IN THE CASE OF:	  

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20120008773 


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 he be permitted to keep his Officer Accession Bonus (OAB).  He requests a personal appearance hearing before the Board.

2.  With prior enlisted service in the New York Army National Guard (NYARNG), the applicant states he contracted to accept a commission as a second lieutenant (2LT) in return for a $10,000 OAB.  At the time of his appointment, he was already participating in the Student Loan Repayment Program (SLRP).  Both the OAB and the SLRP were paid; however, he has since been notified he does not qualify for the OAB and the payment will be recouped.  The applicant contends:

* he had a contract which was honored by both parties
* he did nothing wrong and should be allowed to keep the OAB; the Army made the error
* in accepting his commission, he incurred monetary and time losses when he was activated for training
* paying back the OAB would impose a hardship on him and his family

3.  The applicant provides:

* OAB Addendum, dated 26 September 2008
* DA Form 71 (Oath of Office), dated 26 September 2008
* National Guard Bureau (NGB) Form 337 (Oaths of Office), dated            26 September 2008


* Memorandum, Director, Military Personnel, Headquarters, NYARNG, Watervliet, NY, dated 8 March 2012
* Memorandum, Deputy G1, Army National Guard, NGB, Arlington, VA, dated 17 January 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  As an enlisted Soldier, the applicant signed an SLRP addendum on 26 July 2007 for $20,000 in loan repayments.

3.  On 26 September 2008, the applicant accepted a Reserve commission as a 2LT in the NYARNG and signed his OAB addendum at the time of his appointment.  The addendum shows he would receive a bonus of $10,000 paid in a lump sum upon successful completion of the Officer Basic Course.

4.  The applicant's OAB addendum also contained the following statement:

	"I am not currently receiving financial assistance under chapters 1608, 1609, or 1611 of Title 10, U.S. Code, or special pay under section 302g of Title 37, U.S. Code, and will not receive such assistance during the period of this agreement."

5.  He completed the Military Intelligence (MI) Basic Officer Leadership Course (BOLC) on 23 July 2009.

6.  He provides a 17 January 2012 memorandum from the Deputy G1, NGB, Arlington, VA to the NYARNG State Incentive Manager which shows a request for an exception to policy for him to retain the OAB was denied.  The memorandum also states:

   a.  The State Incentive Manager will terminate the incentive with recoupment.
    b. In accordance with Army National Guard Selected Reserve Incentive Program Guidance 07-06, effective 10 August 2007 through 28 February 2009, eligible applicants were offered an OAB.

   c. The applicant was not eligible to receive the OAB in accordance with Title 37, U.S. Code, chapter 5, section 308j.  

   d. The applicant had an active SLRP contract at the time of contracting for the OAB which was in violation of the law referenced above and he is not eligible to retain the $10,000 OAB.

7.  The SLRP falls under Title 10, U.S. Code, chapter 1609.

8.  Title 37, U.S. Code, chapter 5, section 308j states that a service member may not contract for an OAB if he or she is receiving financial assistance under chapters 1608, 1609, or 1611 of Title 10, or under section 302g of Title 37, for the same period of service.  

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director, ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for retention of his OAB and a personal appearance hearing was carefully considered.

2.  Records show he signed an SLRP agreement on 26 July 2007 and an OAB addendum on 26 September 2008.  He clearly did not meet the criteria for award of an OAB, which was outlined on the OAB.   

3.  Since by law he cannot receive both a bonus and SLRP, recoupment action is justified.  

4.  Although the applicant requested to personally appear before the Board, it was determined that there was sufficient evidence available for a fair and impartial consideration of his case.

5.  In view of the foregoing, there is no basis to grant 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 that 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)                                         AR20120008773



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ABCMR Record of Proceedings (cont)                                         AR20120008773



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