IN THE CASE OF: 

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120003674 


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 cancellation of the recoupment of his officer accession bonus (OAB).

2.  The applicant states he was told he was eligible for the OAB once he terminated his Student Loan Repayment Program (SLRP).  He contends that he terminated his SLRP and signed the OAB addendum in good faith and received his initial OAB payment.  He used most of the initial payment to pay off his student loans and upon inquiring about the second OAB payment, he was told he was ineligible for the OAB and could face recoupment.  He was also told he could get the SLRP back, but the SLRP is not good for him at this time because he paid off his loans with the help of the OAB.  He further contends that reinstating the SLRP and making him pay back the OAB will put a financial burden on him and his family.  Additionally, to take away the OAB and make him pay back the money does not make sense and is not in keeping with the U.S. Army tradition of helping Soldiers.  He concludes that whether or not he was eligible for the OAB is not his fault.  He took the oath and completed training in good faith and did all that was asked of him by his leadership and the North Dakota Army National Guard (NDARNG).

3.  The applicant provides a Written Agreement – OAB Addendum, memorandum from the NDARNG Incentives Manager, memorandum from the NDARNG Military Personnel Office (MILPO), and ARNG discharge orders.


CONSIDERATION OF EVIDENCE:

1.  After having served in the Regular Army, the applicant enlisted in the ARNG on 2 November 1995.  He was discharged from the ARNG on 1 November 1999. 
After a break in service, he again enlisted in the ARNG on 29 August 2001.

2.  On 30 June 2005, he extended his enlistment for a period of 6 years.  In connection with his extension, he signed Annex R to DD Form 4 (Enlistment/Reenlistment Document) (Reenlistment/Extension Bonus Addendum – ARNG of the United States) that shows he would receive a total bonus of $15,000.00.

3.  He also signed Annex S to DD Form 4 (SLRP Addendum – ARNG of the United States).  In the addendum, he indicated he had served the last 3 years consecutively in the ARNG and he was immediately extending his enlistment for a term of 6 years.  The addendum reads, "If Soldier is not receiving or extending for a bonus Soldier may extend for SLRP at any time provided all other extension criteria is met."  On his addendum, he acknowledged he had three existing loans in the (disbursed) amount of $4,711.17.

4.  On 19 September 2008, he was discharged from the ARNG for the purpose of appointment as a commissioned or warrant officer. The discharge orders indicate he was a participant in the retention bonus program and SLRP.

5.  On 20 September 2008, he accepted an appointment in the NDARNG in the rank of warrant officer one (WO1).

6.  He signed a Written Agreement – OAB Addendum at the time of his appointment.  The agreement indicates he was to receive a $10,000 bonus payable in two 50-percent installments, the first 50-percent installment payable upon completion of the warrant officer basic course (WOBC).  In the agreement he acknowledged that in connection with his appointment as an officer and agreement to serve with the ARNG under the Selected Reserve Incentive Program (SRIP), he was not currently receiving financial assistance under Title 10, U.S. Code, chapters 1608, 1609, 1611, 2107, or 2107, or special pay under Title 37, U.S. Code, section 302g, and will not receive such assistance during the period of this agreement.

7.  On 31 March 2009, he completed the WOBC.

8.  On 6 December 2011, the NDARNG Incentives Manager submitted a request to the National Guard Bureau (NGB) to retain the applicant's OAB as an exception to policy.  In response to this request, the NGB Deputy G-1 notified the NDARNG Incentives Manager that the request was denied and directed termination of the incentive with recoupment.  In the notification, NGB stated the applicant signed his OAB at the time of his appointment.  A later review of the documentation revealed the applicant was not eligible for the OAB due to having an active SLRP contract.  In accordance with Title 37, U.S. Code, chapter 5, section 308j, a person may not receive OAB and financial assistance under Title 10, chapters 1608, 1609, or 1611 or under section 302g of this title, for the same period of service.  The NGB Deputy G-1 advised the NDARNG that the applicant could apply to this Board if there were a belief that an error or injustice existed.

9.  He provided memoranda from the NDARNG Incentives Manager and the NDARNG MILPO showing they fully support the termination of the recoupment because the applicant was told he was eligible for the OAB and signed the contract in good faith.

10.  Departments of the Army and the Air Force, NGB, Arlington, VA, SRIP Guidance for Fiscal Year 2007 (Policy Number 07-04), paragraph 8q, dated 1 January 2007, states the ARNG offers a $10,000.00 OAB to newly-commissioned officers and newly-appointed warrant officers who agree to serve in the ARNG and meet the following eligibility requirements:

	a.  agree to serve 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 AGR position, and

	d.  are 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, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been carefully considered.

2.  The available records show he signed Annex S to his DD Form 4 in connection with the extension of his enlistment on 30 June 2005 and acknowledged he had three existing loans in the (disbursed) amount of $4,711.17.

3.  Although he contends that it was not his fault he received the OAB and that he signed the OAB addendum in good faith, he signed his Written Agreement – OAB Addendum on 20 September 2008 and he acknowledged that in connection with his appointment as an officer and agreement to serve with the ARNG under the SRIP, he was not receiving financial assistance under Title 10, U.S. Code, chapters 1608, 1609, 1611, 2107, or 2107a, or special pay under Title 37, U.S. Code, section 302g, and would not receive such assistance during the period of this agreement.

4.  In accordance with NGB SRIP Guidance for Fiscal Year 2007 (Policy Number 07-04), paragraph 8q, he was not eligible to receive and would not be eligible to receive the SLRP, among other incentives.

5.  He was receiving benefits under the SLRP.  Therefore, consistent with Federal law and his Written Agreement – OAB Addendum, he is not eligible to retain the OAB and any payments received from this incentive were correctly terminated and recoupment action initiated.  Granting him a waiver for recoupment would afford him a benefit which others in similar situations have not been afforded.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120003674



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ABCMR Record of Proceedings (cont)                                         AR20120003674



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