IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140014535 


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 $6,000 OAB.

2.  The applicant states, in effect, that his OAB is missing from his military records resulting in an action to recoup his $10,000.00 bonus.  He was recently informed that his critical area of concentration (AOC) OAB was distributed to him in error and that a recoupment will be executed for the full amount.  He appealed this decision to the California Army National Guard (CAARNG) Soldier Incentives Center, which was denied.

3.  Upon graduation from Brigham Young University, he was branched into aviation and commissioned in 2005.  He then transferred to the CAARNG.  Due to the backlog of officers waiting to attend the Officer Basic Course (OBC), and due to no fault of his own, he was placed in an over-strength position and required to wait for a date to attend OBC.  One of the reasons he was originally told he is not authorized an OAB is because he was placed in an over-strength position.  The battalion needed to fill its primary positions with currently 
OBC-qualified officers.  Because he was still waiting to go to OBC, he was not branch qualified and was put in an over-strength position pending his attendance at OBC.

4.  On 3 June 2007, he was enrolled in the Basic Officer Leader Course (BOLC II) at Fort Sill.  Upon completion of BOLC II he was sent to Fort Rucker to start the OBC.  On 18 October 2007, he was informed by his next company commander that officers who were commissioned in 2005 and 2006 were supposedly eligible for a $10,000 OAB.  He directed the applicant to contact the accessions task force office for more details.  He did so by email later that same day.  He asked about the OAB and was informed he could get the OAB.  He was subsequently sent the OAB Addendum, which he signed and returned.  He was then directed to provide a copy of his DA Form 1059 (Academic Evaluation Report (AER)) upon completion of OBC, which he did.  Even with the long wait between his commissioning and completion of OBC, it still seemed reasonable that there would be no problem with the OAB because he received a commission during this period and the incentives manager stated that he was eligible.  He did not receive an OAB Addendum by email or hardcopy with the incentives manager's signature.  He did not push for a signed copy of the OAB Addendum because it was unreasonable to think it would be processed without being signed.  

5.  It now appears the OAB is being taken away from him because he cannot produce a properly-signed copy of the OAB Addendum.  The OAB Addendum was supposedly signed by the accession task force officer and has since disappeared.  He also apparently signed the addendum too late, as evidenced by the dated signature.  He made no attempt to hide the fact that he signed it in 19 October 2007.  Below this date he wrote his commissioning/ appointment date of 22 April 2005.  Again, nothing was said to him about this being incorrect, or that he was too late.  Upon notification of an audit, he requested the documents be provided to him from the CAARNG Soldier Incentives Center audit team.  In them he saw a document titled "Update SRIP Contract."  This paper showed the OAB should have actually been for $6,000.00 and that validation of the bonus was completed on 19 October 2007.  

6.  He feels he acted in good faith.  He applied for a critical AOC OAB that he understood was authorized.  The incentives manager assured him that he was authorized the OAB.  He completed the OAB Addendum and signed it as required.  He later provided the accessions task force office with a copy of his AER.  It was reasonable to believe that all of the paperwork was properly completed, submitted, received, and processed because he received the $10,000 OAB.  He is not requesting to keep the full $10,000 OAB because it appears it should have only been $6,000.00.  Therefore, in spite of the 
fully-signed version of his OAB Addendum disappearing from the accessions task force office, he is requesting that the recoupment efforts be reduced to no more than $4,000 because he believes he is entitled to the $6,000 critical AOC OAB.



7.  The applicant provides copies of:

* DA Form 71 (Oath of Office - Military Personnel) dated 22 April 2005
* Orders 262-1104, CAARNG, dated 19 September 2005
* Orders T-05-707087, U.S. Army Human Resources Command (HRC), dated 15 May 2007
* Officer Accession Agreement, dated 19 October 2007
* DA Form 1059, dated 20 August 2008
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 8 November 2009
* Memorandum, Request for Documentation Supporting Your Incentive, dated 12 December 2012
* Defense Finance and Accounting Service (DFAS) Payments and Contract Actions, printed 19 November 2012 (3 pages)
* Update SRIP Contract Information, dated 19 October 2007, printed            3 December 2012
* Incentives Task Force Bonus Audit Form, printed 5 December 2012         (3 pages)
* Letter, CAARNG, Re-audit of OAB, dated 18 June 2014

CONSIDERATION OF EVIDENCE:

1.  On 22 April 2005, the applicant took his oath of office as a Reserve commissioned officer in the rank of second lieutenant (2LT), pay grade O-1.

2.  On 15 September 2005, the applicant was appointed a 2LT in the ARNG and assigned for duty with the CAARNG.

3.  Orders T-05-707087, HRC, dated 15 May 2007, directed the applicant to report no later than 3 June 2007 for enrollment into the BOLC at Fort Sill, OK.

