PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002063146


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

Mr. Carl W. S. Chun		Director
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. John T. Meixell		Member
Mr. Harry B. Oberg		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his 27 October 1982 reenlistment date be changed to 27 November 1982 or later and he be paid the bonus for which he reenlisted. (The “or later” is a pen and ink addition to his request that may have been added at a later date.)

3. The applicant states that he reenlisted on 27 October 1982 for a bonus. He did not have to reenlist on that day. He later found out he could not receive the bonus. He submitted an application to the Board in 1985 but he did not get a reply. Once his enlistment contract was up, he did not know he could submit again.

4. The applicant’s military records show that after having had prior service in the Army National Guard, which included a period of initial active duty for training, he enlisted in the Regular Army on 10 March 1981 for four years.

5. Around October 1982, the applicant came down on assignment to Germany with apparently an April 1983 report month. He needed to reenlist to meet the service remaining requirement. On 22 October 1982, he completed a Request for Regular Army Reenlistment or Extension, DA Form 3340, requesting reenlistment for six years. On 27 October 1982, he reenlisted for 6 years for the Regular Army Reenlistment Option and a Selective Reenlistment Bonus (SRB). His reenlistment contract, item 9a, shows that he had 3 years, 6 months, and 28 days of total active military service. He was later informed that he did not meet the continuous service eligibility requirement to receive the SRB.

6. On 31 October 1985, the applicant extended his enlistment to a period of 7 years and 2 months. He extended again in January 1989 and reenlisted in November 1989 for no bonus entitlement. He has had continuous service to the present.

7. In the processing of this case, an advisory opinion was obtained from the Retention Management Division, U. S. Total Army Personnel Command (PERSCOM). That office recommended disapproval of the applicant’s request. That office reviewed the facts surrounding the applicant’s 27 October 1982 reenlistment and determined that the career counselor erred in not properly advising him on his eligibility for the SRB. However, they noted that in accordance with U. S. Code, Title 37 he would not have met the reenlistment eligibility criteria of at least 21 months of continuous active duty for an SRB even if his reenlistment date were changed to 27 November 1982. (With an enlistment date of 10 March 1981, the 21 months of continuous active duty requirement would have been met on 10 December 1982.)

8. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He rebutted that he had asked his career counselor about reenlisting for an SRB that was in effect October 1982. The career counselor performed an eligibility check, told him he was eligible and would receive 50 percent of the SRB after his reenlistment with annual payments on each October thereafter, and asked him to select a reenlistment date. He selected 27 October 1982. On 30 October 1982, he went to finance to collect his 50 percent of the SRB and finance told him to go back and see the career counselor. The career counselor told him he (the counselor) made an error and there was nothing that could be done. He was reassigned to Germany on 29 April 1983. Once there, he explained to his new career counselor what happened. The career counselor said he was going to send a packet to the Board and it would take a year to get an answer. He was assigned to Fort Hood, TX in April 1985. He again took the problem to his career counselor, who took his contract to finance, and finance paid him his 50 percent and two years of annual payments. In June 1985, however, finance took the monies back. He received no-pay due for one year. He provides an extract from Army Regulation 601-280 showing his career counselor did not operate in accordance with that regulation. He also provides an extract from U. S. Code, Title 10, section 308 which makes no reference to a 21-month continuous active duty requirement.

9. Army Regulation 601-280 prescribes criteria for the Total Army Retention Program. At the time, paragraph 3-1 stated that enlisted members of the Regular Army who had insufficient service remaining on their current enlistments to satisfy service requirements would be afforded the opportunity to elect a discharge for the convenience of the government for the purpose of immediate reenlistment. Paragraph 4-8b stated that all personnel reenlisting to meet time remaining requirement would be reenlisted under option table 4-1 (Regular Army Reenlistment Option). Table 4-1, line 3c stated that a soldier would reenlist at any time during the last 3 months of current term of service unless reenlisting to meet a service-remaining requirement as provided in chapter 3. Line 6b stated that reenlistment would be accomplished and all required personnel records prepared or completed prior to the individual’s reassignment.

10. Effective January 1998, U. S. Code, Title 37, section 308a(1)(A) was amended to provide that a member of a uniformed service who has completed at least 17 months of continuous active duty (other than for training) but not more than 14 years of active duty may be paid a reenlistment bonus. Prior to this amendment, the requirement was that a member have completed at least 21 months of continuous active duty.

CONCLUSIONS:

1. It appears the applicant’s career counselor may have erroneously included his prior active duty in determining his eligibility to receive the SRB and therefore improperly counseled him concerning his eligibility for the SRB. He was not required to reenlist on 27 October 1982 (his expiration term of service was not until 9 March 1985). He was required to reenlist so early only to meet the service-remaining requirement for assignment to Germany. He was not assigned to Germany until April 1983 and had until his reassignment date to reenlist.

2. The applicant would have met the 21 months of continuous active duty requirement on 10 December 1982 (a Friday). Had his reenlistment taken place on the following Monday, 13 December 1982, he would have met the eligibility requirement to receive the SRB.

3. It appears the applicant attempted several times to correct his career counselor’s error. While the Board recognizes that the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties, and notwithstanding the advisory opinion (which may have recommended disapproval only because the “or later” portion of the applicant’s request was added after PERSCOM provided the advisory opinion), the Board believes that it would be in the interest of justice and equity to grant the full relief requested.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by voiding his reenlistment of 27 October 1982 and showing he reenlisted on 13 December 1982 for the same options.

2. That the applicant’s subsequent extensions be considered to be valid.

3. That the applicant be paid the Selective Reenlistment Bonus due him as a result of the above records correction.

BOARD VOTE:

__TSK__ __JTM__ __HBO___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Ted S. Kanamine___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063146
SUFFIX
RECON
DATE BOARDED	2002/07/11
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	112.05
2.	128.05
3.
4.
5.
6.