IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120021502 


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 payment of his $10,000.00 Officer Accession Bonus (OAB).

2.  The applicant states he signed an OAB addendum for the area of concentration (AOC)/military occupational specialty (MOS) 153A (Rotary Wing Aviator) on 11 May 2010.  Upon returning from flight school in March 2012 and fulfilling all his contractual obligations, he inquired about receipt of his OAB.  After reviewing the contract, he noticed his OAB addendum had unauthorized administrative changes which adjusted his MOS from 153A to 153D (UH-60 Pilot).  His training officer assured him that MOS 153D was a critical skill and he should submit a request for an exception to policy (ETP) for the falsified contract. 
After submitting the request for an ETP, he was denied the OAB because MOS 153D was not a critical skill MOS eligible for a bonus at the time.  Next he contacted his State Incentive Manager who recommended he contact the G-1.  He contacted the G-1 and was told his correct OAB addendum would be resubmitted.  However, the G-1 did not resubmit his original OAB addendum; instead he was sent an email stating he should apply to the Army Board for Correction of Military Records.  He argues:

* his contract was unjustly and illegally altered without his consent or knowledge
* MOS 153A was a critical skill eligible for an OAB at the time his signed the OAB addendum
* he has honorably fulfilled his obligations as stated in the OAB addendum without falter
* he did not voluntarily transfer out of the critical skill for which the bonus was approved

3.  The applicant provides:

* original Written Agreement – Officer/Warrant Officer Accession Bonus Addendum Acknowledgement, dated 11 May 2010
* altered Written Agreement – Officer/Warrant Officer Accession Bonus Addendum Acknowledgement, dated 3 August 2010
* National Guard Bureau (NGB) memoranda, dated 27 August 2010 and 9 July 2012
* DA Form 1059 (Service School Academic Evaluation Report), dated 27 February 2012
* DA Forms 2823 (Sworn Statement), dated 10 June 2012 and 6 December 2012
* DA Forms 4187 (Personnel Action), dated 10 August 2012 and 6 December 2012
* various email correspondence

CONSIDERATION OF EVIDENCE:

1.  After having previous enlisted service in the South Carolina Army National Guard (SCARNG), the applicant completed an NGB Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer (WO) and Appointment as a Reserve Commissioned Officer or WO of the Army in the ARNG of the United States), dated 28 April 2010, showing he requested Federal recognition and appointment as a Reserve officer of the ARNG in the grade/branch of WO1/153A.  This form also shows he was to be assigned to:

* Company A, 2nd Battalion, 149th Aviation Regiment, Eastover, SC
* unit identification code (UIC) WQRYA0
* paragraph number (PARA) 202, line number (LINE) 01
* MOS 153D

2.  An NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 11 May 2010, shows he was directed to report for examination as an MOS 001A (Unqualified in Authorized WO MOS)/153A to determine his qualifications for Federal recognition in MOS 001A/153A.  The board found him fully qualified and assigned him to UIC WQRYA0, PARA 202, LINE 02, in duty position UH-60 Pilot.

3.  He graduated from the U.S. Army Warrant Officer Candidate School on 3 August 2010 and he was appointed as a Reserve WO and granted Federal recognition in the SCARNG on 3 August 2010.

4.  SCARNG Orders 215-828, dated 3 August 2010, appointed him as a WO1 in MOS 001A.  Additionally, he was assigned to:

* Company A, 2nd Battalion, 149th Aviation Regiment, Eastover, SC
* UIC WQRYA0
* PARA 202/LINE 01
* MOS 153D

5.  He attended the Initial Entry Rotary Wing (IERW)/UH-60) Course from 3 August 2010 to 8 March 2012 and achieved course standards.  His MOS is listed as 153D.

6.  SCARNG Orders 195-844, dated 13 July 2012, changed his MOS to 153D effective 3 August 2012.

7.  He provided an OAB addendum containing a bonus control number, dated 11 May 2010, which shows:

	a.  He agreed to serve in the Selected Reserve in the critical skill AOC/MOS 153A designated for bonus entitlement, to complete the Basic Officer Leadership Course (BOLC III) within 36 months of his appointment, to serve in the Selected Reserve for 6 years in his critical skill AOC/MOS, and to serve satisfactorily for the complete period designated in his written OAB agreement in the critical skill in which accessed unless excused for the convenience of the government.

	b.  His OAB addendum also stated that his OAB would accrue beginning on the date the OAB addendum was accepted by the Secretary of the Army, the total amount of the bonus payable under the agreement becomes fixed upon acceptance of this written agreement by the Secretary of the Army, and he was being accessed into the NGB-approved critical skill MOS 153A and would receive a bonus of $10,000.00 paid in two installments:

