BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20120019177 


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 recoupment of her Officer Accession Bonus (OAB) be stopped.

2.  The applicant states:

* Her bonus should not be recouped because she did not leave the U.S. Army Reserve (USAR); she was placed in the Active Guard Reserve (AGR) as of 25 May 2012
* She also drilled and completed annual training during Fiscal Year 2012 until she was placed in the AGR program
* She never left the USAR; she is still in the AGR 

3.  The applicant provides:

* Self-authored memorandum
* Letter from the Defense Finance and Accounting Service (DFAS)
* AGR orders
* Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army and the USAR, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 3 October 2007.  
2.  In connection with her appointment, she appears to have executed a written agreement wherein she would have agreed to serve in the Selected Reserve for 6 years in a critical officer skill that is designated for bonus entitlement by the Secretary of the Army.  However, a copy of this agreement is neither available nor provided by the applicant.

3.  She entered active duty on 11 January 2009 and successfully completed the 6-week Basic Officer Leader Course as well as the 12-week Transportation Officer Basic Course.  She was honorably released from active duty on 29 May 2009. 

4.  She entered active duty for Contingency Operations – Active Duty Operational Support (CO-ADOS) on 15 July 2009 and she was honorably released from active duty on 12 August 2011.  

5.  On 15 May 2012, the U.S. Army Human Resources Command published orders ordering her to active duty in the AGR program effective 25 May 2012.  She was assigned to the U.S. Army Cadet Command, Fort Knox, KY.  

6.  On 17 September 2012, DFAS notified her that she was indebted to the U.S. Government as a result of recoupment of the unearned portion of her USAR bonus.  The amount of the debt is listed as $2,361.11.  

7.  In the processing of this case, on 31 December 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The G-1 advisory official recommended disapproval of the applicant's request.  The official stated:

	a.  In order to be eligible for the Selected Reserve (SELRES) OAB an individual in the USAR must meet the HQDA [Headquarters, Department of the Army] eligibility criteria published in All Army Activities (ALARACT) Message 017/2005, dated 26 January 2005, the bonus agreement, and the current USAR Selected Reserve Incentive Program (SRIP) announcement in effect on the date the individual makes application for officer appointment/training.  While a copy of the applicant’s bonus agreement is not available, the USAR SRIP in effect on the date she was commissioned indicates her area of concentration (AOC) 88A was eligible for the bonus.

	b.  The G-1 office contacted the Fort McCoy, WI Finance Office (DFAS-McCoy) to verify the bonuses and incentives that she is receiving, or received, as a Selected Reserve member.  DFAS-McCoy verified she received the SELRES OAB based upon her commissioning in an authorized AOC on 3 October 2007. DFAS-McCoy also identified the applicant as having received Student Loan Repayment Program (SLRP) payments in 2008 ($1194.60); 2009 ($1500.00); 2010 ($1500.00); 2011 ($1157.34); and 2012 ($961.49), based upon her contracting for the SLRP while still an enlisted member.  It was noted that the recoupment of the applicant's OAB was due to her entry into the AGR Program, which is a specified reason for termination and recoupment in the OAB agreement.

	c.  Section 308j of Title 37, U.S. Code, is the statutory authority for the SELRES OAB and prescribes eligibility criteria.  Paragraph (f) of section 308j indicates a person may not receive an accession bonus and financial assistance under chapter 1608, 1609, or 1611 of Title 10, or under section 302g of Title 37, for the same period of service.  These restrictions are also included in Department of Defense (DOD) guidance for the bonus (DOD Instruction 1205.21, Enclosure 15 and DOD Financial Management Regulation Volume 7A, Chapter 56, paragraph 560106, ALARACT Message 017/2005, and the bonus agreement that she signed.  Chapter 1609, Title 10 includes section 16301, which is the statutory authority for the SLRP.  Accordingly, it is unlawful for her to receive money for and serve the service obligation for the SLRP and the SELRES OAB simultaneously, and DFAS may recoup the full amount of the OAB.

	d.  Based upon the above, the Army G-1 recommends disapproval of her application.  She may not concurrently receive the SLRP incentive and the SELRES OAB.

