IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140016376 


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 her records to show she was entitled to a $10,000 officer accession bonus (OAB) and retention of the $5,000 that she has already been paid.

2.  The applicant states:

   a.  Her records should be corrected to show she was entitled to a $10,000 OAB and she should be allowed to retain the $5,000 she has been paid.  When she was commissioned in the Army National Guard (ARNG), she extended her contract for 2 years in order to receive a $10,000 OAB.  She never received the second installment of the bonus of $5,000 and now, 5 years later, the ARNG is unjustly attempting to recoup the first half of the bonus that she has been paid.

	b.  In 2006, she signed a contract for a 3.5 year Federal (i.e., U.S. Army) Reserve Officers' Training Corps (ROTC) scholarship.  On 22 September 2008, she enlisted and joined the Simultaneous Membership Program (SMP).  That process required that she convert her ROTC scholarship to a Guaranteed Reserve Forces Duty (GRFD) scholarship.  It was explained to her that the GRFD essentially "bought out" her ROTC scholarship.  Upon her commissioning on 2 May 2009, she signed another contract which extended her service time from the standard 4 years active drilling status (ATS) and 4 years individual ready reserve (IRR) status to 6 years of ATS and 2 years of IRR time for a $10,000 OAB.  According to that contract, she would receive $5,000 upon completion of her basic officer leader course (BOLC) and $5,000 at her 3-year mark. 
	c.  Her contract underwent all the necessary eligibility screenings and she was assigned a bonus control number (BCN) as proof of her eligibility.  In 2010, she received the first installation of the bonus as expected.  In November 2010, she accepted a 1-year temporary military technician (MILTEC) position working as a recruiting operations officer at Northern Michigan University (NMU), Marquette, MI.  After accepting the position, she was notified that she would not be receiving the second installation of the bonus because she had violated that clause in her contract.  She admitted fault for not reading the fine print of the contract, did not fight the determination, and decided to continue at the temporary MILTEC position as it was much more financially advantageous for her to be employed for 6 additional months rather than receive the $5,000.  She thought the issue was closed. 

	d.  In spring 2011, she received notice that upon further inspection of her contract, the National Guard Bureau (NGB) was made aware of a date discrepancy and was going to attempt to recoup the first half of the bonus.  She was commissioned on 2 May 2009 but the recruiter made an error and listed the date on the OAB contract as 3 May 2009.  She submitted an exception to policy (ETP) request to correct the date discrepancy the ETP was denied in June 2011.

	e.  The ETP denial stated she became an Active Guard Reserve (AGR) or MILTECH after serving at least 1 day of the contract which violated ARNG Selected Reserve Incentive Program (SRIP) 07-06, updated 1 March 2009.  However, there is nothing in ARNG SRIP 07-06 that makes such a claim.  She does meet the criteria under section 15 which states termination without recoupment is for acceptance of either an indefinite/permanent MILTEC position, a temporary MILTEC position for 180 consecutive days or more, or an AGR position as long as that acceptance of the position occurred on or after 25 February 2010.

	f.  The ETP denial also stated she signed the OAB agreement while on the SMP scholarship and it was signed after her commissioning date, neither of which are authorized in accordance with ARNG SRIP 07-06.  However, section 5 states applicants enlisting under the Officer Candidate School (OCS) enlistment option or who are contracted in the SMP/ROTC are not authorized any incentives with the exception of the OAB upon commissioning.  As previously stated, the error on the OAB agreement was a mistake made by her recruiter and no fault of her own.

	g.  The ETP denial further stated she was still under contract obligation for a ROTC scholarship when she signed the OAB agreement.  Recipients of pre-commissioning compensation under Title 10 U.S. Code (USC) 2107 or 2107a makes a Soldier ineligible for another incentive until the remainder of the service obligation for the ROTC scholarship has been served.  Therefore, for the ARNG to approve her ETP request would be a violation of the law and she would be eligible for another incentive on 1 May 2017, after completion of her 8-year ROTC contract obligation. 

	h.  She acknowledges that she was under an SMP contract.  However, it is not possible for a cadet to be the recipient of a Federal ROTC scholarship and an SMP scholarship at the same time.  She was originally receiving a Federal ROTC scholarship but relinquished it when she became an SMP cadet.  There was no mention of being ineligible for being a prior ROTC scholarship recipient.  She contacted the State Incentives Manager about the mistake and was told that once an ETP is denied by the NGB, they do not open the case again; she was directed to file a claim with the Army Board for Corrections of Military Records. 