* the first 50-percent installment would be processed upon completion of BOLC III and qualification in his critical skill
* the second and final payment of 50 percent would be processed on the third-year anniversary of his OAB addendum agreement

	c.  His OAB addendum contains the typed MOS 153A throughout the addendum.  Additionally, under the authentication portion of the OAB addendum:

* the signature of the service representative is missing
* the applicant signed and dated the form on 11 May 2010
* the witnessing officer signed the wrong block
* the date "11 May 2010" is entered in the witnessing officer's signature block
* a bonus control number was entered

8.  He provided an altered OAB addendum, dated 3 August 2010.  The information contained within the altered addendum is similar to the OAB addendum, dated 11 May 2010, with the following exceptions:

* the critical skill MOS is handwritten and listed as 153D
* the signature of the service representative is present and dated 3 August 2010
* the applicant signed and dated the form on 3 August 2010
* the witnessing officer signed the wrong block
* the date "3 May 2010" is entered in the witnessing officer's signature block

9.  He provided a memorandum from NGB, dated 27 August 2010, subject:  Update of the Officer Accession Critical Skill List, which states:

	a.  "Warrant Officer Military Occupational Specialty (MOS) 153A (Rotary Wing Aviation) is a general MOS that at time of commission and contract for incentive may not be the MOS held by the officer after completion of Warrant Officer Basic Course (WOBC).  Personnel know in advance which aircraft they are assigned based upon State force structure.  Contractual requirement for a critical skill bonus for officers is a six year commitment that requires the officer to remain in that MOS for the term of service agreement."

	b.  "MOS 153A is removed from the critical skill list, effective the date of this message.  Any Warrant Officer contracted for an Officer Accession incentive for MOS 153A but not in a 153A para/line duty position and/or who did not retain the 153A MOS after completion of Initial Entry Rotor Wing Flight School (IERW) require submission of exception to policy for review."

10.  An advisory opinion was obtained from NGB, dated 15 March 2012, wherein the Chief, Personnel Policy Division, states:

	a.  The applicant signed an OAB addendum for MOS 153A on 11 May 2010.  After completing flight school he inquired about his OAB with the SCARNG.  He noticed the contract he submitted had handwritten administrative changes to reflect his MOS as 153D instead of 153A.  He was informed by his training officer at the time that MOS 153D was a critical skill, but recommended he submit a request for an ETP for the falsified contract.  In a memorandum, dated 9 July 2012, the applicant was denied an ETP by NGB and was informed that his State would be terminating his incentive without recoupment.

	b.  When the applicant signed his OAB addendum on 11 May 2010, he initialed next to the typed critical skill MOS 153A entry and was given a bonus control number with signature.  The applicant argues that the addendum submitted is not the one he actually signed.  There is another OAB addendum in his case file that shows him being placed in the critical skill MOS of 153D.  However, the MOS 153D entry is handwritten and dated 3 August 2010 with the same bonus control number.

	c.  On 27 August 2010, NGB published an update to the Officer Accession Critical Skill List stating that MOS 153A was no longer considered a critical skill.  Paragraph 4 states, "MOS 153A is removed from the critical skill list, effective the date of this message.  Any Warrant Officer contracted for an Officer Accession incentive for MOS 153A but not in a 153A para/line duty position and/or who did not retain the 153A MOS after completion of Initial Entry Rotor Wing Flight School (IERW) require submission of exception to policy for review."  This update occurred after the applicant signed his addendum.

	d.  The applicant attended IERW/UH-60 training from 3 August 2010 to 8 March 2012 as indicated on his DA Form 1059.  According to NGB Incentives through email correspondence, dated 5 November 2010, the applicant was appointed by SCARNG Orders 215-828 to an MOS 153D position and not an MOS 153A position.  The first page of his NGB Form 62E shows he applied for Federal recognition to an MOS 153A position.  However, page 4 of this form appointed him in an MOS 153D position.  Additionally, his NGB Form 89 lists his MOS as 153A, but places him in an MOS 153D position/vacancy on the same page.

	e.  It is understandable how the applicant could be confused about why he is not eligible to receive the OAB.  There are discrepancies throughout his application for Federal recognition and on his written OAB addendum.  The bottom line is that his Federal recognition application has both critical skills listed. 
The altered OAB addendum specifies 153D as the MOS and the original OAB addendum specifies 153A as the MOS.  It is not the applicant's responsibility to process his paperwork for assessment.  The applicant did what he was told and had no control over which position the State was placing him in.  The applicant assumed he was being placed in an MOS 153A critical skill position and should not be penalized for errors that occurred within the State.  Therefore, withholding payment of this incentive would be contrary to equity and good conscience.  NGB recommended granting the applicant full administrative relief in this case.