8.  ALARACT Message 017/2005, dated 26 January 2005, provides implementation guidance for Selected Reserve officer accession and affiliation bonuses authorized by the Fiscal Year 2005 National Defense Authorization Act. The message states the OAB applies to newly-appointed commissioned and warrant officers who agree to serve in a Selected Reserve unit of the component in which appointed.  The message states that to be eligible for the bonus, individuals must not be accepting appointment as an officer for an AGR position.

9.  A copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

10.  Title 37, USC, section 308j (OAB for officers in the Selected Reserve) states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary (A) to 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.  The amount of a bonus under this section may be any amount not in excess of $10,000 that the Secretary concerned determines appropriate.  Upon acceptance of a written agreement by the Secretary concerned under this section, the total amount of the bonus payable under the agreement becomes fixed.  The agreement shall specify whether the bonus is to be paid in one lump sum or in installments.  A person entitled to a bonus under this section who is called or ordered to active duty shall be paid, during that period of active duty, any amount of the bonus that becomes payable to the member during that period of active duty.  A person may not receive an affiliation bonus or accession bonus under this section and financial assistance under chapter 1608, 1609, or 1611 of title 10, or under section 302g of this title, for the same period of service.  A person who, after receiving all or part of the bonus under an agreement entered into by that person under this section, does not accept a commission or an appointment as an officer or does not commence to participate or does not satisfactorily participate in the Selected Reserve for the total period of service specified in the agreement shall repay to the United States such compensation or benefit, except under conditions prescribed by the Secretary concerned.

11.  DOD Instruction 1205-21 requires, in relation to the written agreement of the officer accession bonus, the officer to acknowledge that he/she is not receiving financial assistance under chapter 1608, 1609, or 1611 of Title 10, USC, or special pay under section 302g of Title 37, USC, and will not receive such assistance during the period of the written agreement.

12.  DOD Financial Management Regulation, Volume 7A, chapter 56, states in paragraph 560106 that a person may not receive an affiliation or accession bonus and financial assistance under Title 37, USC, section 302g or chapters 1608, 1609, and/or 1611 of Title 10, USC.

DISCUSSION AND CONCLUSIONS:

1.  Although her written agreement is not available with this case, the evidence of record shows the applicant appears to have accepted an OAB in the amount of $10,000.00 upon her appointment in the USAR in October 2007.  Her bonus would have been contingent upon serving in the designated critical AOC and for the period specified in the agreement.  

2.  She entered active duty for CO-ADOS between 15 July 2009 and 12 August 2011 and she also transferred to the AGR program in May 2012.  Meanwhile, she also received SLRP payments in 2008 ($1194.60); 2009 ($1500.00); 2010 ($1500.00); 2011 ($1157.34); and 2012 ($961.49), based upon her contracting for SLRP while still an enlisted member.  

3.  The law prohibits receiving an accession bonus under and financial assistance under chapter 1608, 1609, or 1611 of Title 10, or under section 302g of Title 37.  Furthermore, her contract would have stipulated a loss of the bonus in the event she does not satisfactorily participate in the Selected Reserve for the total period of service specified in the agreement.  In other words, she breached her agreement.

4.  As a result of breaching her agreement, she was no longer entitled to a portion of the bonus for the unfulfilled portion of his agreement.  Accordingly, her unit/command notified DFAS-McCoy to initiate recoupment action against her.

5.  The applicant's current service as an AGR officer is a voluntary action and does not satisfy the requirements of her agreement.  She would have agreed to serve for a period of 6 years in the critical specialty in the USAR but did not do so.  Therefore, she should not be entitled to 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)                                         AR20120019177



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ABCMR Record of Proceedings (cont)                                         AR20120019177



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