IN THE CASE OF:  	  

		BOARD DATE:  29 September 2015	  

		DOCKET NUMBER:  AR20140015574 


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 she retain the Officer Affiliation Bonus (OAB) she was paid on 15 May 2008 in the amount of $6,000.

2.  The applicant states she was commissioned in the U.S. Army Reserve (USAR) on 13 May 2005 as a second lieutenant.  She was appointed in the California Army National Guard (CAARNG) on 31 January 2006.  Her original contract was to serve 6 years as a commissioned officer in the CAARNG, which then included an OAB of $6,000.  When she contracted, the Incentives Task Force (ITF) advised her to sign the documents and submit them.  She relied on the expertise of the ITF officials who she believed knew the correct process.  She has been notified the payment of $6,000 is considered erroneous because the ITF official did not properly upload her bonus addendum into her iPERMS (integrated Personnel Electronic Records Management System) record, leaving no copy to be found elsewhere, and making her contract invalid.  She does not feel she should be penalized for the errors made by ITF for missing her bonus addendum in her iPERMS record.

3.  The applicant provides:

* DA Form 71 (Oath of Office - Military Personnel), dated 13 May 2005
* DA Form 71, dated 31 January 2006
* Joint Forces Headquarters (JFH), CAARNG Orders 31-1055, dated 
31 January 2006
* Departments of the Army and the Air Force, National Guard Bureau (NGB) Special Orders Number 34 AR, dated 7 February 2006
* remarks, dated from 22 May 2006 - 28 February 2013, from iMARC (Information Management and Reporting Center)
* DA Form 1059 (Service School Academic Evaluation Report), dated 
23 January 2008
* JFH, CAARNG Orders 7-1039, dated 7 January 2010
* JFH, CAARNG Orders 102-1065, dated 12 April 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 September 2010
* NGB Special Orders 18, dated 23 January 2014
* Headquarters, CAARNG memorandum, dated 12 June 2014
* Army National Guard Retirement Points History Statement, prepared on 20 February 2014

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.  On 12 September 2003, the applicant signed an Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract for scholarship benefits for a period of 2 academic years.  This included tuition and educational fees up to an annual amount of $17,000.  In addition, a flat rate of $600, which could increase during the period of the contract, would be reimbursed as established on an annual basis for books and laboratory expenses.

3.  On 30 December 2003, she enlisted in the New Mexico Army National Guard (NMARNG).

4.  On 5 May 2005, she was appointed a second lieutenant as a Reserve commissioned officer of the Army under the Early Commissioning Program.  On 13 May 2005, she accepted the appointment and took the oath of office.

5.  On 31 January 2006, she was appointed a second lieutenant in the CAARNG. She was assigned to the 670th Military Police (MP) Company, National City, CA as an overstrength platoon leader, area of concentration (AOC) 31A (Military Police Officer).

6.  NGB Special Order Number 37 AR, dated 7 February 2006, granted her Federal recognition effective 31 January 2006 as a second lieutenant in the MP Branch as a transfer from the USAR.  Her date of rank was established as 
13 May 2005.

7.  On 23 January 2008, she satisfactorily completed the MP Basic Officer Course.

8.  On 15 May 2008, she received a payment of $6,000.

9.  JFH, CAARNG orders assigned her as follows:

* Orders 7-1039, dated 7 January 2010, relieved her from the 670th MP Company and assigned her to the Headquarters and Headquarters Company (HHC), 49th MP Brigade as the Public Affairs Officer (AOC 46A)
* Orders 102-1065, dated 12 April 2010, relieved her from the Public Affairs Officer and assigned her to Host Nation Liaison Officer (AOC 31A)

10.  On 6 September 2010, she completed a period of active duty from 27 May 2009 - 6 September 2010.  She was deployed to Iraq from 15 January - 4 August 2010.

11.  On 1 February 2014, she was discharged as a first lieutenant from the CAARNG and her Federal recognition was withdrawn.

12.  On 2 February 2014, she enlisted in the CAARNG in pay grade E-5 for 
2 years.

13.  On 12 June 2014, Headquarters, CAARNG notified the applicant her bonus payments were audited and no bonus addendum was found concerning her OAB.  She was advised she might be eligible for an exception to policy or she could provide the supporting documentation to substantiate her incentive payment.

14.  On 31 October 2014, the CAARNG Soldier Incentives Assistance Center (SIAC) provided an opinion concerning this case.  

	a.  The SIAC audited the applicant and discovered that she was not eligible to contract for or receive payment of the OAB incentive.  There was no evidence of fraud on the part of the service member.
	b.  At the time of her appointment in the CAARNG two relevant versions of Selected Reserve Incentive Program (SRIP) policies were overlapping.  

