IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120006346 


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 the remission or cancellation of his Officer Accession Bonus (OAB) debt or as a minimum, that the debt be prorated based on the time he served before the audit was conducted that assessed the debt.

2.  The applicant states, in effect, that an audit conducted by the National Guard Bureau (NGB) in December 2010 determined that he had received an OAB which he was not entitled to receive because he was participating in the Student Loan Repayment Program (SLRP).  He further states that he requested an exception to policy to have the debt forgiven and his request was denied.  He also states that when he entered into the OAB agreement he relied on the State Incentives Manager to ensure his eligibility; however, his reliance on the subject matter experts has caused him to be indebted to the government for $10,000 and puts an unnecessary financial and emotional burden on him and his family.  He continues by stating that he would have  accepted the commission without a bonus and he had made two deployments since he was commissioned and he does not believe it to be fair to impose such a financial burden on him and his family. 

3.  The applicant provides a three-page letter explaining his application, a copy of the memorandum terminating his OAB, copies of his SLRP and OAB Addenda, a page from National Guard Regulation 600-7, copies of his enlisted separation documents, copies of his Officer Evaluation Reports, and a copy of the denial of his request to terminate recoupment of his bonus.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Nebraska Army National Guard (NEARNG)      on 14 December 1999.  He completed his training and was returned to his NEARNG unit.  He was advanced to the pay grade of E-4 on 24 April 2005     and on 23 December 2005 he entered into a SLRP agreement.

2.  On 7 May 2006, he was honorably discharged from the NEARNG to accept an appointment as a commissioned officer.

3.  On 8 May 2006, he was appointed as a second lieutenant in the NEARNG and on the same date he entered into an OAB agreement in the amount of $10,000.
  
4.  The applicant deployed to Iraq from 9 February to 30 November 2007 and he was promoted to the rank of first lieutenant on 8 May 2008.

5.  He deployed to Afghanistan on 6 December 2010.  On 28 December 2010, the State of Nebraska Military Department dispatched a memorandum to the applicant advising him that his OAB was being terminated because he was not eligible to receive the OAB due to his participating in the SLRP.  The applicant departed Afghanistan on 19 October 2011.

6.  On 13 January 2012, the NGB denied the applicant’s request to retain the OAB as an exception to policy and directed recoupment of his OAB.  The NGB advised the applicant to apply to this Board.  He was promoted to the rank of captain on 16 March 2012.

7.  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.  

8.  Title 37, U.S. Code, paragraph (f) of section 308j provides that a person may not simultaneously receive an accession bonus under that authority and financial assistance under Chapter 1609 (SLRP) of Title 10 U.S.C.

9.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It provides, in pertinent part, that the individual concerned must show that the collection of the debt will cause an injustice or hardship.

DISCUSSION AND CONCLUSIONS:

1.  There is no doubt that the applicant entered into an agreement for payment of an OAB; however, the agreement was not a valid agreement because, by law, he was not authorized payment of an OAB due to the fact that he was participating in the SLRP at the time.

2.  While it is indeed unfortunate that he was paid his OAB, he was not authorized to receive that payment.  Therefore, since there was no authorization to enter the applicant into a contract for which he was not authorized, it would not be appropriate to grant the applicant a benefit not afforded to others in similar circumstances.

3.  Furthermore, it would not be appropriate to allow him to keep the OAB  because he would be receiving a benefit not afforded to others and he has failed to show through the evidence submitted with his application and the evidence of record why he should not pay back the monies he was not entitled to receive in the first place.   

4.  While the actions of the Department in this matter are regrettable, the Department is entitled to receive any overpayments it makes to Soldiers in error just as a Soldier is entitled to payment when underpayments are made in error.

5.  Regretfully, there appears to be no basis for granting the applicant’s request to retain his OAB or cancellation of the debt that resulted from a flawed contract.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X ___  ___X____  ___X  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      __________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)                                         AR20120006346





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ABCMR Record of Proceedings (cont)                                         AR20120006346



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