IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140009362 


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 cancellation of the $10,000 officer accession bonus (OAB) debt against him in the California Army National Guard (CAARNG).

2.  The applicant states he was eligible for a $10,000 OAB due to his critical area of concentration (AOC) of 12B (Engineer) and completion of the Officer Basic Course.  He was led to believe he was eligible for the OAB based on the criteria by the Reserve Officers' Training Corps Liaison Officer and the Incentives Task Force representative.  The accession bonus program was active at the time he applied for the bonus. 

3.  The applicant provides:

* Request for documentation from the Incentives Task Force
* Incentives Task Force Bonus Audit Form
* ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007, 1 January to 31 March 2007 (Policy Number 07-04)
* Extension of ARNG SRIP Policy Number 07-04 to 15 June 2007
* List of critical AOCs
* Repayment of Unearned Portion of Bonuses, Special Pay, and Educational Benefits or Stipends
* Memorandum from the CAARNG Soldier Incentives Assistance Center Commander 



CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the ARNG, the applicant's record shows he was appointed as a Reserve commissioned officer of the CAARNG and executed an oath of office on 1 June 2007. 

2.  He entered active duty on 9 March 2008 and completed the Engineer Basic Officer Leader Course (BOLC), Phase II, from 30 April to 1 August 2008.  He was honorably released from active duty on 1 August 2008. 

3.  He was promoted to first lieutenant on 1 December 2008.  He completed the Engineer Captains Career Course from 15 to 29 October 2010, and he was promoted to captain on 26 April 2011.

4.  He was honorably separated from the ARNG on 15 March 2014 and upon termination of his Federal recognition, he was transferred to the U.S. Army Reserve Control Group (Reinforcement). 

5.  Prior to his separation from the ARNG, his commander notified him that the CAARNG audited his bonus incentive and noted a discrepancy.  He was paid a $10,000 OAB but there was no record that he executed a contract/agreement.  Payment was made in violation of DOD guidance and as such, the amount paid would be recouped.  He was also notified that he was eligible for an exception to policy to substantiate his incentive payment.  Failure to submit an exception with a copy of the agreement within 30 days would result in termination and/or recoupment. 

6.  There is no indication in his records and he did not provide any to show he submitted an exception policy request or provided a copy of his agreement to the Incentives Task Force. 

7.  On 30 December 2013, the Commander of the CAARNG Soldier Incentives Assistance Center submitted a memorandum recommending partial approval.  He stated: 

	a.  The applicant's OAB addendum is missing from his records; however, there is no evidence of fraud by the applicant and he was fully eligible for the incentive.  Because of the absence of the agreement, the CAARNG initiated action to recoup the paid bonus. 

	b.  He commissioned on 20 June 2007 for the critical AOC of 21B (Engineer) and he completed the Engineer BOLC on 1 August 2008, earning the AOC of 21B.  He accepted a Military Technician (Mil Tech) position on 26 October 2008. He had received two payments of $5,000 each on 18 and 22 August 2008.  At the time of his appointment, he was subject to the eligibility criteria of ARNG SRIP 07-05.  This policy stated the ARNG offered a $10,000 bonus to newly-commissioned officers who agree to serve for 6 years.  The applicant fulfilled the 6 years on 20 June 2013. 

	c.  When he commissioned on 20 June 2007, AOC 21B was a critical AOC during the period 16 June 2007 through 31 March 2008.  This AOC was also critical when he completed BOLC.  However, he did not sign an OAB agreement and the change in his status to Mil Tech essentially terminated his incentive without recoupment.  Title 37, U.S. Code, section 332(d) states an officer must sign a contract to be eligible to receive the bonus.  Additionally, SRIP 07-05 states the officer must not be accepting appointment for the purpose of qualifying for employment in the Mil Tech or Active Guard Reserve program.  He did not accept an appointment to qualify for a Mil Tech position but his transfer to the Mil Tech program on 26 October 2008 affects his eligibility. 

	d.  SRIP 07-05 states ARNG officers who agree to serve in a critical AOC for 6 years would be paid in one lump installment upon successful completion of BOLC.  Those who agree to serve in a modified table of organization and equipment (MTOE) unit would be paid two 50-percent installments, the first upon successful completion of BOLC and the second at the third anniversary.  He commissioned into the 40th Infantry Division, an MTOE unit.  The proper method of payment would have been to receive 50 percent upon completion of BOLC on 1 August 2008 and the second 50 percent on 20 June 2010.

	e.  He should have received one payment before accepting the Mil Tech position on 26 October 2008 and this amount should not be subject to recoupment according to the SRIP.  However, because his OAB terminated upon acceptance of the Mil Tech program, he was never entitled to receive the second installment.  Even if his OAB were to be created to reflect eligibility, relief from recoupment is the only favorable action regarding the second installment. 