* on 27 January 2006, NGB released SRIP Policy 06-04, with effective dates of 27 January 2006 through 31 May 2006  
* on 3 February 2006, SRIP Policy 06-05 was published superseding SRIP Policy 06-04 with a retroactive effective date of 27 January 2006 through 31 May 2006

     c.  Her date of appointment fell into the improbable gap of a 7-day period when SRIP 06-04 had not been superseded, but was retroactively covered by SRIP 06-05.

   d.  SRIP 06-04 specified an OAB of $6,000 and SRIP 06-05 specified an OAB of $10,000.

	e.  Both SRIP Policy 06-04 and SRIP Policy 06-05 state an OAB incentive is available to "newly commissioned officers."

	f.  Clarifying language in SRIP Policy 07-05, dated 27 June 2007, states the term "newly commissioned officers" limits OAB incentives to officers who have never held a commission in the Armed Forces of the United States, as opposed to those who have not held a commission in the CAARNG.

	g.  Because the applicant appears to have submitted relevant paperwork to the State Incentives Manager on 7 May 2008, subsequent to publication of the clarifying language, and received payment shortly thereafter, it stands to reason that the narrower interpretation of "newly commissioned officer" applies.

	h.  Because she received her commission as an officer on 13 May 2005, some 7 months prior to her appointment in the CAARNG she was not eligible for the OAB incentive of SRIP Policy 06-04 or SRIP Policy 06-05.

	i.  Because she was not eligible to contract for or receive payment of the OAB incentive, her only favorable remedy is relief from recoupment.

15.  In the processing of this case an advisory opinion was received from the NGB on 24 November 2014.  NGB recommended disapproval of the applicant's request.

	a.  The applicant executed an oath of office as a Reserve commissioned officer upon completion of the ROTC program at the New Mexico Military Institute.  She was appointed a second lieutenant in the CAARNG on 31 January 2006 as an over-strength platoon leader.  On 15 May 2008, she received a $6,000 bonus payment.  A bonus control number was never assigned.  The audit did not reveal any evidence of an incentive offer in New Mexico prior to her joining the CAARNG.  Because she received a commission prior to appointment in the CAARNG she was ineligible to contract for an OAB incentive under either under SRIP Policy 06-04 or SRIP Policy 06-05.

	b.  Army National Guard Officer Incentives Branch determined she was not entitled to an OAB because she had previously been commissioned with no branch in the USAR.  Documentation revealed she received a 2-year scholarship as AOC 31B, military police, which at the time was not a critical skill AOC.  

	c.  An officer must be the primary position holder, not in an over-strength or excess status in an AOC that matches the authorized military grade and skill qualification commensurate with the position for which contractive in order to establish the critical skill requirements on the contract start date.

	d.  To be eligible for the OAB incentive an officer must not have previously received any ROTC scholarship or be serving on a required service obligation as a result of any ROTC scholarship.

16.  The applicant did not submit any comments in response to or rebuttal of the above opinion.

17.  SRIP Policy 06-04 and SRIP Policy 06-05 required the officer to agree to serve in a critical skill as identified by the ARNG.  AOC 31A is not listed on the critical skills listed in either SRIP Policy 06-04 or SRIP Policy 06-05.

18.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) governs policies and procedures for the administration of the ARNG SRIP programs.  Paragraph 3-3 lists requirements an officer must meet at time of commission to be eligible for the OAB.  The following are among those requirements listed to be met at time of commission to be eligible for the OAB:

* must have never held a previous commission as an officer or warrant officer in any of the Armed Forces of the United States
* must be the primary position holder, not in an over-strength or excess status in an AOC that matched the authorized military grade and skill qualification commensurate with the position for which contracting in order to establish the critical skill requirements on the contract start date
* must not have previously received any ROTC Scholarship or be serving on a required service obligation as a result of any ROTC scholarship

19.  Title 37, U.S. Code, section 332 (General bonus authority for officers) provides general bonus authority for officers.

   a.  Section 332(b) (Service Eligibility) states a bonus authorized may be paid to a person or officer only if the person or officer agrees in writing to:

* serve for a specified period in a designated career field, skill, unit, or grade; or
* meet some other condition or conditions of service imposed by the Secretary concerned

   b.  Section 332(d) (Written Agreement) state 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 that specifies the:

* amount of the bonus
* method of payment of the bonus
* period of obligated service
* type or conditions of the service

DISCUSSION AND CONCLUSIONS:

1.  When the CAARNG audited her record the only discrepancy they identified was that there was no bonus addendum to substantiate her incentive payment.   

2.  She had previously received a 2-year ROTC Scholarship and was serving on a required service obligation as a result of that ROTC scholarship when she was appointed in the CAARNG.  She was not eligible for an OAB incentive.

3.  Both SRIP Policy 06-04 and SRIP Policy 06-05 authorized the OAB for newly commissioned officers.  However, she was commissioned in the USAR 7 months prior to her appointment in the CAARNG.

4.  Neither SRIP Policy 06-04 nor SRIP Policy 06-05 show her AOC 31A on the critical skills list. This would make her ineligible for an OAB.

5.  JFH Orders 31-1055, dated 31 January 2006 show she was assigned overstrength as platoon leader (31A).  If her AOC had been on the critical skills list she would have had to been the primary position holder.  This would make her ineligible for an OAB.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20140015574





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ABCMR Record of Proceedings (cont)                                         AR20140015574



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