IN THE CASE OF:	   

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140018864 


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 relief on the repayment of an Officer Accession Bonus (OAB) in the Iowa Army National Guard (IAARNG).

2.  The applicant states, in effect, he submitted a request for exception to policy to the ARNG asking that he not be required to pay back a $10,000.00 OAB.  The National Guard Bureau (NGB) denied his request.  He contends the NGB decision was wrong in that it was based on errors of fact and law.

3.  The applicant provides:

* self-authored statement
* 3 documents from the his record relevant to receipt of the accession bonus
* letter from a civilian medical doctor
* applicant's request for exception to policy (ETP)
* NGB response to applicant's request for ETP
* NGB memorandum addressing policy for Selected Reserve Incentive Program (SRIP)
* Combat Infantryman Badge certificate

CONSIDERATION OF EVIDENCE:

1.  After initially enlisting in the IAARNG on 28 May 2004, the applicant signed an Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract on 24 August 2006.  The educational institution shown was Drake University, the date of education commencing was shown as 24 August 2006, ending 7 May 2008, and the academic major was Law.  The applicant agreed to enlist in the U.S. Army Reserve during schooling, and, on successful completion, to be appointed as a second lieutenant.

2.  On 14 December 2007, Orders 348-3, Department of Military Science, Iowa State University of Science and Technology, show the applicant was discharged from the U.S. Army Reserve to accept a commission in the U.S. Armed Forces.

3.  On 15 December 2007, the applicant signed a document titled "Written Agreement OAB Addendum" wherein he accepted an accession bonus of $10,000.00.

	a.  By signing the OAB addendum, he stated he met eligibility criteria, to include:

* acceptance of an appointment as an officer in the armed forces to serve in the Selected Reserve in a critical officer skill designated by the Chief, ARNG for bonus entitlement (later identified as Area of Concentration (AOC) 11A in the NGB memorandum, dated 19 June 2014, SUBJECT:  Request for Exception to Policy (ETP) for Officer Accession Bonus (OAB) [applicant's name, rank and partial social security number])
* possess the skill designated by the Secretary of the Army for bonus entitlement or agree to accomplish the necessary training to achieve that skill
* not currently receiving financial assistance under chapters 2107, or 2107a of Title 10, U.S. Code (USC) 

	b.  He agreed to serve satisfactorily for six years in the Selected Reserve in the critical skill in which assessed, unless excused for the convenience of the government.

	c.  He acknowledged he was required to satisfactorily complete the service obligation incurred or face possible recoupment of the bonus.  Additionally, he agreed he was required to maintain medical and dental readiness for the entire period of the service obligation, unless the failure was due to reasons beyond his control (e.g., death, injury, or other impairment not the result of misconduct).

	d.  The Bonus Control Number (BCN) is shown with a paragraph and line number, and an effective date of 16 December 2007.

4.  The DA Form 71 (Oath of Office - Military Personnel) available in the applicant's record, while of poor quality, appears to show a signature date of 
15 December 2007.

5.  In a memorandum from U.S. Army Human Resources Command, dated 
28 July 2008, SUBJECT:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, USC 12201 and 12203, the applicant is informed of his appointment as a Reserve commissioned officer of the Army in the grade of second lieutenant.  This appointment is shown as being accepted effective 
16 December 2007.  The applicant was directed to serve as a member of the ARNG in the branch of Infantry.

6.  On 20 October 2009, a memorandum from Headquarters, IAARNG, verified the applicant was qualified in the Infantry branch, with the primary AOC of 11A.

7.  Effective 31 July 2010, the applicant was mobilized and, on 29 October 
2010, was deployed to Afghanistan as part of the 168th Infantry Battalion.  On 
12 January 2011, he sustained a non-combat injury, breaking his leg.  He was evacuated to Germany, then, on 20 January 2011, redeployed and was assigned to the Warrior Transition Battalion, Fort Riley, KS to continue medical care.  Subsequently, on 14 February 2011, this injury was found by the NGB to be in the line of duty.

8.  On 18 May 2011, the applicant's application for appointment in the IAARNG as a Judge Advocate General (JAG) officer was approved.  Orders 
202-007, dated 21 July 2011, IAARNG, confirm the applicant's appointment as a JAG officer in the IAARNG.