8.  An advisory opinion was received from the National Guard Bureau on 30 May 2014 in the processing of this case.  An advisory official recommended approval of the application's request.  The advisory official stated: 

	a.  The applicant commissioned into the CAARNG on 20 June 2007 for the critical skill of 21B.  The CAARNG Soldier Incentives Assistance Center determined he was not eligible to receive payment due to the absence of an agreement to substantiate payment.  The law says in order to receive a bonus he must enter into an agreement.  But, just because no agreement was found during the audit this does not mean there was no agreement.   
	b.  According to SRIP 07-05, the applicant was eligible for the incentive.  He never signed an agreement but received two payments on 18 and 22 August 2008 which is evidence that there was an agreement.  The absence of an addendum should not automatically disqualify him. 

	c.  According to DOD, the Secretary of the Service may relieve a member from recoupment if it is contrary to personnel policy management objective, against equity and good conscience, or contrary to the best interests of the United States.  The CAARNG Soldier Incentives Assistance Center established that there was no fraud on behalf of the applicant.  It would be against equity and good conscience to recoup his OAB.  

9.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

10.  ARNG SRIP Guidance 07-05 with updates provides for Officer Accession/Affiliation Bonus Options.

	a.  The ARNG offers a $10,000.00 Officer Accession/Affiliation Bonus to newly-commissioned officers and newly-appointed warrant officers who agree to serve 6 years in a critical UIC.  Additionally, officers and warrant officers must serve in a critical AOC vacancy within their chosen UIC.  The Critical UIC Officer Accession Bonus will be paid in lump-sum payment upon successful completion of the Officer Basic Course (OBC)/BOLC or Warrant Officer Basic Course (WOBC) as applicable.

	b.  The ARNG offers a $10,000.00 Officer Accession/Affiliation Bonus to newly-commissioned officers and newly-appointed warrant officers who agree to serve 6 years in a MTOE unit.  Additionally, officers and warrant officers must serve in a valid AOC vacancy within their chosen UIC.  The MTOE Officer Accession Bonus will be paid in two 50-percent installments.  The first 50-percent installment ($5,000.00) will be paid upon successful completion of OBC/WOBC, as applicable, and the second 50-percent installment will be processed for payment on the third-year anniversary of commission or appointment.

11.  DOD Financial Management Regulation 7000.14-R, Volume 7A, chapter 2, paragraph 020201 states when the conditions of a written agreement are not fulfilled, and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of the pay or benefit received.

12.  NGB Policy Number 07-06, updated on 17 February 2008, states officers who sign a 6-year OAB addendum will receive a $10,000.00 bonus.  The bonus would be terminated without recoupment in the case of accepting an AGR or a Mil Tech program.   

13.  A Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that bonus repayment will not be required, if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was commissioned in the CAARNG on 1 June 2007.  He completed BOLC on 1 August 2008 and he was awarded AOC 21B.  Despite the absence of a written agreement between him and the Government, he was paid two installments of $5,000 each on 18 and on 22 August 2008 for an OAB.  He completed more than 6 years of service in the ARNG and he was honorably separated on 15 March 2014. 

2.  On the surface, it appears that despite the absence of an agreement, since the AOC of 21B was in fact a critical AOC at the time and thus authorized a bonus, and since he was assigned to an MTOE unit, he fulfilled the requirements of the OAB agreement had one existed.  

3.  However, according to the CAARNG Soldier Incentives Assistance Center, the applicant accepted a Mil Tech position on 26 October 2008.  This action would have terminated his incentive, without recoupment, even if there had been a written agreement.  The applicant should have received one payment upon successful completion of BOLC.  His second payment would have been due at the three-year mark.  However, because his OAB terminated upon acceptance of the Mil Tech program, he was never entitled to receive the second installment.   

4.  Therefore, notwithstanding the favorable advisory opinion rendered by the NGB, the applicant is entitled to partial relief.  His records should be corrected to show he executed a written agreement for the OAB on 20 June 2007 for the amount of $10,000 with entitlement to the first installment of $5,000 effective 1 August 2008.  His records should also be corrected to show the incentive was terminated without recoupment effective 26 October 2008. 






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and state ARNG records of the individual concerned be corrected to show:

* he executed a Written Agreement – OAB Addendum on 20 June 2007
* he was appointed in a critical skill of 21B upon his appointment in the CAARNG for an OAB in the amount of $10,000
* the applicant is eligible for payment of the bonus in accordance with the terms of his Written Agreement – OAB Addendum, terminating the incentive without recoupment of the first installment, effective 26 October 2008 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to relief from recoupment of the full amount of $10,000.  



      ___________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)                                         AR20140009362





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ABCMR Record of Proceedings (cont)                                         AR20140009362



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