BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20140018999 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20140018999 BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. If the applicant desires to request separation based upon a defective commission as a result of a material misrepresentation by recruiting personnel, he may submit a voluntary request for separation within 90 days of being notified of the Board's approved recommendation. If he chooses to submit a voluntary request for separation, he should be released from his remaining service obligation and be allowed to resign his commission without prejudice. __________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. BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20140018999 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 records to show he is authorized to receive both the Officer Accession Bonus (OAB) and Student Loan Repayment Program (SLRP) incentives simultaneously or complete voidance of his contractual obligation in the alternative. 2. The applicant states: a. His contract for Officer Candidate School (OCS) was written in such a way that it is impossible to receive both incentives because of public law. He would like to receive both incentives for completing his obligation as contracted. The contract obligates him for many years of service, but the Army is not obligated to fulfill any of the promises offered because the contract is not written properly and he was told the incentives were offered in error. b. He signed a contract addendum for $10,000.00 in SLRP incentives and a $10,000.00 OAB for completing OCS. After graduating from OCS, he was told he could not receive both incentives as they were offered in error. He was also told the OAB was not payable until completion of the Basic Officer Leaders Course (BOLC). The contract does not tie the incentives to his commissioning branch or completion of BOLC. c. The Army recruiting website states the bonus is payable after completion of OCS and commissioning and states the member must be in an eligible area of concentration (AOC). His contracted AOC is 09S (Commissioned Officer Candidate) and he was commissioned in this AOC. The website was quickly changed after he brought the discrepancy to light and now mentions branch. d. He transferred to a new branch only after being denied the OAB. He chose to branch transfer because he was not scheduled for BOLC after completion of OCS and he was told there was a long wait for Engineer BOLC. He chose to transfer to another branch because he would not be eligible for promotion to first lieutenant until he completed BOLC and the available class dates were too far in the future. e. Everyone acknowledges that both incentives were offered in error but offered no remedy. He continued to pursue the OAB by requesting an exception to policy. He was denied the OAB and SLRP based on his branch transfer. Neither his contract nor the addendum mention a branch requirement. The Methods of Fulfillment section only mentions AOC 09S and the unit of assignment. He is currently assigned to the contracted unit in AOC 01A (Officer Generalist) (meaning branch immaterial) which was his original position. He is currently working in the location and position identified in his contract. f. The OAB addendum includes a section asking if he had received or will receive financial assistance under several chapters of U.S. Code. He specifically inquired about this provision because he has prior service and receives benefits through the GI Bill. He was told this did not apply to him by a master sergeant at the Military Entrance Processing Station. Most Soldiers do not know U.S. Code and it was not made available for review. This section also makes it impossible to receive the entitlements together, even though they are clearly offered together. g. He compares the contract to a "bait-and-switch" tactic. He feels the incentives were offered in error and the recruiter believed the entitlements were legitimate. He took a very large pay cut to join the U.S. Army Reserve (USAR) and attend both basic combat training (BCT) and OCS in pay grades E-4 and E-5. He anticipated the bonuses helping to make up for the loss. This has caused a hardship on his family. He believes he was promised the incentives and should receive them. The contract is obviously unfulfillable in its current state. There is no way to receive both incentives. He can't find anywhere in the contract that states his commissioning branch is an issue. He fulfilled every requirement stated within the contract. He would like to receive the incentives offered or completely void his entire contractual obligation. 3. The applicant provides: * U.S. Army military bonuses website screen shot * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 10 November 2010 * DA Form 3540 (Certificate and Acknowledgement of USAR Service Requirements and Methods of Fulfillment – Reserves Annex), dated 28 April 2011 * SLRP Addendum, dated 28 April 2011 * Selected Reserve Officer Accession Incentive Program – Accession Bonus Addendum, dated 28 April 2011 * email, dated 18 April 2012, subject: OAB for (Applicant) * memorandum from Headquarters, U.S. Army Reserve Command (USARC), dated 22 May 2012, subject: Branch Transfer of (Applicant) * Headquarters, 1st Battalion, 323d Regiment, 95th Division (Institutional Training), memorandum for USARC G-1, dated 14 August 2012, subject: Request Exception to Policy for Accessions Bonus and Student Loan Repayment, (Applicant) * self-authored memorandum for record, dated 2 October 2012, subject: Nonpayment of OAB for (Applicant) * Headquarters, 98th Training Division (Initial Entry Training), memorandum for Commander, 108th Training Command (Initial Entry Training), dated 24 October 2012, subject: Exception to Policy Request for Accessions Bonus and Student Loan Repayment in Regards to (Applicant) * Headquarters, 108th Training Command (Initial Entry Training), memorandum for USARC Incentive Branch, dated 26 October 2012, subject: Exception to Policy OAB for (Applicant) * Headquarters, USARC, memorandum for 108th Training Command (Initial Entry Training) G-1, dated 20 December 2012, subject: Exception to Policy for (Applicant) * email from USARC Office of the Inspector General, dated 20 June 2013, subject: Inquiry Response * Headquarters, USARC, letter to Congressional representative, dated 13 May 2014 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving in the USAR in the rank of first lieutenant in the Military Intelligence Corps. 