IN THE CASE OF:	  

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20140001057 


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 an exception to policy (ETP) to receive an officer accession bonus (OAB) in the amount of $10,000 offered at the time of his commissioning.

2.  The applicant states:

* on 14 September 2006, he was commissioned in the Maryland Army National Guard (MDARNG) and signed an OAB Addendum
* he decided to make the Army his career after serving nearly 3 years with the Guard, serving one combat tour in Iraq, and 18 months on active duty
* he attempted to acquire an Active Guard Reserve or technician position within the MDARNG for several months; however, there were limited to no officer positions available
* in February 2009, he was informed that his active duty special orders would not be renewed after 30 September 2009
* on 8 June 2009, he accepted a commission in the Regular Army and still remains on active duty
* his accession into active duty was voluntary; however, Army Regulation 135-7 (Incentive Programs), section 2-8, paragraph 5e states recoupment of bonus payments will be started if involuntarily ordered to extended active duty in the active Army
* in June 2009, he, his active duty recruiter, and his ARNG commander all agreed the cited section of Army Regulation 135-7 prevented the ARNG from recouping his bonus
* he was notified of the recoupment 4 years after the fact
3.  The applicant provides:

* self-authored ETP Request Letter, dated 16 July 2013
* Army Regulation 135-7 extract
* National Guard Bureau (NGB) ETP Denial Letter, dated 12 December 2013
* Notification of Incentive Eligibility Termination Letter, dated 20 December 2013

CONSIDERATION OF EVIDENCE:

1.  On 26 May 2006, the NGB published ARNG Selected Reserve Incentive Program (SRIP) Guidance for fiscal year (FY) 2006 (Policy Number 06-06), for the period 26 May 2006 through 31 December 2006.

2.  NGB SRIP Policy Number 06-06, paragraph 7p (OAB) states the ARNG offers a $10,000 OAB to newly commissioned officers and newly appointed warrant officers who agree to serve in the ARNG and meet, in pertinent part, the following eligibility requirements:

* agree to serve for a period of not less than 6 years on active drilling status
* agree to serve in a critical skill area of concentration (AOC) as defined by the ARNG

3.  On 14 September 2006, the applicant was appointed as a second lieutenant (2LT) in the MDARNG.  In connection with his appointment he executed an OAB Addendum which shows he would receive a $10,000 bonus in one lump sum upon his successful completion of the officer basic course and that:

* he agreed to serve in the Selected Reserve for a 6-year period in a critical officer skill designated for bonus entitlement by the Secretary of the Army
* he acknowledge he would incur recoupment of the unearned portion of the OAB if he was separated from the Selected Reserve for any reason other than death, injury, illness or other impairment not the result of his own misconduct or an involuntary call-up or mobilization

4.  His OAB Agreement does not contain the signature of the service representative and date or a bonus control number.

5.  Orders Number 305-130, issued by the State of Maryland, Fifth Regiment Armory, Baltimore, MD, dated 31 October 2008, show the applicant was ordered to active duty for special work for the period 1 November 2008 through 30 April 2009.
6.  On 31 May 2009, the applicant was honorably released from active duty.

7.  On 7 June 2009, the applicant was honorably discharged from the MDARNG and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve).

8.  On 8 June 2009, the applicant accepted a commission in the Regular Army as a 2LT and executed an oath of office on the same date.

9.  On 22 June 2010, he was promoted to the rank/grade of captain/O-3.

10.  On 16 July 2013, the applicant submitted an ETP for the retention of his OAB to the NGB.

11.  On 12 December 2013, the NGB disapproved his ETP request.  The Deputy G-1, ARNG, NGB stated:

	a.  The applicant was discharged or separated prior to the completion of his service obligation.

	b.  His contract/bonus addendum contained a missing signature and date from the service representative.

	c.  His contract/bonus addendum did not annotate the critical area of concentration or was illegible in the space provided.

12.  On 30 December 2013, the MDARNG Incentive Manager notified the applicant of the denial of his ETP request and recoupment of his OAB in the amount of $5,555.56.

13.  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 Selected Reserve of the Ready Reserve in a skill designated for a period specified in the agreement.  

14.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) and Army Regulation 135-7 both state applicants for programs administered by these regulations are required to sign documents which specify the eligibility criteria and the term of service for the desired incentive.  The document will contain an acknowledgement that the applicant has been advised of and understands the benefits of the program and the conditions which can cause suspension or termination and recoupment is applicable.  These documents will be authenticated by a proper witnessing official and will include the preparation date.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's OAB Addendum does not contain the service representative's signature and date and bonus control number, the evidence of record shows the applicant was fully eligible to receive an OAB at the time of his commissioning.

2.  Nevertheless, he agreed to a 6-year period of service and was paid the OAB.  However, he failed to complete his contractual 6-year obligation.  Insufficient evidence has been presented showing an error or injustice.  Therefore, recoupment of the unearned portion of his bonus is appropriate.

3.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20140001057



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ABCMR Record of Proceedings (cont)                                         AR20140001057



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