IN THE CASE OF: BOARD DATE: 31 March 2023 DOCKET NUMBER: AR20220009278 APPLICANT REQUESTS: approval of his Officer Accession Bonus (OAB). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * electronic DD Form 149 (Application for Correction of Military Record) * Written Agreement, OAB Addendum, 14 November 2007 * Orders Number 344-013 issued by the Adjutant General, , 9 December 2008 * Orders Number 090-201 issued by the, Department of Defense (DOD), Military Division, Office of the Adjutant General, 31 March 2009 * Orders Number 120-232 issued by the, DOD, Military Division, Office of the Adjutant General, 30 April 2009 * Permanent Orders Number 126-174 issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Rucker, 6 May 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 13 May 2009 * DA Form 1059 (Service School Academic Evaluation Report), 13 May 2009 * Orders Number 134-041 issued by the, DOD, Military Division, Office of the Adjutant General, 14 May 2009 * Orders Number 153-083 issued by the, DOD, Military Division, Office of the Adjutant General, 2 June 2009 * Orders Number SL-275-0222 issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, 2 October 2009 * Orders Number SL-275-0222(A1) issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, 8 October 2009 * National Guard Bureau (NGB) Memorandum, Subject: Request for Exception to Policy (ETP) for OAB, 16 January 2015 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 that through no fault of his own, he has been prevented from receiving his OAB. a. He graduated from the Warrant Officer Basic Course and Flight School in 2009. He arrived at his unit in May 2009 and submitted a Written Agreement OAB Addendum. He deployed in support of Operation Enduring Freedom in October 2009. While deployed, his wife initiated a divorce. She had access to his military pay and he assumed that she received his bonus payment after his return from deployment on/or about August 2010. His divorce was finalized later in 2010. b. He made an inquiry regarding the second installment of his bonus. His unit recommended that he review his previous Leave and Earnings Statements (LES) to verify that the first installment was actually received. After reviewing his LES and realizing that the first installment was never paid, he submitted an inquiry to determine why. c. On 16 January 2015, he received a memorandum stating that his ETP was denied citing (1) a difference in the signature dates, (2) that the bonus control number was requested after the date of accession, and (3) that he transferred to an unauthorized position. He was instructed to submit a DA Form 1059 to apply for the OAB. He signed and submitted the document to his Readiness Noncommissioned Officer (NCO) for processing, then he redeployed in support of Operation Enduring Freedom. The Warrant Office Recruiting Office stated that he would receive his bonus once he graduated, received his DA Form 1059, and arrived at his new unit. He followed instructions. * He did not change any dates and has no idea why any dates would be changed * He was assigned to his unit after Flight School and deployed on a Title 10 tour. In which his Military Occupational Specialty (MOS) changed from 153A (Rotary Wing Aviator) * His contract/bonus agreement was completed 21 months after the date of accession * After graduation from Flight School, the MOS changes and while in school, the MOS is Aviator Non-specific, and upon graduation, federal recognition changes the MOS based on the advanced aircraft qualification * After Flight School, his MOS was changed to 153L (UH-72A Pilot) after 2 years 3. The applicant's service record shows: a. On 14 November 2007, having prior enlisted service in the Army National Guard (ARNG) and the Regular Army, the applicant was appointed as a warrant officer in the ARNG with a subsequent order to active duty. Orders Number 317-024 issued by the DOD, Military Division, shows the applicant in MOS 153D (UH-60) pilot. In conjunction with this appointment Written Agreement, OAB Addendum, was completed showing the applicant was accessed into a Modified Table of Organization and Equipment (MTOE) unit and would receive a bonus of $10,000.00 paid in two 50 percent installments. The first payable upon completion of the Officer Basis Course/Warrant Officer Basis Course and the second on the 3rd year anniversary of the commission/appointment date. The applicant signed the form on 14 November 2007, the Witnessing