IN THE CASE OF:	  

		BOARD DATE:	    6 August 2013

		DOCKET NUMBER:  AR20120018882 


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 of $10,000.00.

2.  The applicant states, in effect, he is facing recoupment of a $10,000.00 OAB that he received in 2008 due to a determination by the National Guard Bureau (NGB) 5 years after the fact that he was ineligible to receive the bonus because he was receiving funds from a Reserve Officers' Training Corps (ROTC) scholarship contract.  However, this is a false assertion because he did not receive funds past 4 May 2007 and the bonus contract was signed on 5 May 2007.  He continues by stating he was commissioned in the Army National Guard (ARNG) on 5 May 2007 and it was at that time he was made aware he was eligible for a $10,000.00 OAB upon completing his officer basic course and he signed the agreement based on counsel provided by ARNG officials at the time.  He also states he was paid the OAB in March 2008 after he completed his training in November 2007 and on 20 March 2012 he was notified he was not eligible to receive the bonus.  He continues by stating he requested an exception to policy (ETP) from the NGB but it was denied because his ROTC contract did not end until 15 May 2007.  Additionally, it should be noted the State Incentive Manager reviewed the contract and agreed he was eligible at the time.

3.  The applicant provides a list of supporting documents with his application.


CONSIDERATION OF EVIDENCE:

1.  After serving in the U.S. Army Reserve, the applicant enlisted in the Nebraska Army National Guard (NEARNG) on 26 July 2005 for a period of 5 years.  On
15 September 2005, he entered into an ROTC Scholarship Program for a period of 2 years for the period covering 22 May 2005 to 15 May 2007.  His Cadet Agreement stated, in Part II (Agreement of Scholarship Cadet Contracting in the Senior ROTC Program), paragraph 4a (Cadet Agreements Upon Program Completion, Acceptance of Appointment), that he agreed to accept an appointment, if offered, as a commissioned officer in the U.S. Army Reserve or Army National Guard of the United States, in accordance with governing Army regulations.  

2.  On 5 May 2007, he was commissioned as an armor branch second lieutenant in the NEARNG and on the same date he entered into an OAB agreement in the amount of $10,000.  He completed his training on 8 November 2007.

3.  On 11 April 2008, he completed an interstate transfer to the Kansas Army National Guard (KSARNG).

4.  He was promoted to the rank of first lieutenant on 5 November 2008 and he served a deployment to Djibouti/Uganda during the period 10 June 2010 to
2 July 2011.

5.  On 3 April 2012, officials at the KSARNG dispatched a memorandum to the NGB informing officials at the NGB that an audit of the applicant’s official records showed he was ineligible to receive his OAB because he was under an ROTC Scholarship contract and because the addendum used was out of date.  Additionally, he had been transferred out of his critical specialty for a period of
5 months.  KSARNG official opined that the errors were through no fault of the applicant and requested an exception to policy be granted and that the applicant be allowed to retain the OAB.

6.  On 15 May 2012, officials at the NGB denied the request for an ETP and directed the bonus be recouped.  The denial was based on Army National Guard Selected Reserve Incentive Program Guidance 07-04 (effective 1 January 2007 to 15 June 2007) that provided only eligible applicants were offered the OAB and that the applicant was ineligible for additional incentives until he completed his ROTC scholarship service obligation.  The NGB advised the applicant to apply to this Board.  He was promoted to the rank of captain on 28 June 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 Title 10, U.S. Code, Chapter 1611 (ROTC).

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 still under a ROTC contract at the time and had a service remaining obligation to serve in the Reserve Components.

2.  While it is indeed unfortunate that he was paid his OAB, he was not authorized to receive that payment.  An OAB is offered as an incentive to encourage individuals to accept an appointment as an officer in the Armed Forces.  The applicant did not need that incentive (and the law prohibited it) because he had already contracted to accept an appointment as an officer in the Armed Forces when he accepted his ROTC scholarship.  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:

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)                                         AR20120018882



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ABCMR Record of Proceedings (cont)                                         AR20120018882



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