2. On 10 November 2010, he enlisted in the USAR for a period of 6 years beginning in pay grade E-4. There is no evidence indicating he completed any addenda in connection with his enlistment at this time. 3. Section IV (Service Obligation) of his Reserves Annex, dated 28 April 2011, shows he acknowledged the following in connection with his enlistment in the USAR: * he enlisted in the 1st Battalion (Basic Combat Training), 323d Regiment, in unit vacancy military occupational specialty (MOS) 09S under the prior service program * he had been assured of attending the school/course for MOS 09S * he must successfully complete training, to include BCT and OCS, to become eligible for a commission * he would accept a branch in accordance with the unit vacancy for which he was enlisting * he would be required to serve 8 years in the USAR and not less than 6 years in a troop program unit upon commissioning as prescribed by law * his enlistment in the USAR OCS Program assured him that he would be commissioned in the USAR upon completion of required training * he was authorized the following programs and/or incentives – * Commissioned OAB – $10,000.00 * SLRP – $10,000.00 prior service 4. Section IX (Addendums) of his Reserves Annex, dated 28 April 2011, shows the following addenda were attached and part of his enlistment agreement: * SLRP Addendum * OAB Addendum * Selected Reserve Montgomery GI Bill 5. Section III (Acknowledgement) of his SLRP Addendum, dated 28 April 2011, shows he acknowledged he was contracting to serve in MOS 09S in which he was qualified and that Headquarters, Department of the Army, has approved for a maximum of $10,000.00 in loan repayments. 6. Section VII (Termination) of his SLRP Addendum, dated 28 April 2011, shows he understood the terms of the agreement and his entitlement to loan repayment under the SLRP would be terminated if he moved to an MOS or reclassified in an MOS other than that for which contracted. 7. Section III (Acknowledgement) of his OAB Addendum, dated 28 April 2011, shows he acknowledged he was not currently receiving financial assistance under chapters 1608, 1609, 1611, 2107, or 2107A of Title 10, U.S. Code, or special pay under section 302g of Title 37, U.S. Code, and would not receive such assistance during the period of the agreement. 8. Section IV (Obligation) of his OAB Addendum, dated 28 April 2011, shows he was enlisting in the 1st Battalion (Basic Combat Training), 323d Regiment, for assignment in MOS 09S for the complete period in the Selected Reserve according to his written agreement in the critical skill in which accessed. He would receive a bonus in the amount of $10,000.00 paid in one lump sum upon successful completion of the Officer Basic Course (currently known as BOLC). 9. He completed BCT and OCS during the period 8 August 2012 through 25 January 2012. 10. On 26 January 2012, he was appointed as a Reserve commissioned officer in the rank of second lieutenant in the Engineer Corps. 11. He provided email correspondence from the USAR Pay Center, dated 18 April 2012, stating he had not received an OAB and was not AOC qualified for or entitled to an OAB at that time. The lead military pay technician advised the USARC military pay technician to proceed with processing the SLRP incentive. 12. He provided a memorandum from the Chief, Accession and Training Branch, USARC G-1, dated 22 May 2012, subject: Branch Transfer of (Applicant), approving his request to transfer from the Engineer Corps to the Military Intelligence Corps. 13. He provided a memorandum from the Commander, Headquarters, 1st Battalion, 323d Regiment, 95th Division (Institutional Training), dated 14 August 2012, subject: Request Exception to Policy for Accessions Bonus and Student Loan Repayment, (Applicant), requesting an exception to policy to allow the applicant to receive both the OAB and SLRP incentives based on the fact that he was not properly educated and signed a contract in good faith for both incentives. 14. He provided a self-authored memorandum for record, dated 2 October 2012, subject: Nonpayment of OAB for (Applicant), stating he was informed that he was not eligible to receive both the OAB and SLRP incentives shown in his USAR OCS contract. He was never informed that he must choose only one. He enlisted in the USAR in good faith that his contract was valid and he was entitled to both incentives for his 6-year commitment. 15. He provided a memorandum from the Deputy Chief of Staff, G-1, Headquarters, 98th Training Division (Initial Entry Training), dated 24 October 2012, subject: Exception to Policy Request for Accessions Bonus and Student Loan Repayment in Regards to (Applicant), stating the applicant signed the OAB and SLRP addenda in good faith. There is no language in any of these documents stating only one of the two incentives can be accepted. He requested approval of an exception to policy to allow the applicant to receive both incentives. 16. He provided a memorandum from the Command Executive Officer, Headquarters, 108th Training Command (Initial Entry Training), dated 26 October 2012, subject: Exception to Policy OAB for (Applicant), recommending approval of an exception to policy to allow the applicant to receive the OAB in addition to the SLRP incentive. He stated the applicant returned to the Military Entrance Processing Station prior to attending OCS and the master sergeant produced addenda for the $10,000.00 OAB and the $10,000.00 SLRP incentive for MOS 09S which had been approved as a bonus MOS while assigning him to the USAR. The applicant completed OCS on 25 January 2012 and was commissioned as a second lieutenant on 26 January 2012, fulfilling his requirements to remain eligible for his incentives. When the applicant's unit processed his OAB, the USARC G-1 Incentives Branch stated he was not eligible to receive an OAB since he previously received SLRP payments. He would need to submit a request for an exception to policy to receive his OAB. The Command Executive Officer recommended approval of an exception to policy to allow the applicant to receive the OAB and continued use of his SLRP incentive. The applicant accepted the incentives in good faith and completed his obligations and requirements to earn the incentives. 