Officer signed on 24 August 2009, and the Service Representative signed on 28 August 2009. b. Special Orders Number 318 AR issued by the NGB, dated 20 December 2007, extended Federal Recognition to the applicant as a WO1, effective 20 November 2007. c. Orders Number 344-013 issued by the Adjutant General, State of Georgia, dated 9 December 2008, released the applicant from A Company, 1st Battalion, 171st Aviation Regiment as a UH-60 pilot and transferred him to B Company, 1st Battalion, 169th Aviation Regiment as a CH-47D (Medium Lift Chinook) pilot in MOS 154C (Chinook Pilot), effective 1 December 2008. d. DD Form 214, ending on 13 May 2009, shows the applicant was honorably released from active duty training upon completion of MOS 154C training. e. Orders Number 153-083 issued by the DOD, Military Division, Office of the Adjutant General, dated 2 June 2009, ordered the applicant to active duty in support of Operation Enduring Freedom, effective 31 August 2009 not to exceed 400 days. f. Orders Number 153-15 issued by the NGB, dated 2 June 2009, initiated the applicant's entitlement to aviation career incentive pay, effective 14 May 2009. g. On 10 June 2009, the applicant was appointment as a Reserve Warrant Officer in the Army, effective 14 November 2007. h. Special Orders Number 211 AR issued by the NGB, dated 27 August 2009, extended Federal recognition to the applicant as a WO1, effective 13 May 2009 for a MOS change from 001A (Army Officer Generalist). i. Headquarters, Task Force Thunder, Combined Joint Task Force-82, Memorandum for Record, Subject: Statement of Wartime Service, dated 24 November 2009, repositioned the applicant within Central Command deployed for Task Force Thunder from 15 October 2009 to 24 November 2009 in support of Operation Enduring Freedom. j. Orders Number 098-744 issued by the Adjutant General, State of Georgia, dated 8 April 2010, reassigned the applicant from MOS 154C0 (CH-47D Pilot), Paragraph 302A, Line 03 to MOS 154C0H2 (Aviation Life Support Equipment Officer), Paragraph 302A, Line 04, effective 1 April 2010. k. Orders Number 218-1325 issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, dated 6 August 2010, released the applicant from active duty, effective 12 September 2010. l. DD Form 214, ending on 12 September 2010, shows the applicant was honorably released from active duty. m. Orders Number 278-796 issued by the Adjutant General, State of Georgia, dated 5 October 2010, released the applicant from Detachment 1, B Company, 1st Battalion, 169th Aviation Regiment as Aviation Life Support Equipment Officer and transferred him to C Company, 2nd Battalion, 151st Aviation Regiment, effective 5 October 2010. n. Orders Number 348-031 issued by the State of Georgia, DOD, Military Division, Office of the Adjutant General, dated 14 December 2010, ordered the applicant to Full- Time National Guard Duty as a mobilization augmentee from 5 December 2010 to 30 September 2011. o. Orders Number 018-061 issued by the State of Georgia, DOD, Military Division, Office of the Adjutant General, dated 18 January 2011, ordered the applicant to Temporary Duty (TDY) for Aviation Flight Training for UH-72A qualification from 17 January 2011 to 26 February 2011. p. Orders Number 123-023 issued by the State of Georgia, DOD, Military Division, Office of the Adjutant General, dated 3 May 2011, amended Orders Number 348-031, dated 14 December 2010, to change the applicant's period of TDY from 5 December 2010 to 30 September 2011 to 5 December 2010 to 30 April 2011. q. Orders Number 126-003 issued by the State of Georgia, DOD, Military Division, Office of the Adjutant General, dated 6 May 2011, ordered the applicant to Full-Time National Guard Duty for counterdrug aviation from 1 May 2011 to 30 September 2011. He remained on continuous orders in a full time National Guard duty status. r. Orders 047-848 issued by the Adjutant General, State of Georgia, dated 16 February 2012, reassigned the applicant from MOS 152BC (Instructor Pilot), Paragraph 409, Line 05 to MOS 152BC (Instructor Pilot), Paragraph 409, Line 05 effective 15 February 2012. s. Orders Number 283-930 issued by The Adjutant General, State of Georgia, dated 9 October 2012, reassigned the applicant from MOS 152BC (Invalid Paragraph/Line), Paragraph 409, Line 05 to MOS 153L0 (LUH-XX Pilot), Paragraph 409A, Line 03, effective 3 October 2012. t. DD Form 214, ending on 3 April 2013, shows the applicant was honorably released from active