11.  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.  serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.

		(1)  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.

		(2)  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.

		(3)  Paragraph (2)(b) further 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.

12.  Army Regulation 135-7 (Incentive Programs) establishes a single reference for incentives authorized within the ARNG and the Army Reserve.  Paragraph 1-7 states that Selected Reserve incentives will be offered in designated units and selected skills only when a valid position vacancy exists.  Valid position vacancies are either current or projected from the unit's organization tables.  These tables include tables of organization and equipment, tables of distribution and allowances (TDA), modification table of organization and equipment, and modification TDA.

13.  An extract from the U.S. Army WO Recruiting website lists the prerequisites and duty description for MOS 153A.  It states that 153A is an accession MOS used to feed into an armed reconnaissance, attack, utility, or cargo helicopter MOS.

14.  As described on the U.S. Army Aviation Center of Excellence and Fort Rucker website, the traditional initial entry rotary wing flight training model is 32 weeks and consists of four phases.

	a.  The first phase consists of 2 weeks of preflight instruction, providing the students with knowledge of basic flight control relationships, aerodynamics, weather, and start-up procedures.

	b.  The second phase consists of 10 weeks and 60 flight hours in the Training Helicopter (TH)-67.

	c.  The third phase is 8 weeks of instrument training, including 30 hours in the simulator on the main post and 20 hours in the TH-67.

	d.  The fourth phase of training is the combat skills and dual-track phase.  It is combat-mission oriented and trains the student pilot as an aero-scout helicopter pilot. Upon graduation, the students will have accumulated 179 hours of flight instruction, comprised of 149 hours in an aircraft and 30 hours in a simulator.

	e.  The advanced graduate flight training is specialized training where students become qualified in their specialized MOS, such as UH-60.  Courses for specialized MOS's range between 14 and 23 weeks of training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant applied for Federal recognition in MOS 153A in April 2010 and executed an OAB addendum for that MOS on 11 May 2010.  At the time this MOS was authorized a $10,000.00 OAB.

2.  He was Federally recognized as a 001A/153A but assigned to an MOS 153D position on his unit's TDA.  The advisory opinion indicated this was a mistake; however, his assignment to an MOS 153D position was appropriate.

3.  MOS 153A is a feeder MOS into an armed reconnaissance, attack, utility, or cargo helicopter MOS.  Once a WO graduates from flight school, he or she will automatically be reclassified into a new MOS, as was the case with the applicant's assignment and reclassification in MOS 153D.

4.  The NGB memorandum, dated 27 August 2010, clearly shows NGB realized the mistake in listing MOS 153A as an MOS eligible for a critical skill bonus.  No WO would ever be able to maintain this MOS – those currently holding the MOS would be forced to reclassify to a new MOS after completing flight training, such as MOS 153D in applicant's case, which was not authorized for an OAB.
5.  There are two OAB addenda:  one showing MOS 153A, dated 11 May 2010, and the other with unauthorized administrative changes showing MOS 153D, dated 3 August 2010.  However, based on his application for Federal recognition, the Proceedings of the Federal Recognition Examining Board, and his initial OAB addendum, it is clear that he intended to serve in and believed he would hold MOS 153A.  As such, the OAB addendum, dated 3 August 2010, should be deleted from his record and replaced with the OAB addendum, dated 11 May 2010.

6.  Since he initially contracted for a bonus in MOS 153A on 11 May 2010 and started flight school on 3 August 2010 prior to the NGB memorandum rescinding this bonus, dated 27 August 2010, and he completed his contractual obligation in good faith, it would serve the interest of equity and justice to correct his records to show he qualified for payment of an OAB in the amount of $10,000.00.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* delete the Written Agreement – Officer/Warrant Officer Accession Bonus Addendum Acknowledgement, dated 3 August 2010, from his records and replacing it with the Written Agreement – Officer/Warrant Officer Accession Bonus Addendum Acknowledgement, dated 11 May 2010
* amend his Written Agreement – Officer/Warrant Officer Accession Bonus Addendum Acknowledgement, dated 11 May 2010, to show he is eligible for payment of the bonus in accordance with the terms of his written agreement because MOS 153D was a natural and unavoidable progression from MOS 153A

* paying the applicant both installments of the bonus as specified in his written agreement from ARNG funds



      _____________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)                                         AR20120021502



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ABCMR Record of Proceedings (cont)                                         AR20120021502



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