BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140013910 


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 his military records by showing he completed an Officer Accession Bonus (OAB) Addendum and is authorized to retain a $10,000 OAB.

2.  The applicant states:

* the California Army National Guard (CAARNG) performed an audit of the OAB he received in 2006
* according to the audit packet he was eligible for the bonus but the signed addendum was not present in their records
* the CAARNG is attempting to recoup the bonus based on the missing addendum
* he learned about the bonus from other candidates and contacted the CAARNG to inquire about it
* he received his bonus sometime in 2006
* he does not remember the details of his interaction with Master Sergeant (MSG) J_ _ _ _ or any other member of the CAARNG regarding the OAB
* he is unable to locate his copy of the signed addendum if he indeed had one
* he would have followed the procedures that were in place at the time in order to receive the bonus which was processed and awarded to him by the CAARNG
* a clerical error was at fault and he was rightfully eligible to receive the bonus
* he had no intent to defraud the government
* he requests he be allowed to submit the necessary documentation to excuse the recoupment of the OAB  

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the U.S. Air Force, effective                     19 August 2006, the applicant was appointed a 2LT in the CAARNG and assigned to duty in an overstrength position in area of concentration (AOC) 35D (All-Source Intelligence Officer).

2.  A DA Form 1059 (Service School Academic Evaluation Report), dated          16 April 2008, shows he completed the Military Intelligence Basic Officer Leader Course.

3.  He was honorably separated from the ARNG on 24 October 2011 and upon termination of his Federal recognition, he was transferred to the U.S. Army Reserve Control Group (Reinforcement).

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

5.  On 31 October 2014, 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.  The SIAC Commander stated:

     a.  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. 

     b.  He was appointed in the CAARNG on 19 August 2006.  Bonus Control Number (BCN) O06090008CA was requested on 26 September 2006.  He contacted the State Incentives Manager on 21 November 2008 referencing a prior telephone conversation and stating that he believed he was eligible for a bonus.  He received two payments of $5,000 in 2008.   He was discharged on 
24 October 2011. 

     c.  The audit determined that he was eligible to contract for the OAB incentive.  However, he was not eligible to receive payment absent a written agreement.  Both paragraph 6.2 of the Department of Defense Instruction (DODI) 1205.21 and subsection (d) of Section 332 of Title 37 of the United States Code (U.S.C.) require a written agreement as condition precedent of payment of an incentive.  Additionally, pursuant to paragraph 1-13 of NGR 600-7 all required documents must be executed concurrently at the relevant time of eligibility.  Subsequent completion of documents in order to gain retroactive eligibility is prohibited.  He would have been required to execute an OAB addendum on or before his appointment date of 19 August 2006.  Because no written agreement is on file, he is not eligible to receive payment of the OAB incentive.

     d.  Although he was eligible to contract for an OAB incentive at the time of his appointment, he did not do so.  Absent a valid written agreement, he is not eligible to receive payment.  The date of the request of the BCN indicates that a bonus was contemplated, although it does not match his date of appointment.  He now requests any available favorable relief to render him eligible for payment, or alternatively, relief from recoupment.

6.  Email, dated 31 October 2014, shows the Commander, SIAC, recommended relief from recoupment. 

7.  During the processing of this case, on 25 November 2014, the Chief, Personnel Policy Division, National Guard Bureau, provided an advisory opinion.  The advisory recommended partial approval of the applicant's request.  It stated:

    a.  According to the CAARNG, the applicant commissioned with the CAARNG on 19 August 2006.  A BCN O06090008CA was requested on 26 September 2006.  He contacted the State Incentives Manager on 21 November 2008 referencing a prior telephone conversation, stating that he believed he was eligible for a bonus.  He was discharged on 24 October 2011.

     b.  He stated on his application that he did not recall the details of his interaction with MSG J_ _ _ _ or any other members of the CAARNG regarding the OAB.  Likewise, he further stated that he is unable to locate his copy of the signed addendum.  Furthermore, he stated he would have followed the procedures that were in place at the time in order to receive the bonus which was processed and awarded by the CAARNG.

     c.  The SAIC determined that he was assigned to an over-strength position from date of commission through 23 October 2008 based upon orders within his interactive Personnel Electronic Records Management System (iPERMS) record.  AOC 35D was a critical AOC within the ARNG Selected Reserve Incentive Program (SRIP) for $10,000 within a six-year term of service.  He was discharged from the ARNG and transferred to the U.S. Army Reserve Control Group Reinforcement on 24 October 2011.  He received two payments of $5,000 on 21 November and 22 November 2008 without an incentive contract or addendum.  If he is granted relief to receive the incentive, he is subject to recoupment for the remaining ten months not completed of the six-year term required.

     d.  DODI 12025.21, 6.2 requires a Soldier to enter into a written agreement to receive an incentive and payment.  The specific reads: 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.  He was required to serve in a valid vacant position and did not, based upon the orders associated.

     e.  The CAARNG concurred with the recommendation.     

8.  The applicant was provided a copy of the advisory opinion for review and comment.  

9.  On 9 December 2014, he responded to the advisory opinion.  He stated:

* he requests that the ABCMR grant relief for him to receive the incentive with recoupment for the remaining 10 months not completed on his 6-year term
* he transferred from the CAARNG to the USAR in order to join Civil Affairs and deploy to Afghanistan
* it was not his intention to default on the six-year requirement
* he understands that he did not fulfill his commitment and feels that it is appropriate for him to pay back that portion of the incentive
* he understands that a signed addendum had not been located but does believe it cannot be determined whether or not an addendum/contract was actually signed and has been lost or misplaced during the last eight years
* he is requesting that his incentive be honored based on his eligibility even though a signed addendum/contract cannot be produced

10.  Title 37, U.S. Code, section 308j (b), states the Secretary concerned may pay an accession bonus 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. 

11.  ARNG Policy Number 06-06 established policy to administer the ARNG SRIP for the period 27 May 2006 through 31 December 2006.  AOC 35D was 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

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of an OAB addendum for the applicant.  The CAARNG SAIC audited the applicant's records and was unable to locate a copy and the applicant did not provide an OAB addendum in connection with his 19 August 2006 commissioning into the CAARNG.  The audit documents do show a bonus control number.  The CAARNG SAIC Commander states the applicant was eligible for the OAB at the time and that there was no fraud in this case.

2.  The 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 (35D) and served in that AOC listed on the critical AOC list in effect at the time.  Further, the evidence shows he failed to complete ten months of the six-year requirement of the SRIP policy in effect at the time.

3.  The ARNG Personnel Policy Division, CAARNG SAIC, and the CAARNG support granting him partial 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 recouping only a prorated amount for the 10 months not completed of the 6 year term required.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 completed OAB contract was completed on 19 August 2006 and paying him the $10,000 OAB minus a prorated amount for the 10 months not completed of the 6 year requirement.

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 paying the 10 months of the OAB contract not completed.



      _______ _   __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)                                         AR20140013910



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ABCMR Record of Proceedings (cont)                                         AR20140013910



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