IN THE CASE OF:
BOARD DATE: 28 November 2012
DOCKET NUMBER: AR20120009111
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 remission/cancellation of his debt established based on recoupment of an Officer Accession Bonus (OAB).
2. The applicant states she was informed 5 years after the fact that she did not qualify for a bonus she had already received, and her exception to policy request was denied. She claims she was never aware of the disqualifying factors and she was assured by her recruiter that she would receive the bonus.
3. The applicant provides the documents identified in item 9 (In support of this application, I submit as evidence the following documents) of her application.
CONSIDERATION OF EVIDENCE:
1. The record shows that after serving in the Army National Guard in an enlisted status between 2003 and 2006, the applicant was appointed a Reserve Commissioned Officer in the rank of second lieutenant (2LT) on 12 October 2006.
2. The applicant provides a Written Agreement OAB Addendum that was completed by the applicant and a service representative. Paragraph 2 of the agreement contains the obligations incurred by the applicant in connection with her agreement to accept an appointment as an officer serving in the Selected Reserve.
3. On 21 March 2012, the applicant submitted an exception to policy request in which she asked to retain the $10,000.00 OAB payment she received. She explained she was unaware that receiving Student Loan Repayment Program (SLRP) benefits disqualified her from receiving the bonus.
4. On 16 April 2012, the National Guard Bureau (NGB), Deputy Chief of Staff,
G-1, denied the applicant an exception to policy request stating she was ineligible for the bonus based on receipt of SLRP benefits.
5. Title 37 of the U.S. 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.
6. 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 members control.
7. 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 applicants request to retain the $10,000.00 OAB payment she has already received has been carefully considered and found to have merit.
2. Although the governing law clearly prohibits payment of both an OAB and loan repayment program benefits for the same period of service, 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.
3. 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 her own. Therefore, it would be appropriate to correct the record to show remission/cancellation of the applicants OAB debt 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:
____X___ ____X___ ___X__ _ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 showing a remission/cancellation of her $10,000.00 debt related to the payment of the OAB incentive was approved by the appropriate authority.
_______ _ 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.
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