duty. Block 11 (Primary Specialty) – shows 154C0 (CH-47D Pilot), 152B0 (OH-58D Pilot), 153L0 (UH-72A Pilot). u. The applicant remains in the ARNG. v. National Guard Bureau Memorandum, Subject Request for ETP for OAB, dated 16 January 2015, denied the applicant's ETP to retain his $10,000.00 OAB for the following discrepancies. The State Incentive Manager terminated the incentive with recoupment effective the contract start date. He was instructed to apply to the ABCMR for action. (1) The bonus control number was requested after the date of accession. (2) The contract/bonus addendum contained different signature dates from the applicant, Witnessing Officer, and the Service Representative. (3) The applicant transferred into an unauthorized position during the contract term. (4) Headquarters, Department of the Army (HQDA) does not authorize approval of the ETP when the contract/bonus agreement was completed more than 1 year after the date of accession. The applicant's contract/bonus agreement was not requested or completed until 21 months after the date of accession. Although he signed the agreement on the date of accession, the government officials did not date the agreement until 21 months later. In addition, HQDA does not authorize approval of the ETP when a government official does not sign the contract/bonus agreement. (5) The applicant voluntarily transferred to an unauthorized excess position prior to the date the government officials signed the agreement. He remained in the position until after the government officials signed the agreement; which made him ineligible on that date. 4. The applicant provides: a. Orders Number 344-0163 issued by the Adjutant General, State of Georgia, dated 9 December 2008, transferred the applicant as a UH-60 Pilot with A Company, 1st Battalion, 171st Aviation Regiment to CH-47D Pilot with Detachment 1, B Company, 1st Battalion, 169th Aviation Regiment, effective 1 December 2008. b. Orders Number 090-201 issued by the State of Georgia, DOD, Military Division, dated 13 March 2009, amended Orders Number 345-301 pertaining to his period of TDY changing the dates from 14 December 2008 – 9 April 2009 to 14 December 2008 to 1 June 2009. c. Orders Number 120-232 issued by the State of Georgia, DOD, Military Division, Office of the Adjutant General, dated 30 April 2009, ordered the applicant to active duty for pre-deployment annual training from 3 August 2009 to 17 August 2009. d. Permanent Orders Number 126-174 issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Rucker, dated 6 May 2009 awarded the applicant the Army Aviator Badge and Aeronautical Designation of Army Aviator, effective 13 May 2009. e. DA Form 1059 dated 13 May 2009, covering period 11 November 2007 to 13 May 2009, stated that the applicant successfully completed the initial Entry Rotary Wing and Aviation Warrant Officer Basic Course and the CH-47D Aircraft Qualification Course. f. Orders Number 134-041 issued by the State of Georgia, DOD, Military Division, Office of the Adjutant General, dated 14 May 2009, ordered the applicant to active duty for pre-mobilization from 18 August 2009 to 24 August 2009. g. Orders Number SL-275-0222 issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, dated 2 October 2009, deployed the applicant in a temporary change of station status in support of Operation Enduring Freedom in Afghanistan, effective 10 October 2009 not to exceed 359 days. h. Orders SL-275-0222(A1) issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, dated 8 October 2009, amended Orders Number SL-275-0222, dated 2 October 2009, to add the accounting code. ? 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 contentions, the military record and regulatory guidance. The Board reviewed the National Guard Bureau memorandum for the Georgia Army National Guard regarding the applicant’s request for an exception to policy pertaining to his request to retain the Officer Accession Bonus. The Board considered the reasons proffered by the NGB for denying the request and concluded that the applicant in good faith signed the written agreement and would not otherwise have known it contained errors that rendered the agreement invalid. