IN THE CASE OF:	  

		BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130008094 


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 both the $10,000 Officer Accession Bonus (OAB) and the $20,000 Student Loan Repayment Program (SLRP) incentives.

2.  The applicant states based on how his contract was presented by his recruiter and Military Entrance Processing Station career counselor, he should be entitled to both incentives.  His request was denied by the U.S. Army Reserve Command (USARC) G-1 because there is verbiage on the contract that he is not authorized both options by law.  The recruiter assured him that he would get both incentives. Only personnel who are well versed in the U.S. Code could possibly have known that the SLRP authority line is referring to the section in chapter 1609 of the law referred to in section III of the OAB Addendum.  The recruiting staff and the career counselor were either unaware of law or they willfully misled him.

3.  The applicant provides:

* request for exception to policy with endorsements
* email exchange with the USARC G-1
* Exception to Policy OAB Checklist
* DA Form 4187 (Personnel Action)
* appointment memorandum
* DA Form 1059 (Service School Academic Evaluation Report)
* orders to active duty for training (ADT)
* DA Form 71 (Oath of Office – Military Personnel)
* Revised Incentive Policy for Officer Candidate School (OCS)
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Certificate and Acknowledgement – USAR – Service Requirements and Methods of Fulfillment
* Selected Reserve Officer Accession Incentive Program – Accession Bonus Addendum
* SLRP Addendum

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR for 8 years on 7 August 2009.  He enlisted for assignment to the 2nd Battalion, 377th Infantry, 2nd Brigade, Lincoln, NE.  He agreed to attend OCS and he was authorized the following programs and/or incentives as his entitlements:  SLRP - $20,000, and commissioned officer OAB – $10,000.

2.  In connection with his enlistment, he also completed the following addenda:

	a.  SLRP Addendum wherein he acknowledged he was contracting for completion of ADT in military occupational specialty (MOS) 09S (OCS cadet) which Headquarters, Department of the Army (HQDA) approved for a maximum of $20,000 on loan repayment. 

	b.  OAB Addendum wherein he acknowledged that he would accept appointment in the Selected Reserve in a critical officer skill that is so designated by the Secretary of the Army.  He also acknowledged he is not receiving financial assistance under chapters 1608, 1609, 2107, or 2107A of Title 10, U.S. Code, or special pay under section 302G of Title 37, U.S. Code.  He agreed to serve for 6 years in exchange for a $10,000 OAB to be paid in one lump sum upon completion of the officer basic course.

3.  The applicant entered active duty on 10 March 2010 and successfully completed 10 weeks of basic combat training and 12 weeks of OCS.  He was honorably released from active duty on 1 September 2010. 

4.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 2 September 2010. 

5.  He entered active duty on 3 January 2011 and successfully completed the Quartermaster Basic Officer Leader Course from 4 January through 22 April 2011.  He was honorably released from active duty on 22 April 2011.

6.  On 22 August 2011, he submitted an exception to policy for payment of both incentives.  He contended that his contract clearly stipulated the incentives and the recruiter and career counselor both promised the incentives.  No one explained or understood the exclusivity of the two incentives.  He made personal and professional sacrifices to fulfill his desire to serve and the incentives partially offset those sacrifices.  He does not believe it to be fair to go into this contract under misleading circumstances.  His chain of command (battalion commander) recommended approval for him to receive both incentives.

7.  Although not readily available, the email exchange he provides indicates his exception to policy to receive both incentives was not approved.

8.  An advisory opinion was received on 23 May 2013 from the Office of the Deputy Chief of Staff, G-1, Washington, DC, in the processing of this case.  The advisory official recommended disapproval of the applicant's request to receive both options.  He stated:

	a.  This responds to the applicant's eligibility for the Selected Reserve (SELRES) OAB after having SLRP payments made on his behalf.  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.  Section 16301 of Chapter 1609, Title 10 is the statutory authority for the SLRP.  In accordance with paragraph (f) of section 308j it is unlawful for [Applicant] to have SLRP payments made on his behalf and receive the OAB while completing the service obligation for both simultaneously.  These restrictions are also included in Department of Defense (DOD) guidance for the bonus (DOD Instruction (DODI) 1205.21 and DOD Financial Management Regulation Volume 7A, Chapter 56, paragraph 560106), All Army Activities (ALARACT) Message 017/2005, and the OAB agreement that he signed.

