RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2008 DOCKET NUMBER: AR20080005709 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Director Analyst The following members, a quorum, were present: Chairperson Member Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his record be corrected to show entitlement to an $8,000.00 HIGRAD bonus based on his successful completion of Officer Candidate School (OCS) and commissioning as an officer. 2. The applicant states, in effect, that the Army clearly intended to provide an enlistment bonus of $8,000.00 for all applicants enlisting for the Officer Candidate School (OCS) enlistment option. He has been notified that he will not be paid the promised bonus based on a legal interpretation of Title 37, United States Code, Section 309. 3. The applicant provides a copy of his enlistment contract documents and commissioning documents. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR Delayed Entry Program on 23 March 2006 under the United States Army Officer Enlistment Program to attend the OCS course and the United States Army Incentive Enlistment Program (US Army OCS Bonus). He subsequently enlisted in the Regular Army on 26 April 2006 and entered into OCS training. The applicant was commissioned a Second Lieutenant on 12 October 2006. 2. Headquarters, Department of the Army, Enlisted Accessions Division (DAPE-MPA) Message, released on 7 April 2005, Subject: RA Enlistment Incentive Program Change Effective 11 April 2005, implemented the authority to utilize HIGRAD bonus for RA Officer Candidate School accessions and changes lump sum bonus authority. The message stated, in pertinent part, that all applicants enlisting for the OCS enlistment option or those applicants who previously contracted and depart for active duty for the OCS enlistment option after the effective date of the message will receive a bonus not to exceed $8,000.00 based on possessing a four-year college degree or higher. Eligible applicants may receive only one HIGRAD bonus. This bonus is the only authorized bonus incentive for OCS enlistees. The bonus is payable in a lump sum upon successful completion of OCS and commissioning as an officer in accordance with applicable provisions. 3. In an advisory opinion, dated 20 April 2006, the Army G-1, Director of Military Personnel Management, stated that due to the urgent need for OCS applicants, the Army implemented an enlistment bonus of $8,000.00 for OCS applicants as an extension of the current policy of paying an enlistment bonus to all college graduates under the High Grad (HIGRAD) bonus. The Army began contracting for this bonus on 11 April 2005 and officially suspended the bonus on 6 April 2006. 4. The advisory opinion stated that the Army implemented the OCS enlistment bonus under the existing statute governing enlistment bonuses as defined in Section 309 of Title 37, United States Code. The Defense Finance and Accounting Service (DFAS) requested an advisory legal opinion, and the Office of the General Counsel (OGC) opined that paying this enlistment bonus to officer candidates is not in keeping with the intent of the above cited statute, as interpreted by previous Comptroller General opinions. 5. The advisory opinion further stated that the Army, in good faith, contracted with these Soldiers and agreed to pay them this bonus. Granting relief to them for the bonus listed in their contract is in the best interests of the Army as it will positively impact the Army’s recruiting efforts and the Army’s Global War on Terrorism mission. It is also the equitable thing to do for the officers involved. 6. Title 37 USC section 330 further provides statutory authority for the Army's program to pay an $8,000.00 bonus to enlistees who agree to be accessed into the service to attend Officer Candidate School and upon successful completion, accept a commission, and serve on active duty for a specified period of time. Recoupment is authorized if the officer does not complete their active duty commitment in accordance with Title 37 USC section 303a (e). Agreements must be entered into before 1 January 2008. It also authorizes payment on agreements entered into beginning on 1 April 2005 and ending 6 April 2006. DISCUSSION AND CONCLUSIONS: 1. The evidence of record and the advisory opinion from the G-1 clearly show the Army intended that the applicants be authorized the $8,000.00 enlistment bonus. 2. The evidence of record confirms that the applicant enlisted for the intended enlistment bonus under the United States Army Officer Enlistment Program for the OCS course. Although earlier cases considered by this Board involved Regular Army enlistment contracts executed within the window of eligibility, enactment of 37 USC section 330 has authorized retroactive payment of this bonus based upon the agreements to complete Officer Candidate School, accept a commission or appointment as an officer, and to serve on active duty as a commissioned officer for a specified period. In this case these agreements are contained in the Delayed Entry Program contract which was executed during the window of eligibility. The applicant made a career decision based on this contract and the Army’s failure to pay this bonus detrimentally impacted the applicant through no fault of his own. The record also verifies that he completed OCS training and was commissioned as a Second Lieutenant. In view of the detrimental reliance in this case, it is appropriate that the Army Board for Correction of Military Records pay from its funds this contracted bonus. The applicant’s enlistment contract should be amended to show that he enlisted in the Regular Army with an entitlement to an $8,000.00 HIGRAD bonus upon successful completion of OCS training and commissioning as an officer. 3. Title 10, U. S. Code, section 1552, the law which provides for the Board, states that “The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.” 4. In view of the foregoing the applicant’s record should be corrected accordingly. BOARD VOTE: _____X__ ___X___ ____X___ GRANT FULL RELIEF ________ ________ ________ 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 relief as a matter of equity. As a result, the Board recommends that the applicant’s enlistment contract be amended to include entitlement to an $8,000.00 enlistment bonus upon successful completion of OCS and commissioning as an officer, and the sentence “If the enlistment bonus in the amount of $8,000.00 is not authorized for payment by the Department, the Army Board for Correction of Military Records may pay the bonus, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.” 2. The Defense Finance and Accounting Service shall remit payment to the applicant the total amount of his enlistment bonus in a lump sum payment of $8,000.00 to which he is entitled as a result of this correction. _________X_____________ CHAIRPERSON INDEX CASE ID AR20080005709 SUFFIX RECON DATE BOARDED 20080501 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY MS. MITRANO ISSUES 1. 112.1100 09S Project – OCS Bonus 2. 3. 4. 5. 6. ABCMR Record of Proceedings (cont) AR20080005709 2 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET, 2ND FLOOR ARLINGTON, VA 22202-4508