BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140007516 


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, in effect, correction of his records to reflect his entitlement to an officer accession bonus (OAB) in the amount of $10,000 and cancellation of any recoupment actions.

2.  The applicant states on 25 March 2013 he was notified by the California Army National Guard (CAARNG) Incentive Task Force (ITF) that he owed the government $10,000 for an OAB that was erroneously paid to him in 2008.  The ITF stated he was not eligible to receive the OAB because there was no proof of a written contract.

	a.  After completing the Infantry Officer Basic Course he joined the CAARNG on 23 July 2007.  During his recruitment into the CAARNG his recruiter informed him that he was eligible to receive a $10,000 OAB.  Since he was living in Las Vegas, the recruiter agreed to meet him there so he could sign the bonus addendum.  He signed the OAB addendum around August of 2007 at a Starbucks in Las Vegas.  Because of the location, he was unable to receive a copy of the signed addendum.  The recruiter promised to email him a copy.  Unfortunately, he never received a copy and it was never uploaded into his records maintained in the interactive Personnel Electronic Records Management System.  Sometime around January 2008 he received two separate payments of $5,000.

	b.  Notwithstanding the fact that a written contract was not found, he was eligible to receive the OAB at the time of his commissioning.

	c.  He states that the fact the bonus addendum could not be furnished should not automatically bar him from receiving the bonus.  To recoup this bonus from him, especially when he upheld his end of the agreement, would be unfair and inequitable.  He initially served as an infantry officer and has since joined the Judge Advocate General's (JAG) Corps, where he is currently serving as a brigade trial counsel as well as a full-time legal assistance attorney for the CAARNG.

3.  The applicant provides:

* Headquarters, CAARNG Memorandum, subject:  Request for Documentation Supporting Applicant's Incentive
* ITF Bonus Audit Form
* Joint Force Headquarters (JFHQ) CAARNG Orders 211-1027
* National Guard Bureau (NGB) ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007
* personal statement
 
CONSIDERATION OF EVIDENCE:

1.  The applicant successfully completed the Infantry Basic Officer Leader Course on 29 June 2007.  Item 5 (Specialty/MOSC [Military Occupational Specialty Code]) of his DA Form 1059 (Service School Academic Evaluation Report) shows the entry "11A" (Infantry).

2.  On 23 July 2007, he was appointed a Reserve Commissioned Officer in the CAARNG in the rank of second lieutenant.

3.  He provides an email, dated 20 August 2007, indicating his recruiter intended to be in Las Vegas on Labor Day weekend and they could meet at that time for the applicant to sign the bonus.

4.  On 15 December 2011, he was appointed as a 27A JAG Corps officer in the CAARNG.

5.  His record shows he was evaluated for service in 11A positions from December 2007 to January 2012 and 27A positions from January forward.

6.  An ITF Bonus Audit Form, dated 3 April 2013, shows he was not eligible to receive payment for a $10,000 OAB due to absence of an OAB agreement.  The audit form shows a bonus control number of "007120001CA."  The form further shows he was paid $5,000 on 30 January 2008 and $5,000 on 6 February 2008.

7.  A review of his records failed to reveal a Written Agreement, OAB Addendum, which reflected his entitlement to a $10,000 OAB.

8.  On 25 March 2013, Headquarters, CAARNG issued a memorandum stating an audit of the applicant's incentive payments revealed a discrepancy, in that no contract was found resulting in his payment being a violation of federal law and NGB policy.  The recoupment amount listed was $10,000.  The memorandum stated he could provide the supporting documentation or request an exception to policy (ETP).  Failure to submit an ETP or provide the requested supporting documentation to substantiate his request for ETP may result in immediate termination and/or recoupment of his incentive.

