IN THE CASE OF:	

		BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130007094 


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 his Selected Reserve Incentive Program (SRIP) Officer Accession Bonus (OAB) Addendum be changed to show it was completed when he was commissioned on 20 August 2005.  He also requests that he be allowed to retain the $4,000.00 difference between the 2005 OAB and 2008 OAB.  In the alternate, he requests this Board change his records so he can keep the entire $10,000 bonus he received.

2.  The applicant states:

	a.  a California Army National Guard (CAARNG) audit first made him aware that he was not eligible for an OAB because he did not sign the OAB addendum on 20 August 2005, the day he was commissioned.

	b.  when he was commissioned, he was unaware he was eligible for an OAB. However, when he returned from Iraq in January 2008, he was told he was eligible to receive an OAB.  Instead he focused on his upcoming deployment to Kosovo in June 2008.

	c.  he does not recall receiving or signing an OAB Addendum, although he may have signed one during his mobilization or during his first or second month in Kosovo.

	d.  the incentive task force audit states that while he was eligible to receive the OAB when he was commissioned, the amount would have been $6,000.00.  He received his OAB in 2008, when the amount was $10,000.00.
	e.  he should not be penalized since the CAARNG Incentive Manager (IM) approved and paid him the OAB. 
 
	f.  he has deployed twice, completed specialized training, and is currently assigned to the Special Forces Group.  Therefore, he has fulfilled his part of the bargain to serve his country.

3.  The applicant provides:

* a self-authored statement
* a National Guard Bureau Form 337 (Oath of Office)
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three emails
* four pages of his checking statement
* his Written Agreement Officer/Warrant OAB Addendum Acknowledgment, effective 21 March 2008
* three pages of Policy Number 07-06
* an internet article from the Federal Bureau of Investigation (FBI)
* four memoranda

CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service, on 20 August 2005 the applicant accepted appointment as a CAARNG officer and was granted federal recognition as a second lieutenant (2LT) on the same date.  

2.  He submitted:

	a.  his DD Form 214 which shows he was ordered to active duty during the period 6 March to 12 July 2006 for the purpose of attending the 35D All Source Intelligence Course.

	b.  three emails, dated from 19 May to 29 June 2008, between Master Sergeant (MSG) J, the IM; 2LT B; and the applicant indicating he should sign the addendum for the OAB.

	c.  three pages of his 17-page checking statement which show the following deposits from the Defense Finance Accounting Service between 6 June and 
7 September 2008:

* 13 June			$3,357.81
* 27 June 			  $308.00
* 3 July				$3,587.17
* 15 July			$3,368.07
* 18 July	 		$3,450.00
* 23 July			$3,450.00
* 1 August			$6,148.61
* 15 August		$3,568.08
* 22 August	 	   $306.00
* 25 August		$4,016.77
* 15 September	$3,568.06
* 24 September	   $306.00
* 1 October			$4,016.77

	d.  his Written Agreement OAB Addendum Acknowledgment, effective 
21 March 2008, 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:

		(1)  the bonus accrued beginning on the date the agreement was accepted by the Secretary of the Army;

		(2)  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

		(3)  he initialed that he was being accessed into the ARNG approved critical Unit Identification Code (is blank) and shall receive a bonus of $10,000.00 in one lump sum upon his completion of Officer Basic Course (OBC), or 

		(4)  he was being accessed into a modification table of organization and equipment unit that is not identified as an ARNG critical UIC.  He would receive a bonus of $10,000 to be paid in two 50 percent installments.  The first 50 percent would be paid upon his successful completion of OBC.  The second 50 percent would be paid on the third anniversary of his agreement.

		(5)  the agreement, which was published on 21 March 2008, shows the:

 * Signature of Service Representative and date:  is signed
 * Signature of Service Member and date:  is blank
 * Typed name and grade of witnessing officer:  printed name and rank
 * Signature and Date:  signed and dated 21 March 2008
 * Bonus Control Number is blank

   e.  the ARNG SELRES Incentive Program Guidance, effective 10 August 2007 to 30 September 2009, which shows that eligible applicants who were offered the OAB must have never held a commission as an officer in any of the armed forces of the United States.

   f.  an article from the FBI, Los Angeles Division, dated 11 July 2011, which stated that the former CAARNG's bonus and IM, MSG J, signed a plea agreement admitting she submitted over $15 million dollars in false claims.

	g.  an Incentive Task Force Bonus Audit form, dated 13 June 2012, which shows:

		(1)  the applicant was not eligible to contract for a bonus.