9.  On 19 June 2014, the NGB disapproved the applicant's request for ETP.  The NGB contends:

* the applicant signed the OAB Addendum while receiving an ROTC scholarship
* the OAB Addendum was signed before the applicant's accession/appointment
* the applicant's BCN was requested after the date of accession
* the applicant is not serving in the AOC for which he was contracted

10.  Applicant provides:

	a.  A self-authored statement in which he essentially addresses the contentions made by NGB in their denial of his ETP:

* he was released from ROTC on 14 December 2007 and, because he had been released, this made him ineligible to receive ROTC Scholarship funds
* the IAARNG Officer Strength Manager, ostensibly on the basis of guidance from NGB, told ROTC cadets they were eligible for bonuses on the date of their commissioning
* the applicant signed his OAB Addendum on 15 December 2007, the same date he signed the DA Form 71
* the date the BCN was requested was completely out of his control; this action was performed by the Education Services Office, he should therefore not suffer if they did not follow the correct procedure
* the only reason he was unable to complete the full 6 year requirement to serve in the contracted AOC was because of his injury, sustained while deployed
* the applicant's civilian doctor, a retired Army Orthopedic Surgeon, recommended the applicant pursue evaluation by a Medical Evaluation Board, but the applicant felt he should continue his service in the IAARNG; he requested to serve as a JAG officer
* he completed the JAG Basic Course and is currently serving as a JAG officer in the IAARNG

	b.  A letter from the applicant's civilian doctor, a retired Army Orthopedic Surgeon, which essentially states the applicant received orthopedic surgery repairing his broken limb and, as his doctor, has been following his postoperative course.  He anticipates long-term impairment and recommends evaluation by a medical board.

11.  Title 37, U.S. Code, section 308j(b) states:

	a.  Sub-paragraph (1), the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary (A) to 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.

	b.  Sub-paragraph (2), (A) 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; and (B) 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.

	c.  Sub-paragraph (3), 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.

	d.  Paragraph (f) (Relation to Other Accession Bonus Authority), a person may not receive an affiliation bonus or accession bonus under this section and financial assistance under chapter 1608, 1609, or 1611 of Title 10, or under section 302g of Title 37, for the same period of service.

12.  Memorandum from NGB, dated 10 August 2007, updated 15 March 
2010, SUBJECT:  Army National Guard (ARNG) Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 - 30 September 2009 (Policy Number 07-06) with Updates (EIOM's 
09-020, 023, 024, 030, 34, 38, 39, 40, 41, 43, 45, 47, 51, 54, 55, 56, 58, 59, 
60 and 10-011), establishes policy to administer ARNG incentives.  In paragraph 12 (Officer Accession Bonus) the officer must meet certain criteria.

	a.  General criteria:

* never held a commission as an officer or warrant officer
* must sign an OAB Addendum on the date they accept their commission
* must successfully complete Basic Officer Leader Course (BOLC) in the designated AOC
* must not be receiving and will not receive benefits, such as the ROTC Financial Assistance Program under Chapter 2107, Title 
10 USC

	b.  Officer Accession Critical Skill Bonus:

* must agree to serve not less than 6 years
* must serve in the critical AOC for the full length of the contracted term
* must sign a 6 year OAB Addendum to receive the $10,000 bonus

DISCUSSION AND CONCLUSIONS:

1.  In reviewing the requirements of the NGB memorandum that outlines policy: 
for OAB, the applicant met all but one requirement:

* he had never held a commission as an officer
* he signed the OAB Addendum on the date he accepted his commission (based upon the date he signed the DA Form 71)
* he successfully completed the Infantry BOLC
* he was not receiving funds from an ROTC Scholarship at the point he signed the OAB Addendum

2.   The only criterion he did not meet was the requirement to serve the full 6 years in the critical AOC.  The reason, however, is one that falls under the exceptions spelled out in the OAB Addendum; specifically, when the failure to participate satisfactorily is a result of a reason beyond the applicant's control (e.g., injury or other impairment not the result of misconduct).  The injury sustained by the applicant while deployed was of such a nature that, according to his orthopedic surgeon, he would experience long-term impairment.  Based upon the Line of Duty investigation completed on this injury, the NGB rule it had occurred In the Line of Duty (i.e., not as a result of the applicant's misconduct).  

3.  Based upon the foregoing, and for the sake of equity, the applicant's request should be granted.

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 all Department of the Army and state ARNG records of the individual concerned be corrected to show:

* the 15 December 2007 Written Agreement - OAB Addendum, was properly prepared in AOC 11A with appropriate signatures and a Bonus Control Number
* the applicant was appointed in a critical skill upon his appointment in the IAARNG for an OAB in the amount of $10,000.00


* the applicant is eligible for payment of the bonus, out of ARNG funds, in accordance with the Written Agreement - OAB Addendum and should not be required to repay that bonus, or any recoupment action, if started, should be stopped




      ___________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)                                         AR20140018864



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ABCMR Record of Proceedings (cont)                                         AR20140018864



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