3.  The applicant provides:

* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) 
* two DD Forms 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 27 April 2006 and 22 September 2008
* NGB Form 594-1 (Annex B to DD Form 4/DA Form 4836 (SMP Agreement ARNG), dated 22 September 2008
* Cadet Command (CC) Form 203-R (GRFD Scholarship Cadet Contract Endorsement)
* OAB Addendum, dated 3 May 2009
* DA Form 2823 (Sworn Statement), dated 9 December 2013
* four memoranda, dated between 17 February 2009 and 23 June 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant provides and her record contains a DA Form 597-3, dated 27 April 2006, wherein it shows she would be paid an ROTC scholarship for a period of 3.5 academic years.  Her education commenced on 16 January 2006 with a completion date of 2 May 2009 and she was enrolled at NMU, Marquette, MI.

2.  Section 4a (Acceptance of Appointment) of this DA Form 597-3 stated, in part, that she agreed to accept an appointment, if offered, as a commissioned officer in the USAR or ARNG.  She understood that upon appointment, she would incur a total military service obligation not to exceed 8 years and could not resign such appointment before completion; however, the obligation may be met in a variety of ways (emphasis added).

3.  On 27 April 2006, in conjunction with her enrollment in the ROTC scholarship program, she enlisted in the U.S. Army Reserve (USAR) as an ROTC cadet.  She was discharged from the USAR on 21 September 2008.

4.  On 22 September 2008, she enlisted in the Michigan ARNG (MIARNG).  She provides and her record contains NGB Form 594-1, dated 22 September 2008, wherein, in part, it stated that her enlistment in the MIARNG was for the purpose of directly participating in the SMP.  She understood that upon acceptance in the SMP she was not eligible to continue in the ARNG incentive program and would not be entitled to further incentive payments.  Her acceptance into the SMP was based on her desire to volunteer for the program which required enlisted status for eligibility.  She was enlisting for a military occupational specialty (MOS) 21B (Combat Engineer) position in the 107th Engineer Battalion, Ishpeming, MI.

5.  She provides and her record contains a CC Form 203-R, dated 28 October 2008, wherein it stated, in part, that the CC Form 203-R became a part of the DA Form 597-3 between herself and the Professor of Military Science on behalf of the Secretary of the Army.  As a GRFD Scholarship Cadet, she agreed to participate in the SMP…Upon completion of the ROTC program and receipt of a baccalaureate degree, she would be commissioned in the USAR and where possible assigned to a USAR unit or be appointed in the ARNG for assignment to an ARNG unit.  She would then be obligated to serve an initial period of active duty for training (ADT) and perform the remainder of her service obligation in the Reserve Components (RC), as governed by applicable laws.

6.  On 1 May 2009, she was discharged from the MIARNG for the purpose of accepting a commission.  On 2 May 2009, she was appointed as a second lieutenant Reserve officer in the MIARNG and she executed an oath of office on that date.

7.  She provides and her record contains an OAB addendum wherein, in part, it states:

	a.  She agreed to serve in the Selected Reserve for a period of 6 years in area of concentration (AOC)/MOS 21B which was a critical officer skill that was designated for bonus entitlement.

	b.  She was not accepting an appointment as an officer for the purpose of qualifying for a MILTEC position where membership in a Reserve component was a condition of employment.

	c.  She acknowledged she was not currently receiving financial assistance from an ROTC scholarship. 
	d.  She would receive a bonus of $10,000 paid in two installments; the first 50 percent (%) installment would be paid upon completion of the BOLC.  The second and final payment of 50% would be processed on the third year anniversary of the agreement.

	e.  The addendum was signed by the service representative, applicant, and witnessing officer on 3 May 2009 and contains a valid BCN.

8.  She was assigned to the 107th Engineer (EN) Battalion, Ishpeming, MI, in AOC 21B.

9.  Her record contains a transcript from NMU, dated 13 May 2009, wherein it shows on 5 May 2009 she was awarded a Bachelor of Science degree in Geography/Physical with a minor in Military Science and Biology.

10.  She attended and successfully completed the EN BOLC from 3 March to 1 July 2010 at Fort Leonard Wood, MO.  She was awarded AOC 21A (EN, General).

11.  On 13 January 2011, she was assigned to the 1437th EN Company (CO), Sault Saint Marie, MI.  On 2 November 2011, she was promoted to the rank of first lieutenant.