	b.  The SLRP is an incentive included in the SRIP.  Army Regulation 601-210 (Active and Reserve Component Enlistment Program), chapter 10 provides guidance regarding continued receipt, termination, and recoupment of SRIP incentives.  Paragraph 10-5a(9), Army Regulation 601-210 states: "Enlisted Soldiers who enter a commissioning program and/or accept an appointment or commission as an officer or warrant officer in a SELRES may continue to receive SLRP payments as stipulated in their original contract so long as they remain otherwise qualified."  Therefore, an enlisted Soldier receiving an appointment in a branch and area of concentration authorized for the OAB, and who is otherwise qualified, may opt to decline the OAB and continue having SLRP payments made for them, notwithstanding paragraph 4, Section VII of the SLRP agreement.

	c.  While entitlement to the SLRP requires an annual service obligation, it should be noted the obligation must be served before SLRP payments are made in accordance with paragraph 3-6a, Army Regulation 621-202 (Army Educational Incentives and Entitlements).  This is reinforced in paragraph 10-9(a)(3), Army Regulation 601-210 regarding recoupment of incentives.  Paragraph 10-9(a)(3) states: "The SLRP and HPLR are normally not recouped because time is served prior to receipt of the incentive.  However, when overpayment or payment in error is made, recoupment may occur when a waiver of indebtedness is not obtained."

	d.  Normally SRIP incentives received as an enlisted Soldier are terminated upon appointment as an officer in accordance with paragraph 10-8a(8)(b), Army Regulation 601-210.  However, since SLRP is authorized to continue after appointment, the Defense Finance and Accounting Service (DFAS) will continue making SLRP payments applied for in accordance with the agreement, unless the officer becomes ineligible or formally requests termination of the incentive. When an officer performs the service obligation for the SLRP after his/her appointment date and then receives a SLRP payment for that service, he/she then becomes ineligible for the OAB, as discussed above.

	e.  The U.S. Army Reserve Pay Center-Fort McCoy verified to this office that it has not made any disbursements for SLRP payments on the applicant's behalf or paid him for the OAB since his appointment date (2 September 2010).  Therefore, this office recommends disapproval of his request to receive the OAB and SLRP concurrently, and that he be informed he may apply for payment of one incentive or the other, but not both.

9.  The applicant was provided with a copy of this advisory opinion.  On 29 May 2013, he responded with a rebuttal.  He again requested payment of both incentives and contended that he was recruited under the affirmation from his recruiter and career counselor that he would be entitled to both incentives.  He has successfully completed the contractual training obligation to receive both incentives.

10.  Title 37, U.S. Code, section 308j(b) states:

	a.  Sub-paragraph (1), 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.

	b.  Sub-paragraph (2), (A) 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; and (B) 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.

	c.  Sub-paragraph (3), 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.

	d.  Paragraph (f) (Relation to Other Accession Bonus Authority), 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 Title 37, for the same period of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR on 7 August 2009.  He agreed to complete OCS and serve in the Selected Reserve for 6 years as a commissioned officer.  In exchange, he was promised the SLRP and OAB incentives for the same period of service.

2.  Although he enlisted in good faith and completed the contractual training for the enlistment incentives, regrettably, he was offered both incentives in error.  By law, qualified Soldiers may be offered the OAB or the SLRP individually and may select one or the other but may not be offered both incentives in combination.

3.  Normally SRIP incentives received as an enlisted Soldier are terminated upon appointment as an officer.  However, since the SLRP is authorized to continue after appointment, DFAS will continue making SLRP payments applied for in accordance with the agreement, unless the officer becomes ineligible or formally requests termination of the incentive.  When an officer performs the service obligation for the SLRP after his/her appointment date and then receives a SLRP payment for that service, he/she then becomes ineligible for the OAB.

4.  The SLRP incentive is more advantageous to the applicant.  Since he did not make an election of which incentive he prefers and since the SLRP incentive predated the OAB incentive, he is entitled to payment of only the SLRP incentive in accordance with the SLRP Addendum.  Regrettably, payment of both incentives is contrary to law.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  __X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* showing he elected the SLRP incentive when he enlisted in the USAR on 7 August 2009 and declined the OAB
* authorizing annual payment towards authorized loans as stipulated in his SLRP Addendum

2.  The Board further determined 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 payment of the OAB incentive.



      ______________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)                                         AR20130008094



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ABCMR Record of Proceedings (cont)                                         AR20130008094



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