		(2)  he was paid $5,000.00 on 18 July 2008 and $5,000.00 on Account Processing Code 18G611, which is the code for a reenlistment bonus or a manual payment.  He was appointed as a 2LT on 20 August 2005.  He has no written contracts in IPerms.  He was not eligible for any bonus other than an officer bonus that would have had have to been signed at the time of his appointment.  There is email traffic through MSG J about the applicant trying to get him a bonus in May 2008.  That was 2 years after his appointment.  2LT B then gets documents signed and sent via email to MSG J on 28 May 2008.  The written agreement for the OAB appears to be signed on 23 May 2008.  Applicant should have never been eligible for this after his appointment date of 20 August 2005.  Even in 2005, the applicant would have only been authorized the minimum limit at the time per law of $6,000.  Due to the applicant's connections with the IM and 2LT B and the fact it was over 2 years after the appointment that was a written agreement, the auditor recommended settlement category 4 and stated:

* [bonus] subject to recoupment:  Yes
* Major references:  ARNG SRIP 0706 (10 August 2007 to 
28 February 2009
* Recoupment Amount:  $10,000.00

		(3)  the auditor's and reviewer's applicable settlement category recommendation:  Erroneous pay or entitlement that shows fraud, submission of false claim, or antitrust violations.  Subject to Department of Justice and Staff Judge Advocate investigations and penalties.  

		(4)  Senior Reviewer Summary Memorandum stated the applicant was appointed as a 2LT on 20 August 2005 into UIC WPJB0.  He became area of concentration qualified on 12 July 2006 and interstate transferred to Utah on 
29 May 2009 into UIC WTN6C0.  On behalf of applicant, 2LT B solicited payments for an OAB around 29 June 2008.  Previous IM had 2LT B having the applicant sign and fill out the documents and then return the documents to
MSG J.  The applicant's addendum is signed with the date 23 March 2008.  In order to be eligible for this incentive, the applicant would have needed to sign the contract on the day he was appointed as a 2LT.  At the time of appointment the maximum payment for an OAB by law was only $6,000.00 and he received $10,000.00.  The applicant is subject to full recoupment of $10,000.00 for not signing a valid contract at the time of appointment.  Settlement category 4:  The applicant may not have demonstrated any fraud in this case; however, he should still be investigated as well as 2LT B for solicitation of erroneous payments.  

	h.  a memorandum from Headquarters, CAARNG, dated 14 March 2013, Subject:  Army Board for Corrections Appeal [the applicant], which stated:  

		(1)  that an Incentives Task Force audited the applicant and discovered the OAB addendum was completed after he was appointed as a 2LT.  There is no evidence of fraud on the part of the Soldier.  He is now requesting relief from recoupment and his addendum be changed to reflect his correct commissioning date.

		(2)  the applicant was commissioned on 20 August 2005.  At that time, he was eligible for an OAB not to exceed $6,000.00 in accordance with Title 37 U.S. Code 308j(d).  To receive the bonus, he should have completed a contract at the time of commissioning in accordance with Title 37 U.S. Code 332, paragraph (d).  SRIP Policy 05-04 that covered August 2005 requires the officer to agree to serve for 6 years in an active drilling status in a critical officer skill and that the payment would be paid in one lump sum upon completion of his OBC (which must be completed within 36 months of his date of appointment).

		(3)  the applicant completed his OAB as a 35D (a critical skill) on 12 July 2006, within the 36-month window.  He completed the bonus addendum on or about 21 May 2008, over 2 years after his appointment.  The OAB was for $10,000.00; $4,000.00 over the statutory limits for FY05.  He was then paid $5,000.00 on 18 July 2008 and another $5,000.00 on 23 July 2008.  The OAB addendum that was eventually signed by the applicant was published on 
10 August 2007 and did not have a bonus control number.  The terms in the contract do not reflect the terms of OABs in FY05.
	
		(4)  to be eligible for the $6,000.00 a properly-executed OAB addendum was required at the time of appointment.  To keep the remaining $4,000.00 the applicant need to be relieved of the recoupment.

	i.  a memorandum from Legal Assistance, CAARNG, dated 15 March 2013, Subject:  ABCMR Appeal for [the applicant], which states:

		(1)  the applicant was fully eligible for an OAB when he was commissioned on 20 August 2005.  However, he was not offered an OAB and was otherwise unaware he was eligible to receive an OAB. 

		(2)  he was approached by 2LT B who reached out to MSG J, the CAARNG IM, to obtain an OAB for the applicant.

		(3)  MSG J (the CAARNG IM) is currently in prison for giving out fraudulent incentives.  She pled guilty to over $15 million of fraudulent incentives from 2007-2009.  The applicant's OAB was signed on 21 May 2008 and paid out in two $5000.00 installments on 18 and 23 July 2008.  The dates of signing the OAB and payment are within the timeframe that MSG J pled guilty to paying out fraudulent incentives.

		(4)  The applicant had no knowledge that he was not entitled to a $10,000.00 OAB.  Nor should he have known.  He relied, as many Soldiers did and rightfully so, on the subject matter expertise of MSG J, the CAARNG State IM, and as such the expert on incentives in the state. 

