BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20120020662 


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 cancellation of the recoupment of the first half of his Selected Reserve Incentive Program (SRIP) Officer Accession Bonus (OAB) and the payment of the second half of his OAB.

2.  The applicant states:

* he signed documentation for an OAB in 2008, but somehow the document "didn't come out" (i.e., was not published) until early 2009
* his bonus control number was allegedly requested at the end of 2009
* he received the first half of the OAB after completing the basic officer leadership course (BOLC) in 2009
* he did not receive the second half of his OAB as scheduled in December 2011  
* he should not penalized since it was the recruiter's fault that the documentation was completed incorrectly

3.  The applicant provides:

* his Written Agreement Officer/Warrant Officer Accession Bonus Addendum Acknowledgment, effective 1 March 2009
* two memoranda 



CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service, the applicant accepted appointment as a Reserve commissioned second lieutenant in the Nevada Army National Guard (NVARNG) Ordnance Branch (OD) on 19 December 2008.  A Service School Academic Evaluation Report shows he successfully completed the OD BOLC on 
1 September 2009.

2.  He submitted a Written Agreement Officer/Warrant Officer Accession Bonus Addendum Acknowledgment, effective 1 March 2009, which stated in connection with his agreement to accept an appointment as an officer serving in the Selected Reserve (SELRES) he acknowledged in paragraph 3 of the Addendum he would be paid an accession bonus as follows:

     a.  the bonus accrued beginning on the date the agreement was accepted by the Secretary of the Army;

     b.  the total amount of the bonus payable under the agreement became fixed upon acceptance of the written agreement by the Secretary of the Army; and

     c.  he was being accessed into the National Guard Bureau (NGB) approved critical skill of 91A (OD) and would receive a bonus of $10,000 to be paid in two installments.  The first 50 percent would be paid upon his successful completion of the BOLC.  The second 50 percent would be paid on the third anniversary of his agreement.

	d.  the Agreement, which was published on 1 March 2009, shows the:

		(1)  Signature of Service Representative and date:  is blank

		(2)  Signature of Service Member and date:  19 December 2008

		(3)  Typed name and grade of witnessing officer:  printed name and rank
		
		(4)  Signature and Date:  signed and dated 19 December 2008

		(5)  Bonus Control Number O09--------8NV

		(6)  Signed by the State Incentive Manager (IM) on 30 September 2009



3.  He submitted a memorandum from the NGB to the NVARNG, Attention State IM, dated 12 August 2012, Subject:  Request for Exception to Policy (ETP) for the OAB for "the applicant" which stated:

   a.  an ETP to retain the $10,000.00 OAB claimed to be offered at the time of commission on 19 December 2008 was denied.  The IM will terminate the incentive with recoupment.

   b.  in accordance with ARNG SELRES Incentive Program Guidance, effective 10 August 2007 to 28 February 2009, eligible applicants were offered the OAB.

   c.  The applicant {allegedly} accepted a commission into the NVARNG on 
19 December 2008 for a $10,000.00 OAB in the critical area of concentration “25A”.  He allegedly signed the OAB on 19 December 2008.  However, the edition of the OAB addendum that he signed was not published by the NGB until 1 March 2009.  Furthermore, the bonus control number was not requested until 
30 September 2009.  Therefore, the intent to offer the applicant an incentive at the time of commission cannot be validated and the incentive is to be terminated.

4.  He submitted a memorandum from the State of Nevada Office of the Military, Office of the Adjutant General, dated 3 October 2012, Subject:  Notification of Incentive Eligibility Termination.  The memorandum stated that discrepancies found in his incentive contract require eligibility termination of his $10,000.00 Officer accession bonus due to the bonus control number being requested after the bonus signature.

5.  Title 37, United States Code - Armed Forces, 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 subparagraph (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 (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.

6.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in section 0202 (Repayment and non-payment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member’s inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member’s control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member’s repayment of, or the Military Departments’s full payment of an unpaid portion of, a pay or benefits is appropriate based on one or more of the following:

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was appointed as an officer on 
19 December 2008.  Evidence indicates he was paid 50 percent of his accession bonus upon successful completion of OD BOLC on 1 September 2009 and would be paid the remaining 50 percent on the 3d year anniversary of his agreement.  

2.  The evidence of record clearly shows the applicant entered into a contract and received the first 50 percent of his accession bonus.  However, the Addendum, which was not published until 1 March 2009, would have not been available for use on 18 December 2008 nor was the BCN issued until 
30 September 2009.  There is insufficient evidence to show he signed an Addendum in 2008.

3.  Therefore, it would be appropriate to correct the applicant's military records to show he remains entitled to the first 50 percent of his accession bonus and any recoupment action should be cancelled but to forego the portion of the contract which stated that he would receive the second half of the accession bonus upon his attaining his 3d year anniversary.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__ _X___  ___X_____  ___X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State ARNG and Department of the Army records of the individual concerned be corrected by:

	a.  showing the appropriate authority approved a waiver of the bonus recoupment action, entitling the applicant to retain the first 50 percent of his enlistment bonus; and

	b.  repaying him all monies that may have been recouped relating to this enlistment bonus out of ARNG funds.
 
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to paying him the remaining 
50 percent of the accession bonus based upon his attaining his 3d year anniversary. 



      _________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)                                         AR20120020662





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ABCMR Record of Proceedings (cont)                                         AR20120020662



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