BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150010161 BOARD VOTE: __x______ __x______ __x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150010161 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the "Written Agreement – Officer Accession Bonus Acknowledgement" was properly signed by a witnessing officer on 30 November 2009; and b. showing he is fully eligible for an OAB in the amount of $10,000, in accordance with the Army Reserve Fiscal Year 2009 2nd Half Selected Reserve Incentive Program Policy Guidance through 30 September 2009, dated 23 June 2009 and extended by memorandum, dated 10 August 2009. c. showing an exception to policy was approved by the U.S. Army Reserve Command and processed for payment in a timely manner. __________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: 9 August 2016 DOCKET NUMBER: AR20150010161 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 his record to show his eligibility for a $10,000 officer accession bonus (OAB) that he contracted for as a member of the United States Army Reserve (USAR). 2. The applicant states, in effect, he has applied several times for his OAB and it has been disapproved for multiple issues/document conflicts. He wishes to have this situation resolved. He has been an Army engineer officer since 2010 with no unfavorable actions. 3. The applicant provides: * DD Form 214 (Certificate or Release or Discharge from Active Duty) for the period ending 1 October 2010 * a memorandum issued by Headquarters, USAR Command (USARC), Fort Bragg, NC, subject: Exception to Policy (ETP) for (Applicant), dated 16 March 2015 * DA Form 71 (Oath of Office - Military Personnel), dated 10 May 2010 * Orders 10-131-00021 issued by Headquarters, USARC, Fort McPherson, GA, dated 11 May 2010 * Written Agreement – Officer Accession Bonus Acknowledgement, dated 30 November 2009 * DA Form 4856 (Developmental Counseling Form), dated 30 November 2009 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 22 August 2007 * a memorandum issued by the Office of the Deputy Chief of Staff, G-1, Washington, DC, subject: Change in Policy Governing Bonus Recoupment, dated 14 August 2008 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. While serving in an enlisted status in the USAR, the applicant submitted a DA Form 61 (Application for Appointment) on 6 November 2009, wherein he requested appointment as a commissioned officer in the USAR. 3. He provides a document entitled "Written Agreement – Officer Accession Bonus Acknowledgement," wherein he acknowledged that in connection with his appointment as an officer and his agreement to serve with the USAR under the Selective Reserve Incentive Program (SRIP), he met the OAB eligibility criteria and: a. He agreed to accept an appointment as an officer in the armed forces to serve in the Selected Reserve in a critical officer skill that was designated for bonus entitlement by the Secretary of the Army. b. He was not being accessed for continuous active duty service. c. He possessed a skill designated by the Secretary of the Army for bonus entitlement or he agreed to accomplish the necessary training prescribed by the Secretary of the Army to achieve the designated skill within 36 months of appointment. d. He agreed to serve in the Selected Reserve for 6 years, the full period of this agreement. e. He would receive a bonus of $10,000 paid in one lump sum upon his successful completion of OBC/WOBC. 4. This document was signed by a service representative and the applicant on 30 November 2009; however, it was not signed by a witnessing officer. On the same day, he was counseled by the service representative on his understanding and eligibility requirements of the OAB per message HQDA, DAPE-MPA, 260353Z (USAR Officer Direct Commission). He further initialed, where appropriate, acknowledging the OAB was based on his appointment in AOC 21B (Combat Engineer). 5. Orders 10-131-00021, issued by Headquarters, USARC, Fort McPherson, GA on 11 May 2010, honorably discharged him from the USAR effective 9 May 2010. These orders contained additional instructions that stated his enlistment in the USAR on 12 March 2002 was terminated on the effective date of the order, preceding the date of his appointment as an officer in the USAR. 6. A DA Form 71 shows he swore the oath of office as a Reserve commissioned officer in the rank/grade of second lieutenant on 10 May 2010. 7. Orders C-05-007866, issued by U.S. Army Human Resources Command (HRC), St. Louis, MO on 25 May 2010, reassigned him in the USAR by reason of appointment in the rank of 2LT, effective 10 May 2010. 8. A DA Form 1059 (Service School Academic Evaluation Report) shows he completed the Engineer Basic Officer Leader Course (BOLC), class 07-10 on 1 October 2010. The form shows his AOC as 21A (Engineer, General). 9. A DD Form 214, for the period ending 1 October 2010, shows he was honorably released from active duty training by reason of completion of required active service. It confirms he was awarded AOC 21A. 10. In an ETP memorandum, dated 16 March 2015, as provided by the applicant and contained in his record, the Chief, Manning Division, Headquarters, USARC opined the following: a. The applicant's request for an exception to policy was disapproved. The applicant was commissioned in the USAR on 10 May 2010 in AOC 12A (Engineer Officer) and completed a Written Agreement – Officer Accession Bonus Acknowledgement Form on 6 November 2009. b. The applicant's AOC 12A was not eligible for an incentive in accordance with the SRIP FY09 Extension. Therefore, the OAB was not authorized. c. The applicant may elect to apply directly to the ABCMR to pursue any perceived injustice. 