		(5)  There were three parties in this scenario: MSG J, LT B, and the applicant.  The least culpable party is the applicant.  MSG J is in prison for giving out bonuses such as this one.  LT B solicited the fraudulent OAB.  The applicant simply received the bonus that he was told he was entitled to.  

		(6)  It is his opinion that justice dictates the applicant keep the entire $10,000.00 OAB for the aforementioned reasons.  The legal assistance officer asked, on behalf of the applicant, this Board apply the rules governing OABs in 2008 which would permit a $10,000.00 OAB.  In the alternate, he asks on behalf of the applicant that this Board make any other changes the Board sees fit so the applicant can retain his entire $10,000.00 OAB.

3.  During the processing of this case, an advisory opinion was rendered by the Chief of the Personnel Policy Division, National Guard Bureau.  She recommended the action be returned without action and stated:

	a.  according to the case documents, the applicant was commissioned on 
20 August 2005.  He states that at the time, he did not sign an OAB addendum or was even aware that he was eligible to receive an OAB.  He did not learn that he might have been eligible for an OAB until 2008, and has provided a signed OAB addendum, dated 21 May 2008, for a $10,000.00 bonus.  Per the applicant, he received two payments in the summer of 2008 while deployed in Kosovo.  The issue is that the OAB he was awarded was not authorized for his commissioning year.  

	b.  The applicant has not exhausted all resources in order to resolve his request.  CAARNG should [have] requested an exception to policy (ETP), prior to requesting Army Board for Correction of Military Records (ABCMR) action.  However, because the incentive was signed 12 months after the commissioning date, NGB does not have the authority to grant an ETP.  This request should be directed to Headquarters, Department of the Army based on the memorandum, dated 1 February 2012, from Headquarters, Department of the Army.  Per Army Regulation 15-185 (ABCMR) paragraph 2-5, the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  

4.  ARNG SRIP Policy Guide for FY 07, 08, 09, and 10 stated, in pertinent part, to qualify for an OAB the officer must sign the OAB Addendum on the date they accept their commission as a 2LT or appointment as a warrant officer and the Addendum must contain a bonus control number.  The State IM will verify accession packets as prescribed by State policy for bonus control numbers, accuracy of the enlistment contract, bonus addendum, critical skill, bonus unit eligibility, valid position vacancy, and required educational level.

5.  Title 37, U.S. Code, section 308j(b), provides the legal authority to provide an accession bonus to officers in the Selected Reserve.  It states the Secretary concerned may pay an accession bonus under this section to an eligible officer in any of the Armed Forces who enters into an agreement with the Secretary to accept an appointment as an officer of the armed forces and serve for the period specified in the agreement in the Selected Reserve of the Ready Reserve of an Armed Force under the Secretary's jurisdiction in a critical officer skill.  It further states that 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.

6.  The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864 (1977), concerning military reenlistment bonuses does not alter fundamental rules of law that (1) a service member's entitlement to military pay is governed by statute rather than ordinary contract principles and (2) in the absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents; hence the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can the bonus amount be established through private negotiation or contract between the member and his recruiter.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and he did not submit any evidence which shows he executed a written agreement regarding a bonus when he was commissioned on 20 August 2005.  He acknowledges that he was unaware that he was eligible for an OAB, yet he accepted appointment in the armed forces anyway.

2.  Although he may have complied with the terms of his contract, he was neither offered the bonus nor agreed in writing to the stipulations associated with such bonus at the time he was appointed, and it appears he did not need the incentive of an OAB to accept appointment.

3.  On 28 June 2008, 2 years after he was commissioned, he completed a Written Agreement - OAB Bonus Addendum for a $10,000.00 OAB wherein he acknowledged the eligibility, suspension, termination and recoupment terms contained within this incentive program.  

4.  However, he was not eligible for or entitled to receive an OAB bonus at this late date.  Simply by reading the terms of the addendum, in which he acknowledged that in connection with his agreement to accept an appointment as an officer serving in the SELRES, he should have realized that he was not eligible for the OAB notwithstanding what the “experts” told him.  He was not accepting appointment in June 2008 – by June 2008 he had already been an officer for almost 2 years.

5.  The OAB is incentives to induce a non-prior service individual to enter the armed forces.  It appears the applicant did not need the incentive to accept appointment.  Therefore, he is not entitled have his Addendum changed to show it was completed when he was commissioned on 20 August 2005, to be allowed to retain the $4,000.00 difference between the amounts of the 2005 and 2008 OABs, or to retain the $10,000.00 OAB he received in 2008.

6.  The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his or her entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.  Although this ruling specifically addressed reenlistment bonuses, it applies to other bonuses, also.

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)                                         AR20130007094





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ABCMR Record of Proceedings (cont)                                         AR20130007094



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