IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20220009308 APPLICANT REQUESTS: payment of his Officer Accession Bonus (OAB) in the amount of $10,000.00. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) online application * DD Form 149 * Memorandum for Record (MFR), Subject: Receipt of Overdue Officer Bonus Payment * Written Agreement Officer/Warrant OAB Addendum * DA Form 1059 (Service School Academic Evaluation Report) Engineer Basic Office Leaders Course (BOLC) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Guard Incentive Management Subsystem (GIMS) Screenshot * Manual Written Agreement Officer/Warrant Officer Retention Bonus Army National Guard (ARNG) of the United States * Orders Number 0001587164.00 Permanent Change of Assignment * Personnel Qualification Record (PQR) Officer/Warrant Officers * DA Form 4856 (Developmental Counseling Form) * Defense Joint Military System (DJMS) Screenshot FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in his applications and MFR: a. As part of his officer enlistment, he was offered a bonus of $10,000.00 if he was able to complete the required professional military education on time and if he was assigned to a 12A (Engineer) slot. b. This was accomplished, however, the Puerto Rico ARNG (PRARNG) assigned him to a 12B (Combat Engineer) slot, which is an enlisted code for his paragraph and line number for his duration with the PRARNG from 2011 through 2016. This invalidated his contract inadvertently. This was a clear oversight from the unit since Engineer Officers are cataloged as 12A. c. This is a clear case of oversight from the unit paragraph and line assignment. It should not have happened. At the point of record verification, the office of incentives should have captured the error and conducted an investigation to rectify the error. d. At the time of his Interstate Transfer (IST) to the Rhode Island ARNG (RIARNG), it was brought to his attention that the issue was still pending but after some investigation, it was determined that it was a lost cause. e. Recently Sergeant First Class (SFC) C- E- was able to determine the problem and layout the course to rectify the error in order for him to collect the original bonus as well as the latest one he signed for a year or so ago regarding Engineer retention for the state of Rhode Island. f. Payments for his bonus were not made in a timely manner due to no fault of his. Due to the payment being over five years a closed year packet had to be submitted for approval and by the time National Guard Bureau (NGB) reviewed it the 6-year mark hit, which now requires a decision by the Board. g. Payment hold was removed on 18 September 2014 and was never submitted for payment until 10 September 2017, which caused it to fall into the over 6-year mark. h. During his initial contract with the PRARNG, he was offered a $10,000.00 bonus for selecting and serving as an Army Engineer in the 130th Engineer Battalion. He was a graduate of Engineer BOLC in November 2013, within 2 years of entry to the unit. During his tenure in the PRARNG, he served as a Platoon Leader in the 1010th Engineer Company from 11 September 2011 to 30 September 2016. This period included multiple annual trainings and a deployment as an engineer platoon leader to the Middle East. For this period, the PRARNG did not execute a payment of the bonus, even though he was actively serving in the position to the utmost of his ability with the dignity and respect that the office entered deserved. i. In October 2016, he was transferred to the RIARNG via the IST program, and he was assigned to the 861st Engineer Support Company. During his initial time at the unit, he served briefly as a platoon leader and then moved to the company executive officer position in which he served until November 2019. At that point, he was reassigned to the 56th Troop Command Headquarters Detachment as a commander. During that period, he was offered his second bonus if he chose to remain an engineer, which he accepted. In December 2021, he assumed command of the 861st Expeditionary Sustainment Command where he currently serves. j. During the final steps of the IST to Rhode Island, Master Sergeant (MSG) - contacted him regarding the original bonus to understand why the PRARNG had not paid. She tried to hold the PRARNG accountable for the error and get the payments to him in a timely manner. By the time she intended to do this the statue of limitation timeline was reached and payment was cancelled with no further action and with no guidance given as what needed to be done to rectify this. At that point, he figured that the bonus was lost and there was no point on continuing the search for an answer and to focus more on the opportunities of his new career in the RIARNG. k. During the month of July, SFC - contacted him regarding the latest bonus payment for continuing service as an Army Engineer. In this conversation, it was discussed why the PRARNG never paid his initial bonus. Thus, developing the conversation into the plan of action to collect the information to submit a case to the Board. l. He has always kept his part of the original contract, not for the money, but for the loyalty and respect to the Corps of Engineers. Currently, he is scheduled for the Engineer Captains Career Course (CCC) in October thus a testament of his commitment to the Corps of Engineers and the second contract. 