9.  On 12 November 2013, the CAARNG Soldier Incentive Assistance Center (SIAC) issued a memorandum, subject:  Army Board for Correction of Military Records Appeal for [Applicant], addressed to the Board.  Therein, the SIAC Commander stated the SIAC audited the applicant's records and discovered that the OAB addendum was missing from his personnel records.  He stated there was no evidence of fraud on the part of the applicant and the applicant was otherwise eligible to contract for the OAB.  He noted that on 7 May 2013, SIAC sent initiation of recoupment action to the U.S. Property and Fiscal Office of the $10,000 already paid the applicant, as the lack of a written agreement violates Title 37, U.S. Code, section 332(d).  He further stated that the applicant was commissioned in the CAARNG as an infantry officer and was eligible for a $10,000 OAB in accordance with SRIP Policy 7-05.  Effective 15 December 2011, the applicant was appointed as a first lieutenant in the JAG Corps.

10.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The NGB official recommended approval of the applicant's request for relief from recoupment of a $10,000 OAB.

	a.  The official stated the applicant was eligible for and received the OAB as an incentive for commissioning into a critical skill area of concentration (AOC), Infantry 11A.  The CAARNG SIAC determined he was ineligible to receive the bonus because there is no bonus addendum on file.  According to Title 37, U.S. Code, section 332(d), "To receive a bonus under this section, a person or officer determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned."  Even though no bonus addendum was found during the audit, it does not mean there was no agreement.

	b.  The applicant has presented email traffic exchanged between him and the officer recruiter dated 14 August 2007 and 20 August 2007 respectively.  The conversation outlines the details of a meeting between the two to take place so 
the applicant could sign the bonus contract.  The fact that he received payment is evidence that there was an agreement.  The SIAC noted there is no evidence of fraud on the part of the applicant.  NGB's recommendation is for relief from recoupment of the OAB.  The CAARNG and NGB Incentives Branch concur with this recommendation.

11.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  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 under paragraph (2) for a period specified in the agreement.  Paragraph (2)(A) states 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.  Paragraph (2)(B) states 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.  Paragraph (B) states 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. 

13.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the ARNG and USAR incentive programs.  The SRIP incentive is offered to newly-accessed officers who met eligibility criteria and accessed into an officer specialty listed in the SRIP, for the period in which commissioned.

14.  ARNG Policy Number 07-05 established policy to administer the ARNG SRIP for the period 16 June 2007 through 31 March 2008.  AOC 11A and 27A were listed on the Critical Skills List in effect at the time.  The ARNG offered two OAB options to newly commissioned officers who agreed to serve in the ARNG for 6 years.  Applicants must sign their bonus addenda on or before their commissioning date and meet the following pertinent eligibility criteria.

* agree to serve for a period of not less than 6 years in an active drilling status 
* agree to serve in a critical skill AOC as defined by the ARNG
* not accepting an appointment as an officer for the purpose of qualifying for employment in the military technician or Active Guard Reserve program
* not receiving a commission or appointment with a subsequent assignment to a Table of Distribution and Allowances unit
* commissioned officers who branch transfer into another branch are not authorized to receive the OAB

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of an OAB addendum for the applicant.  The CAARNG ITF audited the applicant's records and was unable to locate and the applicant did not provide an OAB addendum in connection with his 23 July 2007 commissioning into the CAARNG.  The audit documents do show a bonus control number.  The CAARNG ITF Commander states the applicant was eligible for the OAB at the time and that there was no fraud in this case.

2.  Evidence shows the applicant was paid $10,000 in 2008 for an OAB indicating there should have been a contract available at the time.  The record shows the applicant was trained in and awarded a bonus-eligible AOC (11A) and served in that AOC or another AOC (27A) listed on the critical AOC list in effect at the time.  Evidence shows he has otherwise complied with the terms the SRIP policy in effect at the time.

3.  The ARNG Personnel Policy Division, ARNG Incentives Branch, and CAARNG support granting him relief from recoupment of the $10,000 OAB. 

4.  Therefore, in the interest of equity it would be appropriate to grant the applicant relief by ceasing all recoupment actions related to his $10,000 OAB and repaying him any monies already collected.

BOARD VOTE:

___X_____  ____X____  ___X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

* showing he and all authorized officials executed an OAB addendum in the amount of $10,000 in a timely manner and that the addendum was processed
* based on the aforementioned, cease all recoupment actions and refund any monies already recouped




      _______ _  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)                                         AR20140007516



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ABCMR Record of Proceedings (cont)                                         AR20140007516



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