IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130011362 


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 he be paid an Officer Accession Bonus (OAB) in the amount of $10,000.00.

2.  The applicant states, in effect:

* he requests the exception to policy (ETP) denial for the OAB be repealed
* no installment for payment was initiated because the OAB was not entered into the Information Management and Report Center (IMARC)
* payment of the OAB was refused because the National Guard Bureau (NGB) deemed his area of concentration (AOC) was noncritical and it was listed on the addendum due to administrative oversight 
* upon accession he was offered an OAB
* none of his incentives were processed and were invalidated due to administrative errors
* at the time of the contract, the bonus addendum was signed by him and his recruiter
* it was under verbal and written contract that this extension was valid
* the service representative signed and authenticated the OAB's validity at the time of the contract, but failed to initiate and establish a bonus control number (BCN) in IMARC
* remedial training was provided to the entire brigade
* it is not his fault that administrative actions were not executed to the standing operating procedure   
 

3.  The applicant provides:

* OAB Written Agreement
* ETP memorandum from the National Guard Bureau (NGB)
* Request for ETP letters
* Service School Academic Evaluation Report

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Delaware Army National Guard (DEARNG), the applicant was appointed as a second lieutenant in the DEARNG on 2 October 2010.  

2.  On 2 October 2010, he signed a Written Agreement for an OAB in which he agreed to serve in the ARNG under the Selected Reserve (SELRES) Incentive Program (SRIP) for a period of 6 years in AOC 31A (military police).  The agreement states AOC 31A is a critical officer/warrant officer skill and is designated for bonus entitlement by the Secretary of Defense or his delegate.  The addendum also shows he would receive a bonus of $10,000.00 upon completion of the Basic Officer Leadership Course (BOLC) or Warrant Officer Basic Course (WOBC) for the contracted critical skill.  There is no BCN shown on this agreement.

3.  He completed the Military Police BOLC on 17 July 2011.

4.  On 13 January 2012, officials at DEARNG submitted a request for an exception to policy for the applicant to retain the $10,000.00 OAB.  

5.  On 28 February 2012, the NGB disapproved the request for an exception to policy because the applicant's AOC could not be validated as a critical AOC on the date of commission.  The NGB stated:

	a.  In accordance with ARNG SRIP guidance 10-01 (effective 16 June 2010 to 31 July 2011), eligible applicants were offered the OAB.

	b.  The applicant was commissioned into the DEARNG and signed his OAB on 2 October 2010.  He was appointed into an excess position for AOC 31A.  The AOC 31A was not on the critical AOC list and there were numerous administrative errors on the incentive agreement.  A review of the documents supports the applicant was not eligible for the OAB; therefore, the incentive is to be invalidated. 

6.  He was promoted to first lieutenant on 2 April 2012.
7.  He was ordered to active duty on 2 January 2013 in support of Operation Enduring Freedom.  He served in Afghanistan from 12 February 2013 to 
18 September 2013.  On 28 October 2013, he was released from active duty.

8.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1.  The opinion states:

   a.  In order to be eligible for the SELRES OAB as a commissioned officer an individual in the ARNG must meet the Headquarters, Department of the Army eligibility criteria and be appointed in a critically-short AOC listed in the current ARNG SRIP announcement in effect on the date the individual makes application for officer appointment/training or on or before the officer's appointment date.  A review of the ARNG SRIP in effect when the applicant was commissioned indicates his AOC (31A) was not eligible for the bonus.

   b.  The Army G-1 recommends disapproval of the applicant's application since 31A was not an authorized critical skill for the SELRES OAB.   

9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond.

10.  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) to serve in the SELRES of the Ready Reserve in a skill designated for a period specified in the agreement.  

11.  National Guard Regulation 600-7 (SRIPs), paragraph 2-5, states bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by State policy for bonus control numbers, accuracy of contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

12.  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:



   a.  section 0201 (General provisions) a member of the uniformed services who enters into a written agreement with specified service conditions for receipt of a bonus, special or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as "pay or benefit"), is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  If the member fails to fulfill the service conditions specified in the written agreement for the pay or benefit, then the pay or benefit may be terminated and the member may be required to repay an amount equal to the unearned portion of the pay or benefit.  Such repayment will be pursued unless the member's failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member's control.  Conditions under which repayment will not be sought are set forth in section 0202; and

   b.  section 0202 (Repayment and non-repayment 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 Department's full payment of an unpaid portion of, a pay or benefit 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.  The applicant's request for payment of an OAB in the amount of $10,000.00 per his Written Agreement-OAB Addendum was carefully considered and determined to have merit.

2.  He was appointed as a second lieutenant in the DEARNG on 2 October 2010 and his Written Agreement-OAB Addendum indicated he would be paid a $10,000.00 bonus.  His first and final payment of $10,000.00 would be paid upon successful completion of BOLC or WOBC for the contracted critical skill.  He completed the Military Police BOLC on 17 July 2011.

3.  His Written Agreement-OAB Addendum also states AOC 31A is a critical officer/warrant officer skill and is designated for bonus entitlement by the Secretary of Defense or his delegate.

4.  Although an ETP was requested, the applicant's OAB was subsequently denied by the NGB because the applicant's AOC was not on the critical AOC list and there were numerous administrative errors on the incentive agreement.

5.  The advisory official also recommended disapproval of the applicant's request for the OAB because his AOC was not an authorized critical skill for the bonus.

6.  By law, the Secretary concerned may authorize an affiliation/accession bonus up to the amount of $10,000.00 to officers who enter into an agreement to serve in the SELRES in a critical specialty.  The law allows the Secretary concerned the latitude in establishing the criteria and eligibility for the bonus.

7.  The evidence shows the applicant fulfilled the requirements of his Written Agreement-OAB Addendum and did absolutely nothing wrong.

8.  In view of the facts of this case, it would be appropriate and serve the interest of justice and equity to correct the applicant's records by showing he signed his Written Agreement-OAB Addendum on 2 October 2010 and showing the Department of the Army authorized him to receive the bonus in question.

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 by:

	a.  showing the appropriate authority authorized payment of the bonus to him in accordance with his Written Agreement-OAB; and



	b.  paying him the $10,000.00 bonus out of ARNG funds as a result of the above corrections.




      _______ _   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)                                         AR20130011362



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ABCMR Record of Proceedings (cont)                                         AR20130011362



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