IN THE CASE OF:	  

		BOARD DATE:	  26 JUNE 2014

		DOCKET NUMBER:  AR20140002468 


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 a Special Pay Bonus (SPB) incentive starting in 2009.

2.  The applicant states that in 2009 when returning to the Oregon Army National Guard (ORARNG) from the U.S. Army Reserve (USAR) Medical Command (MEDCOM) paperwork was completed requesting the incentive which he understood would be submitted.  It was unknown to him and not disclosed by the recruiter that any additional paperwork was necessary.  The bonus needs to be paid as promised.  The error was caused by failure of the recruiter to follow through on the request.  

3.  The applicant provided a copy of his U.S. Army Recruiting Command (USAREC) Form 1252 (USAR and ARNG Incentives Declaration Statement).

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.  The applicant was appointed in the ORARNG, Medical Corps, as a major, on 3 August 2001, with prior commissioned service.  He was promoted to colonel on 18 October 2006.  

3.  On 6 April 2009, he completed and signed a USAREC Form 1252 wherein he indicated he would like to receive a 3-year SPB incentive.  The form states in paragraph 4, "This declaration serves only as a written notice by the applicant or Soldier that he or she wishes to be considered for the above stated incentives.  Eligibility will be determined in accordance with memorandum referenced in paragraph 1."

4.  In an advisory opinion, dated 9 May 2014, the Chief, Personnel Policy Division, NGB, reiterated the applicant's request.  The NGB official recommended disapproval of the applicant's request.  The NGB official stated:

   a.  The applicant and his ORARNG recruiter completed a USAREC Form 1252; however, this form was neither a bonus contract nor a promise to receive an incentive.  USAREC Form 1252, paragraph 4 states, "This declaration serves only as written notice by the applicant or Soldier that he or she wishes to be considered for the above stated incentives."

   b.  The applicant never completed a written agreement for that incentive.  Written agreements are required for that SPB in accordance with Title 37, U.S. Code, section 302g, paragraph a, which states, "An officer of the Reserve Component of the Armed Force…who executes a written agreement under which the officer agrees to serve in the Selected Reserve of an armed force for a period of not less than one year nor more than three years, beginning on the date the officer accepts the award of special pay under this section, may be paid special pay at an annual rate not to exceed $25,000."

   c.  The ORARNG concurred with the recommendation.

5.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 9 May 2014.  

6.  In a memorandum, dated 23 May 2014, the Senior Officer Recruiter, ORARNG, stated:

   a.  The paperwork required to award the applicant a Special Pay – 3-year Option on 6 April 2009 was completed; however, that was done during a national transition between two systems of records in the recruiting command and two Special Branch recruiters there in the ORARNG.  The State was improving processes at the time, and there were several records that required correcting as a result of that process change specific to Army Medical Department recruiting.  The applicant was one of those cases.

   b.  At the time the applicant was under the impression that he would receive the 3-year option bonus, which was accurate according to his eligibility; however, due to incorrectly filed paperwork he never received the bonus he was due.  The records in question were lost in transition between the two Special Branch recruiters they had during that year.

   c.  None of the lack of evidence of a bonus was the fault of the officer, but the officer was left with the impression of a bonus owed to him by the recruiter.  The applicant's commitment to continued service was made on that occasion under the premise that he would receive that bonus, but did not.  He has since re-committed to further service to their State and has been a tremendous asset to Oregon's MEDCOM in an environment where the State has far too few medical doctors in uniform.  He currently loses money attending drilling periods.  The bonus was the only item that provided appropriate compensation for physicians.
   
   d.  They ask that special consideration be made under those facts and that the applicant he afforded the bonus that he should have received in 2009 due to their errors.  

7.  In the applicant's rebuttal, dated 8 June 2014, he stated multiple documents had been sent from Captain (CPT) Zxxxxx to CPT Pxxxxx per discussion and documentation from CPT Zxxxxx to him.  Documentation included statements from the ORARNG recruiting command and ORARNG G1 that he did all that was known by him to be required for such bonus and met all requirements to receive full bonus payment of $25,000/year for 3 years starting in 2009 through 2012.  Should any further documentation be requested he and CPT Zxxxxx should be notified.  

8.  In a memorandum, dated 23 June 2014, the Deputy Chief of Staff, Personnel, ORARNG, stated:

   a.  The applicant expressed his willingness to enter into an incentive contract in exchange for his service in the ORARNG.  He did so on 6 April 2009 by signing a USAREC Form 1252, selecting the "Special Pay – 3 year option.
   b.  That office found no indication of negligence on the part of the applicant nor did they find any indication that he was informed at any time of a need of further action.  It was the opinion of that office that the applicant could have drawn flawed conclusions regarding the incentives process or that he was misinformed by the staff in place at the time.  The text on the USAREC Form 1252 did not state that further action was required by the individual.  In either case, they believed the unfortunate matter to be due to no fault on the part of the Soldier.

9.  Department of Defense Instructions (DoDI) 1205.21, paragraph 6.2 states, as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped.  That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member.  Services shall use the model written agreements set out in this Instruction; however, Service-specific agreements may be used, if they include all elements of the model agreements.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant submitted a USAREC Form 1252 on 6 April 2009 for an SPB incentive.  However, that document is not a contract and only shows the intent of an incentive being offered.  Upon reading the form he knew or should have known the declaration served only as written notice that he wished to be considered for the incentive.   

2.  The applicant would have needed to have signed a valid contract in order to receive the incentive and been approved.  Unfortunately, it appears his willingness to enter into an incentive contract in exchange for his services in the ORARNG occurred during a transition between two systems of records in recruiting command in 2009.  However, the fact remains he never completed a written agreement in accordance with the law.  With no approved signed valid agreement/contract he is not entitled to receive the incentive.  The law and the DoDI 1205.21 clearly state that an executed written agreement is required.

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





BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSISON AND CONCLUSIONS above, the Board determined that relief should be granted.  

2.  Colonel S___, in the memorandum from the Oregon Military Department, Deputy Chief of Staff, Personnel, dated 23 June 2014, acknowledged that the applicant had expressed his willingness to enter into an incentive contract and there was no indication that he was informed at any time of a need for further action.  Colonel S___ opined that the applicant could have drawn flawed conclusions or was misinformed by the staff in place at the time.  The text on the USAREC Form 1252 did not state that further action was required by the individual.

3.  The Board accepted that memorandum as sufficient evidence to show that the applicant and the Oregon Military Department believed the USAREC Form 1252 promised the applicant payment of a Special Pay Bonus incentive.

4.  Therefore, 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 Army National Guard records of the individual concerned be corrected by showing a written agreement for the Special Pay Bonus incentive was properly and timely completed and paying the incentive, out of Army National Guard funds, as a result of this correction.



      _______ _   _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)                                         AR20140002468





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ABCMR Record of Proceedings (cont)                                         AR20140002468



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