MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 MARCH 2003                   
	DOCKET NUMBER:   AR2002076932

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Kenneth W. Lapin		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his military records be corrected to permit payment of his $2500.00 enlistment bonus.

APPLICANT STATES:  In effect, that he was “falsely induced” into enlisting in the United States Army Reserve for a period of 3 years in February 1999 with a promise of receiving an enlistment bonus.  In support of his request he submits copies of his request to have the bonus paid as an exception to policy, which was denied, and copies of his 1999 enlistment document which indicates, by his initials, that he would be receiving the enlistment bonus.

EVIDENCE OF RECORD:  The applicant's military records show:

He initially enlisted in the United States Army Reserve (USAR) in February 1987 when he was 19 years old.  His initial enlistment contract indicates that he received $1500.00 as an enlistment incentive at that time.

His available records indicate that at some point he became a member of the Louisiana Army National Guard and on 9 January 1993 extended his original 6 year enlistment for an additional 6 years.  As a result of his 1993 extension, his service contract was due to expire in February 1999.  His 1993 extension contract notes that he was “eligible for the Retention Bonus” and that he accepted the bonus.  The applicant was serving in pay grade E-5 at the time of his 1993 extension.

On 16 February 1999 the applicant completed an enlistment document to enlist in the United States Army Reserve for a period of 3 years.  At the time of his 1999 enlistment in the United States Army Reserve he was nearly 32 years old and was just days shy of reaching 12 years of military service.  His enlistment documents, which he provided in support of his request, but which are not contained in the Official Military Personnel File provided to the Board, indicate that he initialed the statement “Qualified in military occupational specialty 92Y10….” in Section III (Acknowledgment) of his Department of the Army Form 5261-5-R (Selected Reserve Incentive Program – USAR Prior Service Enlistment Bonus Addendum).  However, he entered “NA” in response to the statement “Not a previous recipient of a bonus for enlistment, reenlistment, or extension of enlistment in a reserve component” in that same section.

In Section V (Entitlement) on the addendum form he initially entered “NA” but subsequently lined through the “NA” and entered his initials in response to the statement “…I am enlisting for 3 years for a bonus of $2500.00.”  The addendum was authenticated by the applicant and by a “guidance counselor” on 
16 February 1999.

According to documents provided by the applicant, on 30 April 1999 his Reserve unit requested initial payment of his $2500.00 bonus.  On 13 May 1999 the request was returned to the applicant’s unit by the Reserve Component Pay Support Office at Fort Riley, Kansas with the notation that the applicant could not receive the bonus because he had previously received a “Reenlist Bonus.”

The applicant’s organization then initiated a request for “Guidance on a Denied Reenlistment Bonus” which ultimately led to a June 2001 request for payment of the bonus as an exception to policy.  In the unit’s June 2001 request they noted that the applicant was due to reenlist or be discharged from the Army National Guard in February 1999.  Because the applicant was not eligible for a reenlistment bonus in the Army National Guard, the “promised bonus was a critical factor in his switching to the USAR.”  The request noted that the applicant believed he was eligible to receive a bonus for changing over to the Army Reserve and based this “belief on the word of two agents of the United States government.”  They maintained that he enlisted in the United States Army Reserve in good faith and that he had served honorably in spite of the fact that he had not been able to receive the promised bonus.

On 30 April 2001, prior to the June 2001 initiation by the applicant’s unit for payment of the enlistment bonus as an exception to policy, the applicant was promoted to pay grade E-6.

On 27 February 2002 the Office of the Deputy Chief of Staff for Personnel denied the petition to pay the applicant the bonus as an exception to policy.  In their denial memorandum the Chief, Enlisted Accessions Division noted that because the applicant’s “contract” could not be fulfilled he could remain in his unit without benefit of the bonus, request discharge, or apply to this Board for relief.

Army Regulation 135-7 states that eligible persons with prior military service, who enlist in the United States Army Reserve and contract to serve in a troop program unit (TPU) in a designated specialty announced by Department of the Army may receive a prior service enlistment bonus under the Selected Reserve Incentive Program in the amount of $2500.00 for an enlistment to serve 3 years in a TPU.  Among other requirements, the individual must have less than 14 years of total military service, must not have previously been paid a bonus for enlistment, reenlistment, or extension of an enlistment in any Reserve Component of the Armed Forces, and must have been out of the military service for at least 12 months if previously discharged from the Army National Guard or United States Army Reserve.

Army Regulation 135-178 provides for the discharge of a reservist who is the subject of a material misrepresenatiation by his or her recruiter in that a commitment has been made to the reservist that the reservist is not qualified to receive.

The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the Government is not liable for the erroneous actions of its officers, agents, or employees in the performance of their official duties.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  While the applicant maintains that he “believed” he was eligible for the bonus incentive he fails to explain why he did not raise a question regarding his previous bonus when he completed his enlistment addendum by indicating “NA” in response to the statement “Not a previous recipient of a bonus for enlistment, reenlistment, or extension of enlistment in a reserve component” on his Department of the Army Form 5261-5-R.

2.  Additionally, the Board notes that not only are individuals who have been previous bonus recipients not eligible for bonuses, neither are soldiers who have been discharged from either the Army National Guard or United States Army Reserve for less than 12 months.  Clearly the purpose of such a requirement was to preclude individuals from jumping back and forth between military components, merely to take advantage of various bonuses, as the applicant did.

3.  The Board notes that the applicant was 32 years old and was just days shy of reaching 12 years of military service at the time he executed a contract to enlist in the United States Army Reserve in February 1999.  The Board maintains that not only was the applicant old enough, with sufficient military service, to bear some of the responsibility for ensuring his entitlements were correct and authorized, the Board concludes that in all likelihood the applicant would have continued his military service without the enticement of a bonus.  As such the Board concludes there was no detrimental reliance on the part of the applicant as a result of the completion of his erroneous enlistment contract.

4.  While the applicant may have made decisions based on the information provided to him by a recruiter and career counselor, Army regulations do not allow payment of an enlistment bonus to individuals have are previous bonus recipients, or who had less than a 12 months break in their service.  The fact that he was told he was entitled to the bonus does not provide a basis for payment, since the government is not liable for the erroneous information given by its officers, agents or employees.  The applicant ‘s options, as provided for in Army Regulation 135-178 and in the February 2002 memorandum from the Chief, Enlisted Accessions Division, are still available to him.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__LLS   _  __CJP___  __KWL__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002076932	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020320	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.