11. The applicant provides: a. A copy of his DD Form 4, which shows he enlisted/reenlisted in the USAR for a period of 3 years on 22 August 2007. This DD Form 4 appears to be appropriately executed. b. A memorandum issued by Office of the Deputy Chief of Staff, G-1, Washington, DC, subject: Change in Policy Governing Bonus Recoupment, dated 14 August 2008. This memorandum grants authority to cancel recoupment actions regarding USAR Soldiers in a bonus status who enter the Active Component (AC), the USAR Military Technician (MILTECH) program, the Active Guard Reserve (AGR) Program, or an officer status. This approval only applies to Soldiers who changed status on or after 8 April 2005. The applicant did not provide, nor does his record contain, any documentation that shows he was notified of, or subjected to, a recoupment action. REFERENCES: 1. Title 37, U.S. Code, section 308j(b), states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to: a. 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 for a period specified in the agreement. 2. Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNG) and USAR incentive programs. The SRIP incentive is offered to newly-accessed officers who met eligibility criteria and accessed into an officer specialty listed in the SRIP, for the period in which commissioned. 3. Army Regulation 135-100 (Army National Guard and Army Reserve - Appointment of Commissioned and Warrant Officers of the Army), prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the USAR. 4. Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations), establishes policies, standards, and procedures governing the administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of reasons. Paragraph 5-5 addresses discharges on appointment as a commissioned or warrant officer. It states, in pertinent parts, that: a. An enlisted Solider (including a cadet) will be discharged on acceptance of an appointment as an officer or warrant officer in any regular or reserve component of the U.S. Armed Forces. b. Before such discharge, the separation authority must have documentary evidence proving that the Soldier will be appointed as a commissioned or warrant officer upon discharge from enlistment. c. The effective date of discharge will be the date preceding the date of appointment as an officer or warrant officer. d. The service of a Soldier will be characterized as honorable unless an uncharacterized description of service is authorized. 5. A memorandum issued by the Office of the Chief, Army Reserve on 23 June 2009, extended on 10 August 2009, and updated on 24 December 2009, subject: Army Reserve Fiscal Year 2009 (FY09) 2nd Half SRIP Policy Guidance through 30 September 2009, provides that: a. The OAB is restricted by critical AOC/MOS at time of application. b. The recipient will receive a lump sum payment of $10,000 after assignment and award of duty qualifying AOC/MOS. c. The recipient will incur a 6-year obligated term of service, based on the date of appointment or date of agreement, whichever is later. d. The Officer Accession Critical Skill List, effective 1 July 2009 and extended until 30 June 2010, shows critical skills by AOC/MOS eligible for a bonus. It shows AOC 12A (21A) as being eligible for an OAB. DISCUSSION: 1. The applicant requests correction of his record to show he is entitled to the $10,000 OAB he contracted for as a member of the USAR. 2. The applicant submitted an application for an appointment as a commissioned officer in the USAR on 6 November 2009. Subsequently, he was counseled by a service representative and signed a "Written Agreement – Officer Accession Bonus Acknowledgement," on 30 November 2009 for an OAB of $10,000, to be payable upon his appointment and completion of an Officer Basic Course (OBC). 3. The acknowledgement document is missing the witnessing officer's signature and date. It is not known why his OAB was never paid to him, but it is assumed that the missing witnessing officer's signature is the reason for non-payment at the time of his graduation from OBC on 1 October 2010. 4. The USARC ETP memorandum states the applicant's AOC was not eligible per SRIP FY09 Extension; therefore, his ETP was denied and the OAB was not authorized. Notwithstanding this memorandum's assertion, the FY09 2nd Half SRIP, dated 23 June 2009, with Extension Memorandum dated 10 August 2010, extended eligibility for incentives to an unknown date until the National Defense Authorization Act (NDAA) 2010 was enacted. The AOC 21A was authorized an OAB. The SRIP FY09 Change 1 policy guidance, dated 24 December 2009, further extended incentives to AOCs until 30 June 2010 and lists AOC 12A (21A) as being authorized an OAB. 5. The Engineer Officers' AOC at the time of the applicant's request was identified as 21A, as evident by his OBC academic report and DD Form 214. At some unknown date, the Engineer Officers' AOC was renamed as 12A, its current identification. 6. There is no evidence that shows the applicant was at fault for the missing witnessing officer's signature on the acknowledgement document or for the lack of knowledge or the oversight from higher officials in determining the proper Engineer Officer's AOC identification at the time. 7. Based on the aforementioned facts, it would serve the interests of equity and justice to correct his records to show his "Written Agreement – Officer Accession Bonus Acknowledgement" was properly witnessed at the time and to pay him the OAB he faithfully contracted for. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010161 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2