4.  On 22 July 2007, the applicant was promoted to first lieutenant (1LT), pay grade O-2.

5.  A copy of the Officer Accession Agreement, as provided by the applicant, shows he agreed to accept an appointment as an officer in the armed forces and to serve in a critical skill that is designated for bonus entitlement within the ARNG.  He acknowledged with his initials that he was being accessed into a Modified Table of Organization and Equipment unit that is not identified as an National Guard Bureau (NGB) critical unit.  He would receive a bonus of $10,000.00 paid in two installments of 50 percent each.  The applicant signed this form and dated it 19 October 2007.  No other signatures appear on the form and there is no bonus control number indicated.
6.  A DA Form 1059, dated 20 August 2008 shows that the applicant completed the Aviation BOLC.

7.  On or about 16 October 2008, the applicant was called to active duty for service in Afghanistan.  He completed his required active duty service and was released from active duty on 8 November 2009.

8.  A memorandum from Headquarters, CAARNG, dated 12 December 2012, informed the applicant that the CAARNG had audited his OAB and noted that his payment of $10,000.00 violated NGB policy.  Accordingly, the $10,000.00 was to be recouped in full.

9.  In the processing of this case, an advisory opinion was obtained from the Soldier Incentives Assistance Center (SIAC), CAARNG.

	a.  The SIAC had audited the applicant's OAB record and determined that even though he was eligible to contract for the OAB, he was not eligible to receive payment.  There is no evidence of fraud on the part of the applicant.

	b.  On 22 April 2005, the applicant was appointed a 2LT upon completion of the Reserve Officers’ Training Corps (ROTC) program.  He was subsequently appointed a 2LT in the CAARNG in an over-strength status.

	c.  On 10 November 2008, the applicant received the primary skill identifier 15A and received four payments of $5,000.00 each on 26 September, 1, 3, and 
8 October 2008 for a total of $20,000.00.  $10,000.00 was recouped in various increments between 12 and 31 October 2008.

	d.  There is no documentation on file for the payments.  In response to SIAC, the applicant provided an OAB Addendum signed only by him on 19 October 2007.  He also indicated his date of appointment was 22 April 2005.  There was no witnessing officer or service representative indicated on the document.

	e.  The applicant was not eligible to receive payment of the OAB because he had not properly completed a bonus addendum in accordance with the governing regulation.  Such addendum also must have been signed by all parties prior to their commissioning or appointment.

	f.  Additionally, the applicant had received payments in excess of the $6,000.00 statutory limit for the OAB incentive that was in effect at the time of his appointment in 2005.  This limit was later raised to $10,000.00.

	g.  Although the applicant was eligible to contract for an OAB incentive at the time of his appointment, he did not do so.  The subsequent contract he submitted is in violation of regulatory requirements.  Therefore, the only favorable remedy is relief from recoupment.

10.  On 12 November 2014, the Chief, Personnel Policy Division, NGB, recommended the applicant be granted partial relief from recoupment of the $10,000.00 OAB by allowing him to retain $6,000.00 of the OAB because he was eligible for that amount at the time.  His contract addendum erroneously stated $10,000.00.  It appeared the applicant had acted in good faith and the erroneous contract is the result of failure on the part of officials to follow proper procedures.  A memorandum from the Office Of The Under Secretary of Defense, Subject: Repayment of Unearned Portions of Bonuses, Special Pays, and Educational Benefits or Stipends, dated 21 May 2008, states, "A member who enters into a written agreement with specified conditions for receipt of a pay or benefit, is entitled to the full amount of the pay or benefit if the member fulfills the conditions for that pay or benefit."  In applying this policy to the applicant's case, the written agreement should be based on the 2005 bonus amount.

11.  On 14 November 2014, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing he completed an OAB Addendum and is authorized to retain a $6,000 OAB.

2.  The available evidence shows that the applicant was eligible at the time of his appointment in 2005 to contract for an OAB in the amount of $6,000.00.  Unfortunately, due to the failure of officials to follow proper procedures the applicant was not able to submit a properly completed OAB addendum and to receive the appropriate OAB payment.  There is no evidence that the applicant was at fault for any part of this failure.  He simply acted in good faith and relied on the knowledge and expertise of officials who should have known better.



3.  In view of the above, it would be appropriate to correct the applicant's records by showing he had properly and timely contracted for an OAB in the amount of $6,000.00 in conjunction with his original appointment.  Furthermore, recoupment action should only take back that portion of OAB payments that exceed $6,000.00.

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 State ARNG records of the individual concerned be corrected by:

	a.  showing that the applicant properly and timely signed an Officer Accession Bonus Addendum that was prepared in accordance with the governing regulations and was subsequently processed in a timely manner by the appropriate officials; and

	b.  auditing the applicant's military pay records, in particular, the recoupment action concerning this bonus, to ensure he retains the $6,000.00 bonus that was in effect at the time of his appointment.




      ___________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)                                         AR20140014535





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ABCMR Record of Proceedings (cont)                                         AR20140014535



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