3. The applicant's service record contains the following documents for the Board's consideration: a. NGB Form 337 (Oaths of Office) shows the applicant completed the oath of office in the PRARNG on 10 September 2011. b. Orders Number 278-673, published by Puerto Rico National Guard Element, dated 5 October 2011 appointed the applicant in the ARNG in the Corps of Engineers with assignment to 1010th Engineer Company, paragraph 106/line number 01. c. Special Orders Number 111, published by the NGB, dated 5 April 2012, extended federal recognition for the applicant's initial appointment in the ARNG. d. DA Form 1059, dated 8 November 2013, shows the applicant attended, completed, and achieved course standards in Engineer BOLC from 25 June 2013 through 8 November 2013. e. Orders Number 278-028, published by Rhode Island National Guard, dated 4 October 2016, appointed the applicant in the RIARNG, effective 16 September 2016. f. Orders Number 314-509, published by the Puerto Rico National Guard Element, dated 9 November 2016, released the applicant from the PRARNG and transferred him to the RIARNG, effective 15 September 2016. g. Manual Written Agreement Officer/Warrant Officer Retention Bonus ARNG of the United States, dated 29 September 2020, shows the applicant agreed to serve as a 12A for a minimum of 3 years for a bonus in the amount of $20,000.00. h. DA Form 1059, dated 28 July 2023, shows the applicant attended and completed the Engineer CCC. i. The applicant's service record was void of a bonus addendum for the year 2011, while he was in the PRARNG. 4. The applicant provides the following documents, not previously considered, for the Board's consideration: a. Written Agreement Officer/Warrant OAB Addendum, dated 10 September 2011, shows the applicant would receive a bonus in the amount of $10,000.00 as a lump sum payment as a 12A. He must complete OBC within 24 months. The form was missing a bonus control number. b. DD Form 214 shows the applicant, as a member of the ARNG, entered active duty on 10 August 2015 and was released on 6 August 2016. He had service in Kuwait from 2 October 2015 to 11 March 2016 and 20 May 2016 through 18 June 2016. He had service in Iraq from 12 March 2016 through 19 May 2016. c. GIMS Screenshot which shows on 10 September 2017 the cancelation of payment as pay date was greater than 6 years. The entire screenshot shows the progress of the applicant's OAB and is available for the Board's consideration. d. Orders Number 0001587164.00, published by the RIARNG, dated 28 December 2021, action type permanent change of assignment, effective 4 December 2021, with assignment as a commander in the 861st Engineer Company. e. PQR - Officers/Warrant Officers, dated 8 March 2022 shows the applicant's personal data, grade data, organization data, pay data, training/education data, individual data, officer-warrant officer unique data, officer unique data, and army physical fitness data. The entire form is available for the Board's consideration. f. DA Form 4856 dated 7 July 2022 wherein the applicant was counseled to notify him of incentive discrepancy regarding his incentive and advisement to submit an application to the Board. The applicant agreed with the counseling and signed the form. g. DJMS Screenshot dated 7 July 2022, shows an anniversary payment due on 10 September 2011 and there were no payments made. 5. On 17 August 2023, the NGB, Chief, Special Actions Branch, provided an advisory opinion for the Board's consideration, which states, in effect: a. The applicant requests approval of his eligibility for a Closed Year (CY) payment of his OAB in the amount of $10,000.00. The NGB recommends approval of his request. b. The applicant reports that during his enlistment in the PRARNG, he was offered an OAB upon his agreement to serve as 12A Engineer Officer, and to complete the requisite training timely for his assignment. The applicant notes contrary to his agreement, he was coded as 12B, an enlistment position, following his training completion. The applicant explains that his unit oversight in his position assignment caused invalidation of his bonus and prevented his timely payment due to no fault of his own. Therefore, he requests to be found eligible for a CY payment of his due incentive. c. On 10 September 2011, the applicant was appointed as an officer in the rank of second lieutenant in the PRARNG. In connection with his appointment, he signed an OAB addendum for a total amount $10,000.00 and in return, he would serve in the area of concentration 12A and complete his BOLC within 24 months of his appointment. d. Concurrent with his appointment, the applicant was assigned to 1010th Engineer Company to serve as platoon leader. Meanwhile, his assignment orders reflect that a paragraph/line number 106-01, which according to the applicant's PQR corresponds to Military Occupational Specialty (MOS) 12B, an enlisted position. Records further show on 8 November 2013, the applicant successfully completed his BOLC requirement. e. A review of GIMS indicates the applicant's incentive was terminated due to an unauthorized change in MOS. Consequently, no payment was issued to him under that contract. f. On 15 September 2016, the applicant transferred to the RIARNG and was assigned to the 861st Engineer Company as platoon leader. In connection with his retention in the RIARNG, on 29 September 2020, the applicant was offered an officer retention bonus in the amount of $20,000.00. g. Under the provision of Title 31 USC, section 3702(b) the Barring Act, jurisdiction to consider claims is limited to those that are filed within six years after they accrue. However, in accordance with Title 31 USC, section 3702(3), upon request of the