12.  On 19 December 2011, she was assigned to the Joint Force (JF) Headquarters (HQ), MIARNG, Lansing, MI, for the purpose of mobilization.  On 6 January 2012, she entered active duty as a member of her ARNG unit.  She served in Liberia, an imminent danger pay (IDP) area, from 20 January 2012 to 11 February 2013.

13.  On 8 March 2013, she was honorably released from active duty to the control of the ARNG.  She was subsequently assigned to the 1437th EN CO.

14.  On or about 13 August 2013, she transferred to the Kansas ARNG (KSARNG).  She was assigned to the 635th Regional Support Group (RSG), Hutchinson, KS.

15.  The applicant provides a memorandum, dated 3 January 2014, from HQ, 635th RSG, KSARNG, requesting an ETP for the applicant to retain the first half of the OAB.  This memorandum stated that unbeknownst to the applicant her bonus addendum was incorrectly dated 3 May 2009 by her recruiter, a day after her commission date of 2 May 2009.  She served for over 179 days as a temporary MILTECH and was aware that would mean the second half of her bonus would be recouped.  Due to no fault of her own, the ETP should be granted and the first half of the bonus should not be recouped. 

16.  The applicant was promoted to the rank/grade of captain (CPT)/O-3 on 10 June 2014.

17.  The applicant provides a memorandum, dated 19 June 2014, from the NGB denying the ETP for the applicant to retain the $10,000 OAB.  This memorandum stated, in part:

	a.  The applicant became a MILTECH after serving al least 1 day of the contract term she signed an agreement for the OAB while on the SMP scholarship, and her OAB addendum was signed after the commissioned date, all of which were not authorized and violated the ARNG Selected Reserve Incentive Program (SRIP) 07-06, updated, 1 March 2009 to 15 June 2010.

	b.  She was still under contract obligation for a ROTC scholarship when she signed for the OAB.  Soldiers are ineligible for another incentive until the remainder of the service obligation for the ROTC scholarship has been served; therefore, to approve the ETP would be a violation of the law.  She would be eligible for another incentive on 1 May 2017, after completion of her 8 year ROTC contract obligation.

18.  ARNG SRIP Guidance for Fiscal Year (FY) 2009, 1 October 2008 to 30 September 2009 (Policy Number 09-01), updated 1 March 2009, in part, states:

	a.  An OAB is offered to help mitigate a current or projected significant shortage of personnel in the ARNG who are qualified in that AOC or are to be trained in that AOC.  In addition to the general eligibility requirements in paragraph 5 of this policy, the Soldier must have never received and will not receive financial assistance to include Regular Army, USAR, and ARNG ROTC scholarship. 

	b.  To qualify for an OAB the officer must sign the OAB addendum on the date they accept their commission as a second lieutenant.  The State Incentive Manager will verify accession packets as prescribed by State policy for bonus control numbers, accuracy of the bonus addendum, critical skill, bonus unit eligibility, valid position vacancy, and required educational level.

19.  A Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that debt 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 evidence of record confirms the applicant was not eligible for the OAB.  The ARNG Guidance states an OAB is offered to help mitigate a current or projected significant shortage of personnel in the ARNG who are qualified in that AOC or are to be trained in that AOC.

2.  In addition to the general eligibility requirements, such as the requirement for the OAB addendum to be signed on the date of commissioning, the Soldier must have never received and will not receive financial assistance to include Regular Army, USAR, and ARNG ROTC scholarship.  Since the applicant was an ROTC scholarship recipient, she was ineligible for the $10,000 OAB, regardless of when she signed her OAB addendum.  She did not need an OAB incentive to enter the ARNG; her ROTC scholarship already obligated her to serve in the ARNG.

3.  Despite being offered the bonus in error, she received the first half of this bonus and she continues to serve the contractual obligations stipulated in her contract.  She served on active duty in an IDP area for over a year and now she risks the recoupment of the first half of this bonus.  This is unjust.  A debt repayment is not 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. 

4.  She should not be penalized for errors committed by the ARNG and the State Incentives Manager.  Therefore, her records should be corrected to show she submitted an exception to policy to the NGB to retain the first half of the $10,000 bonus and the NGB approved her request.  

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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

* showing she submitted an exception to policy by the NGB to retain the first half of her bonus ($5,000)
* showing the NGB timely received her exception to policy request, approved it, and authorized her to retain the first half of this bonus

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 correcting her records to show she was entitled to a $10,000 bonus.



      _______ _   _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)                                         AR20140016376





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ABCMR Record of Proceedings (cont)                                         AR20140016376



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