentration (AOC) 35D.  He was promoted to the rank of first lieutenant on 23 November 2009.  He deployed to Afghanistan from 4 October 2010 to 17 July 2011.

3.  Meanwhile, on 30 June 2011, he submitted a request for an ETP to receive his second installment payment of his OAB and was supported by his battalion commander who indicated the applicant had fulfilled his part of the contract and should not be penalized for the MAARNG's failure to notice the errors until after 3 years had elapsed.  However, it appears his request was denied.

4.  On 4 December 2011, officials at the National Guard Bureau (NGB) responded to a second review of the applicant's request for an ETP.  Officials at NGB denied the applicant's request to retain his OAB and directed the State incentive manager to terminate his eligibility without recoupment.  Officials at NGB also indicated the applicant's bonus control number had been obtained after he had signed the agreement and thus was not eligible to retain the incentive.

5.  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 paragraph (2)(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 (2)(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.

6.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs), paragraph 2-5, provides that 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.

7.  NGB Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007 (Policy Number 07-06 – which was continued to FY08), dated 10 August 2007, paragraph 14, provides that in order to be eligible for receipt of either of two OAB's, applicants must sign their bonus addendums on the date they accept their appointments/commissions 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 AOC 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; and

	d.  not be 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, Reserve Officers' Training Corps (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.

8.  NGB SRIP Guidance for FY07 (Policy Number 07-06), dated 10 August 2007, paragraph 14p, also provides that the ARNG offers a $10,000.00 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 ($5,000.00) will be paid upon successful completion of an officer basic course (OBC) and the second and final 50-percent installment will be processed for payment on the third anniversary of commission or appointment.

 DISCUSSION AND CONCLUSIONS:

1.  There is no doubt the applicant entered into an agreement for payment of an OAB.  However, the agreement was determined to be an invalid agreement 3 years after the fact because it appears his agreement was not signed and witnessed by proper authorities at the time and his bonus control number was obtained after he signed his agreement.

2.  The applicant attests he was informed that in return for his agreement to fulfill a 6-year commitment in the ARNG and by successfully completing the required training within 3 years of his appointment/commissioning date, he would be paid a $10,000.00 OAB.

3.  The applicant was commissioned as a 2LT on 23 May 2008, completed his military intelligence OBC on 17 December 2008 and was paid $5,000.00 of his OAB in March 2009.  However, in 2011 he was not paid the second $5,000.00 OAB payment because of the administrative irregularities discovered in his agreement.

4.  Officials of both the MAARNG and NGB affirm the applicant's contention and acknowledge this error occurred as a result of an administrative oversight on the part of the MAARNG Incentive Office and was due to no fault of the applicant.

5.  The MAARNG supported the applicant's request for an ETP and authorization for the remaining payment of the OAB, which was subsequently denied by NGB based upon the fact that the bonus control number was requested after the applicant signed his agreement.

6.  The evidence shows the applicant fulfilled the requirements to qualify for payment of the bonus, did absolutely nothing wrong, and upheld his end of the bargain.  Therefore, notwithstanding the denial by NGB, it would serve the interest of equity and justice to pay him the remainder of his OAB.  It simply does not make sense to hold the applicant at fault for the administrative errors made in completing the addendum as a newly-commissioned 2LT when more experienced officers who were responsible for officer accessions failed to ensure that one was properly completed.  This is especially true since he was paid his initial installment and the MAARNG waited 3 years to inform him that his contract was not valid for administrative reasons.  If it took the MAARNG 3 years to discover that his contract/addendum was administratively flawed, it is not reasonable that a newly-commissioned 2LT would know what the procedures were on the date he was commissioned.

7.  In short, the applicant has to date been penalized for relying on those officials responsible for recruiting officers.  However, it is not appropriate for the applicant to suffer for the mistakes of more senior officials that were responsible for ensuring that all paperwork was done in a proper manner and it does not send the proper kind of message to a future leader or demonstrate that the Army takes care of its own and is responsible for its actions.

8.  Accordingly, in the interest of justice and equity, the applicant should be paid his remaining OAB installment.



BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he properly executed and signed a properly-prepared 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 OAB Agreement and

	b.  having the Defense Finance and Accounting Service remit the remaining $5,000.00 payment to the individual concerned for the total amount of the $10,000.00 bonus, less applicable deductions, out of 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)                                         AR20120002944



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ABCMR Record of Proceedings (cont)                                         AR20120002944



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