Secretary concerned, the Secretary of Defense may waive the time limitations established by the Barring Act for claims involving a uniformed servicemember's pay, allowances, or survivor benefits to allow payment of the claim up to $25,000.00. h. The applicant's OAB contract started on 10 September 2011 with an obligation end date of 9 September 2017. However, it was abruptly terminated on 28 September 2011 because of the area of concentration discrepancy due to no fault of the applicant. While his gaining unit initially attempted to resolve the issue following his IST, the applicant was ultimately advised to apply to the Board as the best course of action. Due to the contract payment being greater than six years, an exception to policy approval is required in order to pay the applicant's incentive. i. Upon consultation with RIARNG about this matter, the State Incentives and Education Office determined the applicant was eligible to receive his incentive bonus of $10,000.00. However, due to an assignment error caused by the office personnel management, the applicant was coded incorrectly, which prevented his bonus payment. RIARNG recommends the applicant be found eligible for a CY payment of his incentive. j. In conclusion, the applicant successfully met his obligation relating to his contract incentive. He has diligently served as an Engineer Officer and continues to be an asset for his organization. It is apparent the applicant's contract was unjustly terminated due to an oversight from his previous unit of assignment. In view of all the above, it would be in the interest of justice and equity that the applicant is awarded his incentive. Therefore, NGB recommends the applicant be granted full relief on his request. k. The opinion was coordinated with the RIARNG and the ARNG Incentives Branch. l. NGB provided a memorandum from the PRARNG, which contained supporting documentation, regarding the applicant's request. The memorandum and supporting documents are available for the Board's consideration. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the NGB, Chief, Special Actions Branch advisory, the Board concurred with the advising official finding the applicant successfully met his obligation relating to his contract incentive. He has diligently served as an Engineer Officer and continues to be an asset for his organization. It is apparent the applicant's contract was unjustly terminated due to an oversight from his previous unit of assignment. The Board determined, based on the NGB advisory opine, the applicant was eligible to receive his incentive bonus of $10,000.00. Therefore, the Board granted relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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 records of the individual concerned be corrected by showing the applicant is eligible to receive his incentive bonus of $10,000.00. Rhode Island Army National Guard (RIARNG) recommends the applicant be found eligible for a CY payment of his incentive. 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. REFERENCES: 1. Title 10, USC, 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 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. 2. Department of Defense Financial Management Regulation sections: a. 560201 (OAB) states pursuant to Title 37, USC, section 332(a)(1), the Secretary concerned may pay an OAB to an eligible officer 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. b. The officer must enter into an agreement to serve in a critical officer skill designated by the Secretary; or to meet a manpower shortage in a unit of the Selected Reserve. c. The Secretary concerned will designate the critical officer skills to which the bonus authority is to be applied. A skill may be designated as a critical officer skill if it is critical to have a sufficient number of officers who are qualified in that skill. d. An agreement entered into with the Secretary concerned will require the person entering into that agreement to serve in the Selected Reserve for a specified period. The period specified in the agreement will be any period not less than 3 years that the Secretary determines appropriate to meet the needs of the Reserve Component in which the service is to be performed. 3. Title 37, USC: a. Section 332(a) (General bonus authority officers) states the Secretary concerned may pay a bonus under this section to a person, including an officer in the uniformed services, who—accepts a commission or appointment as an officer in a uniformed service, affiliates with a Reserve Component. b. Section 332(b) a bonus authorized by subsection (a) may be paid to a person or officer only if the person or officer agrees under subsection (d): (1) to serve for a specified period in a designated career field, skill, unit, or grade; or (2) to meet some other condition or conditions of service imposed by the Secretary concerned. c. A bonus paid under paragraph (2) (Reserve affiliation) of subsection (a) may not exceed $20,000.00 for a minimum three-year period of obligated service agreed to under subsection (d) (written agreement). d. To receive a bonus under this section, a person or officer determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned that specifies—(1)the amount of the bonus; (2)the method of payment of the bonus under subsection (c)(2) (Lump sum or installment); (3)the period of obligated service; and (4)the type or conditions of the service. 4. Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009308 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1