IN THE CASE OF:  	  

		BOARD DATE:  17 March 2015	  

		DOCKET NUMBER:  AR20140015570 


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 that she be allowed to retain her officer accession bonus (OAB).

2.  The applicant states, in effect, that she was notified in May 2013 that her OAB was invalid and would be recouped because she signed the agreement the day before she was accessed.  She goes on to state that she requested an exception to policy from the National Guard Bureau (NGB) and it was denied because she signed the OAB while under a Reserve Officer Training Corps (ROTC) agreement, because it was initialed incorrectly, and signed the day before she was accessed, because the bonus control number (BCN) was requested after she was accessed, and because she was not serving in the area of concentration for which she contracted.  She continues by stating that she received her bonus in two payments and recoupment will create a financial hardship on her family.

3.  The applicant provides documents identified in a list on page 8 of her application.

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 enlisted in the Iowa Army National Guard (IAARNG) under the Simultaneous Membership Program on 25 August 2006 and served until she was honorably discharged on 14 December 2007 to accept a commission.

3.  She graduated from college on 15 December 2007 and was commissioned as a United States Army Reserve (USAR) second lieutenant (2LT) on the same date.  She also completed an OAB Addendum on that date in which she agreed to serve in the IAARNG for a period of 6 years in area of concentration (AOC) 92A (Quartermaster) in return for a bonus of $10,000.00.  The service representative and witnessing officer also signed it on the same date.

4.  On 16 December 2007, the applicant took her oath of office as a second lieutenant in the IAARNG. 

5.  The applicant completed the Quartermaster (QM) Basic Officer Leadership Course (BOLC) III on 27 August 2008, was awarded AOC 92A, and shortly thereafter was paid her first installment of her OAB.

6.  A review of her official records shows that she had the following assignments:

* 92A Platoon Leader – Brigade Support Battalion
* 88A Executive Officer – Brigade Support Battalion
* O2B S4 Squadron Logistics Officer  while deployed to Afghanistan
* 92A Logistics Officer – Infantry Brigade Combat Team (IBCT)
* 90A Logistic Officer (effective 1 June 2012) IBCT

7.  The applicant was ordered to active duty in support of Operation Enduring Freedom during the period 29 July 2010 to 11 July 2011 and deployed to Afghanistan with her unit, an IBCT squadron during the period 16 November 2010 to 1 June 2011.  She was promoted to the rank of captain (CPT) on 27 July 2013. 

8.  On 24 June 2013, the applicant submitted a request for an exception to policy requesting that she be allowed to retain her OAB contending that the errors regarding her OAB Addendum were through no fault of her own.

9.  On 30 June 2014, the NGB denied her request for an exception to policy and directed recoupment of her entire bonus.  The NGB cited as the basis for its disapproval of the applicant’s request the following:

* applicant signed the OAB agreement while under contract with the ROTC
* the agreement was improperly initialed
* the addendum was signed before she was accessed
* her BCN was requested after the date of accession
* applicant is not serving in the AOC for which she contracted

10.  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 paragraph (2)(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 (2)(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.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs), paragraph 2-5, provides that bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by State policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

12.  NGB Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007 (Policy Number 07-06 – which was continued to FY08), dated 10 August 2007, paragraph 14, provides that in order to be eligible for receipt of either of two OAB's, applicants must sign their bonus addendums on the date they accept their appointments/commissions and meet the following eligibility requirements:

	a.  agree to serve as an officer for a period of not less than 6 years on active drilling status and meet all the required eligibility;

	b.  agrees to serve in a critical skill AOC as defined by the ARNG;

	c.  not accept an appointment as an officer or warrant officer for the purpose of qualifying for employment in a military technician or Active Guard Reserve position; and

	d.  not be receiving and will not receive the following benefits during the period of service for which contracted:  Health Professions Stipend Program, Education Loan Repayment Program, Other Educational Assistance Programs – U.S. Marine Corps Platoon Leaders Class College Tuition Assistance Program, Reserve Officers' Training Corps (ROTC) Financial Assistance Program for Specially Selected Members, ROTC Financial Assistance Program for Specially Selected Members – Army Reserve and ARNG, or Senior Health Care Professionals in Critically Short Wartime Specialties.

13.  NGB SRIP Guidance for FY07 (Policy Number 07-06), dated 10 August 2007, paragraph 14p, also provides that the ARNG offers a $10,000.00 OAB to newly-commissioned officers and newly-appointed warrant officers who agree to serve 6 years in a modified table of organization and equipment (MTOE) unit in a valid AOC.  The MTOE OAB will be paid in two 50-percent installments.  The first 
50-percent installment ($5,000.00) will be paid upon successful completion of a BOLC and the second and final 50-percent installment will be processed for payment on the third anniversary of commission or appointment.

DISCUSSION AND CONCLUSIONS:

1.  There is no doubt the applicant entered into an agreement for payment of an OAB.  However, the agreement was determined to be invalid 5 1/2 years after the fact because it appears that her agreement had numerous administrative errors.

2.  The applicant attests that she was informed that she would be paid a $10,000.00 OAB in return for her agreement to fulfill a 6-year commitment in the ARNG and by successfully completing the required training within 3 years of her appointment/commissioning date.

3.  The applicant was commissioned as a USAR 2LT on 15 December 2007, which essentially ended her ROTC obligations.  She completed her QM BOLC, and was paid $5,000.00 of her OAB in 2008.  She was paid the second $5,000.00 OAB installment on her third year anniversary. 
4.  The applicant’s contention that the errors occurred as a result of an administrative oversight on the part of the IAARNG Incentive Officer and were due to no fault of her own has been noted and appears to have merit.

5.  Regarding the fact that the applicant was not serving in the AOC for which she contracted at the time the NGB disapproved her request for an exception to policy, the applicant was a junior (company grade) officer and was required to serve in the position to which she was assigned.  Additionally, it is a command responsibility to ensure that bonus recipients are assigned to the positions commensurate with the bonus they received and it applied to both officer and enlisted personnel.  In short, individual Soldiers do not slot themselves or assign themselves to their positions. 

6.  The evidence shows the applicant fulfilled the requirements to qualify for payment of the bonus, did absolutely nothing wrong, and upheld her end of the bargain.  Therefore, it would serve the interest of equity and justice to allow her to retain her OAB.  It simply does not make sense to hold the applicant at fault for the administrative errors made in completing the addendum as a newly-commissioned 2LT when more experienced officers who were responsible for officer accessions failed to ensure the Written Agreement – OAB Addendum was properly completed.  This is especially true since she was paid both installments  and the IAARNG waited 5 1/2 years to inform her that her contract was not valid for administrative reasons.  If it took the IAARNG 5 1/2 years to discover that her contract/addendum was administratively flawed, it is not reasonable that a newly-commissioned 2LT would know what the procedures were on the date she was commissioned.

7.  In short, to date the applicant has been penalized for relying on those officials responsible for recruiting officers.  It is not appropriate for the applicant to suffer for the mistakes of more senior officials who were responsible for ensuring that all State Army National Guard paperwork was done in a proper manner and it does not send the proper kind of message to a future leader or demonstrate that the Army takes care of its own and is responsible for its actions.

8.  Accordingly, in the interest of justice and equity, the applicant should be allowed to retain her OAB. 



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 that the applicant’s OAB payment is valid, by terminating all collection actions regarding the OAB and that any monies collected to date be returned to the applicant.




      ____________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)                                         AR20140015570



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ABCMR Record of Proceedings (cont)                                         AR20140015570



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