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for 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 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: * reinstating his eligibility for his Officer Accession Bonus * cancellation of any debt incurred due to the administrative error which resulted in the applicant being determined ineligible for the OAB * repayment of any monies recouped and payment of monies due, the amount of which to be determined by the Defense Finance and Accounting Services 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. ADMINISTRATIVE NOTE(S): N/A. ? 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. 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. 3. Army National Guard Selected Reserve Incentive Program Policy Guidance for Fiscal Year 2007, Policy Number 07-06, effective 10 August 2007, established policy to administer Army National Guard incentives. a. Item 5 (Termination with Recoupment) stated that if an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. The following termination reasons are the most common, but may not be all inclusive. (1) Failure to participate satisfactorily in required training during the entire period of service agreed to unless the failure to participate satisfactorily was due to reasons beyond the control of the member such as death, injury, illness, or other impairment. (2) Separates from the Army National Guard for any reason. (3) Moves to a non-bonus skill or unit. (4) Failure to extend the contracted term of service for a period of authorized non-availability. (5) Acceptance an AGR position or a Military Technician position where membership in the Army National Guard is a condition of employment, and member has not served at least 6 months of the incentive contract term. (6) Any other additional termination with recoupment condition that is not included in this policy can be found in National Guard Regulation 600-7 (Selected Reserve Incentive Program). b. Item 7 (Suspension) stated that incentives would be suspended for the following: * Entering period of non-availability. Maximum periods of non-availability are one-year for personal reasons and 3 years for missionary obligations * Becoming flagged for an adverse action * Reinstatement of bonus eligibility not guaranteed. Payments would be processed effective on the date the suspension was lifted or on the adjusted anniversary date of satisfactory creditable service c. Item 8 stated that retroactive entitlement to an incentive is not authorized unless a written exception is requested. d. Item 14 (Eligibility), Subparagraph o (OAB Basic Eligibility) stated the Army National Guard offers two OAB options to newly commissioned officers and newly appointed Warrant Officers who agree to serve as an Officer in the Army National Guard for 6 years. They must agree to serve in a critical unit identification code (UIC) or agree to serve in a non-critical UIC. Both options require an agreement to serve in a critical skill area of concentration (AOC). Applicants must sign their bonus addenda on the date that they accept their commission and met the following eligibility criteria on that date. (1) Agree to serve as an officer for a period of not less than 6-years on active drilling status. (2) Agree to serve in a critical skill AOC. (3) Not accepting an appointment as an Officer or Warrant Officer for the purpose of qualifying for employment in the Military Technician or Active Guard/Reserve (AGR) program. (4) Not receiving and will not receive the following during the period of service for which contracted: e. Item p (OAB Options and Payment Schedule) stated: (1) The Army National Guard offers a $10,000.00 OAB to newly Commissioned Officers and newly appointed Warrant Officers who agree to serve 6 year in a critical UIC. Additionally, Officers and Warrant Officers must serve in a valid AOC vacancy within their chosen UIC. The Critical UIC OAB will be paid in one lump-sum payment upon successful completion of Officer Basic Course or Warrant Officer Basic Course. (2) The Army National Guard offers a $10,000.00 OAB to newly Commissioned Officers and newly appointed Warrant Officers who agree to serve 6 years in a MTOE unit. Additionally, Officers and Warrant Officers must serve in a valid AOC vacancy within their chosen UIC. The MTOE OAB will be paid in two 50 percent installments. The first 50 percent installment will be paid upon successful completion of Officer Basic Course or Warrant Officer Basic Course and the second and final installment of 50 percent will be processed for payment on the third year anniversary of commission or appointment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009278 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1