17. He provided a memorandum from the Acting Chief, Manning Division, USARC G-1, dated 20 December 2012, subject: Exception to Policy for (Applicant), stating the applicant's request for an exception to policy was disapproved. The applicant enlisted in MOS 09S for a $10,000.00 OAB and a $10,000.00 SLRP incentive on 10 November 2010. At the time of his enlistment, the U.S. Army Recruiting Command offered both incentives to qualified applicants in error. Public law prohibits Soldiers who are or will receive financial assistance under Title 10, U.S. Code, chapter 1609 (Education Loan Repayment Programs), from receiving an OAB. The applicant should have been eligible for only one of the incentives. 18. He provided email correspondence from the USARC Office of the Inspector General, dated 20 June 2013, subject: Inquiry Response, stating a case was created and the Office of the Inspector General conducted an assistance inquiry to address his concerns. The inquiry was completed and the findings were included in an attached memorandum. However, the memorandum was not provided for review. 19. U.S. Army Human Resources Command Orders B-09-306015, dated 14 September 2013, promoted him to the rank of first lieutenant in the Military Intelligence Corps effective 25 July 2013. 20. He provided a letter from the USARC Deputy Chief of Staff, G-1, to his Congressional representative, dated 13 May 2014, informing the representative that the applicant was assigned to a unit within the 108th Training Command. USARC research determined the applicant is not entitled to receive both the OAB and SLRP incentive in combination. Public law prohibits Soldiers who are receiving or will receive financial assistance under Title 10, U.S. Code, chapter 1609, from receiving the OAB. The U.S. Army Recruiting Command has made the necessary changes to their systems which should prevent this error from occurring in the future. In addition, the applicant enlisted in the Commissioned Officer Candidate Program (MOS 09S). Soldiers who select this program are eligible for an incentive if they elect one of the AOCs listed in the approved Selected Reserve Incentive Program at the time they contract. The applicant's initial AOC 12A (Engineer Officer) was on the approved Selected Reserve Incentive Program list; however, the applicant elected to branch transfer to AOC 35D (All-Source Intelligence Officer) which was not on the approved list. His transfer negated any incentive he may have been entitled to receive. If the applicant believes a breach in contract occurred, he may elect one of the following options: * remain in his assigned unit as a drilling Reservist without receipt of either incentive * request discharge in accordance with Army regulatory guidance * apply to the Army Board for Correction of Military Records to pursue any perceived injustices REFERENCES: 1. Title 10, U.S. Code, chapter 1609, provides that the Secretary of Defense may repay any loan incurred for educational purposes made by a lender in the case of any person for service performed as a member of the Selected Reserve of the Ready Reserve of an Armed Force in a Reserve Component and in an officer program or military specialty specified by the Secretary of Defense. 2. Title 37, U.S. Code, section 308j, provides that the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to accept an appointment as an officer in the Armed Forces; and to serve in the Selected Reserve of the Ready Reserve in a skill to mitigate a current or projected significant shortage of personnel for a period specified in the agreement. 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 this title for the same period of service. DISCUSSION: 1. The applicant requests correction of his records to show he is authorized to receive both the OAB and SLRP incentives simultaneously or complete voidance of his contractual obligation in the alternative. He contends his contracted AOC was 09S and he was commissioned in this AOC. He states the contract does not tie the incentives to his commissioning branch or completion of BOLC. 2. The evidence shows he enlisted in MOS 09S and completed BCT and OCS. Upon completion of OCS, he was commissioned as an Engineer Corps officer in AOC 12A based on the needs of the Army. AOC 12A was on the approved Selected Reserve Incentive Program list. 3. His SLRP Addendum shows he acknowledged he understood his entitlement to loan repayment under the SLRP would be terminated if he moved to an MOS or reclassified in an MOS other than that for which contracted. 4. His OAB Addendum shows he acknowledged he would receive an OAB in one lump sum upon successful completion of the Officer Basic Course (currently known as BOLC). 5. His OAB Addendum also shows he acknowledged he was not currently receiving financial assistance under Title 10, U.S. Code, chapter 1609, and would not receive such assistance during the period of the agreement. 6. The evidence also shows – and he acknowledges – he voluntarily requested transfer to the Military Intelligence Corps in AOC 35D to allow him to complete a BOLC for earlier promotion eligibility. By transferring to another branch, he negated any incentive he may have been entitled to receive. 7. The evidence of record shows he was offered both the OAB and SLRP incentives in connection with his enlistment in the USAR, albeit erroneously, and he entered into these agreements in good faith. Nevertheless, public law prohibits receipt of both incentives for the same period of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140018999 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140018999 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2