IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130013837 


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 correction of her Army Military Human Resource Record (AMHRR) to show she entered into an Officer Accession Bonus (OAB) contract on 7 July 2007, met all of the requirements outlined in her OAB contract, and qualified for the bonus payment.

2.  The applicant states she contracted for the OAB.  She was accessed into the Maryland Army National Guard (MDARNG) as a 42A (Human Relations) and placed with the Joint Forces Headquarters (JFHQ) unit.  She served for about a year as a Personnel Management Officer, before being involuntarily transferred to the 1229th Transportation Unit in May 2008 due to state transformation.  She attended the Adjutant General (AG) Corps Basic Officer Leader Course (BOLC) in August 2008 and was awarded the AG Branch Insignia on December 2008.  Upon her return from BOLC, she engaged her state incentive manager to request the first payment of her OAB.  She was told several months later, in 2009, that she could not receive the funding because she had not completed the 88D transportation course.  She informed the incentive manager that she never contracted for 88D and was moved to an 88D position due to unit transformation. She was never re-slotted for a different branch.  She was not told she had to hold a transportation branch.  Her file was dormant for two years because the state did not have an OAB representative due to the State's lead person’s deployment.  She was also told during that time that 42A was not on the 2007 critical skill list; but that 42H was on the critical skill list.  

3.  The applicant states she informed the interim incentive manager that 42H was in fact an area of concentration (AOC) and not a Basic Branch, and that she was not informed that her contract was tied to a specific AOC.  The contract did not have a space to write in a specific AOC, or unit identification code.  The addendum did not state that information.  She stayed in the transportation company from 2008 to 2013.  She branch transferred to the Transportation Corps in AOC 88D on 19 August 2011.  She served as a platoon leader, executive officer, and later as a company commander for two years.  She submitted an exception to policy (ETP) to the MDARNG in May 2013.  It was denied by the National Guard Bureau (NGB) because of issues with her AOC, her transferring to the Active Guard Reserve (AGR), and serving in the Selected Reserve for only 4 1/2 years of the required 6-year contract.  She contends that she has met all the requirements of the OAB contract and feels that the government should uphold its end of the agreement.  She loves being in the military.  This year marks her 15th year, and she is looking to continue to serve for another 10 years.

4.  The applicant provides copies of:

* NGB Form 337 (Oaths of Office) dated 7 July 2007
* Written Agreement, OAB Addendum, dated 7 July 2007
* DA Form 1059 (Service School Academic Evaluation Report) dated           3 December 2008
* DA Form 1059, dated 18 August 2011
* Memorandum for Record, JFHQ, 5th Regiment Armory, dated 1 April 2013
* Memorandum, Headquarters, MDARNG, dated 26 April 2013
* Memorandum, NGB, dated 6 June 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  An NGB Form 337 dated 7 July 2007 shows that the applicant took her oath of office as a second lieutenant in the MDARNG.


3.  The written agreement signed on 7 July 2007 by the applicant provided the following requirements in return for payment of a $10,000 OAB:

	a.  agreement to accept an appointment as an officer in the armed forces to serve in the Selected Reserve in a critical officer skill that is designated for bonus entitlement by the Chief, ARNG (the agreement did not list what the critical skill would be);

	b.  agreement not to accept an appointment as an officer in the Selected Reserve for the purpose of qualifying for an AGR position;

	c.  agreement to serve in the Selected Reserve for 6 years, the full period of the agreement; and

	d.  agreement to serve satisfactorily for the complete period in the Selected Reserve in the ARNG of the United States in the critical skill in which accessed.

4.  On 1 April 2013, the applicant requested an ETP to receive payment of her OAB in accordance with the contract signed on 7 July 2007.  She stated in her request that she was accessed as an AG Corps officer prior to being commissioned in July 2007.  She was offered the OAB in the amount of $10,000.00 with a bonus control number 008120003MD effective 7 July 2007.  She served as the Personnel Management Officer with the JFHQ for 1 year prior to attending AG BOLC.  Three months prior to attending AG BOLC, she was transferred to the 1229th Transportation Company due to the transformation within the State of Maryland and the elimination of her position.  She stated the incentives manager told her the OAB contract was invalid because she had been assigned to an 88D position and attended the 42B course.  She contended that she was never informed that she needed to attend the 88D course in order to receive the OAB.  She argued that all her contract required was completion of BOLC and 3 years service.  She argued that she upheld her part of the contract.

5.  On 26 April 2013, the State Incentive Manager, MDARNG wrote a memorandum to the NGB requesting that the applicant receive her OAB as an exception to policy.  The incentive manager argued that he applicant had contracted for 88D AOC which was a critical AOC at the time the applicant was commissioned.  However, the applicant completed 42B AOC which was not a critical AOC meaning the applicant did not honor the contract.  The applicant's 

contract did not list an AOC.  The incentive manager stated the applicant was misinformed and should not be penalized.  This was an administrative error that should not disqualify the applicant from receiving the OAB.

6.  On 6 June 2013, the Deputy G1 (Personnel Officer), NGB, denied the applicant's request for an ETP concerning the OAB.  The State Incentive Manager was directed to terminate the applicant's incentive without recoupment because no payments had been processed.  The denial was based on the following discrepancies:

	a.  The applicant contracted for a critical skill option in accordance with the Selected Reserve Incentive Program (SRIP) guidance for fiscal year 2007.  However, the AOC could not be validated as an authorized critical skill.  The NGB does not have the authority to grant an exception.

	b.  The applicant entered the AGR program 4 1/2 years after the contract start date which violated the provisions of the SRIP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her AMHRR should be corrected to show she entered into an OAB contract on 7 July 2007, met all of the requirements outlined in her OAB contract, and qualified for the bonus payment.

2.  The available evidence clearly shows that the applicant signed an OAB in 2007 agreeing to accept an appointment as an officer in the Selected Reserve for a 6-year period.  She further agreed to serve in a critical skill that was designated for bonus entitlement.  However, the written contract did not specify the AOC critical skill.  It appears the applicant would have had no expectation of receiving an OAB until she signed something telling her what that AOC would be.

3.  There is no evidence showing that the applicant was ever awarded a critical skill AOC that would have complied with the intent of the written agreement.

4.  Furthermore, the evidence shows that the applicant entered the AGR program after only 4 1/2 years, violating the 6-year Selective Reserve requirement in her written agreement.

5.  In view of the above, the applicant's request should be denied.


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)                                         AR20130013837



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ABCMR Record of Proceedings (cont)                                         AR20130013837



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