MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 June 2002
         DOCKET NUMBER: AR2001065132

         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
Mr. Walter Avery, Jr.		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
M . Thomas Lanyi		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)

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APPLICANT REQUESTS: In effect, a new enlistment contract and a good unit that he can trust.

APPLICANT STATES: In effect, that he is seeking the payment of his Selected Reserve Incentive Program (SRIP) bonus. He has worked with several unit commanders and administrative personnel to resolve all of the issues regarding his reenlistment contract but to no avail. For several months after reenlisting, he honored the obligations of his contract, and remained in a good drill status, however, the U.S. Army Reserves (USAR) failed to meet its obligations by not paying him his bonus or making payments under the Educational Loan Repayment Program. The frustration and degradation he felt from the inaction and inability of the USAR to resolve the contractual issues prompted his reluctant transfer to the Individual Ready Reserves (IRR), which appeared to be his only recourse. He wishes to remain a member of the USAR, however he cannot if the USAR does not honor his contract.

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

He was honorably discharged from the Regular Army on 14 May 1982. He was credited with 2 years, 11 months and 29 days net active service and 2 years, 7 months and 11 days total prior active service. On 9 December 1998, at the grade of E-4, he signed an enlistment contract to serve 3 years in the USAR, with a $2,500 SRIP, prior service enlistment bonus. His military occupational specialty (MOS) was 88M, Motor Transport Operator.

On 13 April 1999, he was discharged due to a defective enlistment. The reason for the defective enlistment was not available in the record.

On 17 April 1999, the applicant signed a six year enlistment contract with a $5,000, SRIP, prior service enlistment bonus and a maximum student loan repayment of $10,000. A 16 January 2001 counseling record and 23 May 2001 congressional response reflect that the enlistment bonus was not paid because the applicant's records incorrectly indicated that he had over 22 years of service. The maximum allowable service was 10 years.

On 22 October 1999, he was reassigned to the IRR. On 20 April 2001, the orders were amended to reflect that the reason for his reassignment was, "personal cogent reasons."

On 20 May 2000, he was reassigned from the IRR to the 250^th Transportation Company.




On 16 January 2001, the commander of the 250^th Transportation Company prepared a Development Counseling Form (DA Form 4856). The commander stated that the applicant upon his assignment to the unit informed him that he had never received his enlistment bonus. However, he did not inform them of the prior actions taken by his previous commands to help him obtain the enlistment bonus. The commander pointed out that there was evidence that during a 7 January conversation, with the former unit's Retention Noncommissioned Officer, the applicant was informed that if he went into the IRR he would lose his bonus. The commander told the applicant to provide him with a statement explaining why he thought he would not lose his entitlement to the bonus when he went into the IRR. It was indicated that the applicant had become impatient with his former unit when after six months his records had not been corrected. The applicant then waived his options to a bonus and elected to go into the IRR. While it is unclear, it appears the commander chastised the applicant for improperly seeking assistance outside of the chain-of-command. The commander stated he would make a recommendation after he received the requested statement from the applicant and records from his former unit.

On 5 April 2001, the applicant sought congressional assistance to terminate his contractual obligations to the USAR based on a breach of contract.

On 22 April 2001, the commander of the 250^th Transportation Company prepared another DA Form 4856. In the "Purpose of Counseling" block, he indicates that the applicant had informed his command that he had not received his enlistment bonus from his 17 April 1999 contract. The purpose of the counseling session was to resolve this issue. Present at the session was the applicant, his company commander, a legal assistance officer representing the applicant, the battalion and group command sergeants major, his first sergeant, and the personnel staff noncommissioned officer. During the counseling, the applicant raised for the first time, the belief that he was not an E-4 and appeared without any rank on his uniform. The applicant was advised of the status of his prior service enlistment bonus, enlistment contract requirements, and rank and pay status. The block titled “Key Points of Discussion,” of the DA Form 4856, indicates that the applicant was advised of the following: 1) That his enlistment contact was valid. 2) That he was entitled to his enlistment bonus by written memorandum dated 21 April 2001. 3) To avail himself of the rights and benefits under the contract, the applicants was advised that he needed to continue to honor the terms of his contract and continue to drill with the unit, while the command continued to work on obtaining reinstatement of his bonus. 4) The applicant stated that he had been reduced in rank, however a review of pay and personnel records showed that he was in fact an E-4 assigned to an E-5 position in the unit. No one in the chain of command had taken any action to reduce him. 5) The applicant was informed that he has accrued nine unexcused absences as of 22 April 2001. 6) After being informed and advised of all of the above, it was pointed out that the applicant had voluntarily elected transfer to the IRR and subsequently signed a request for such a transfer. The applicant indicated that he understood that this action compromised his rights and benefits under the enlistment contract dated 17 April 1999, and voided his prior service enlistment bonus eligibility. The applicant indicated his agreement by checking the block "I agree" in the “Session Closing” block of the DA Form 4856, and signed the form showing that he agreed with the commander's description of the meeting. He made no comments. On 25 April 2001, orders were issued releasing him from the 250^th Transportation Company and reassigning him to the IRR for completion of his contractual obligation.

On 23 May 2001, in response to a congressional inquiry, the USAR Command prepared a response informing the congressman that in accordance with Army regulations, a soldier must maintain membership in a Troop Program Unit for the duration specified by his contract to continue to receive the SRIP benefits. The SRIP benefits may be suspended for a maximum of 12 months if the soldier elects reassignment to the IRR due to cogent personal reasons. In this situation, the soldier must rejoin a TPU, within 12 months, in the same MOS for which the incentive was authorized. Within 30 days of rejoining a TPU, the soldier must also extend his enlistment contract for the same period of time he was in the IRR, in order to serve out the full incentive contract period. A soldier who does not comply with these requirements is subject to termination of his SRIP and possible recoupment. The initial payment of the applicant's bonus was not paid due to an error in determining his total military service. Correcting the errors took several months, during which time the applicant requested reassignment to the IRR. As a result of his reassignment to the IRR he was not eligible to receive the enlistment bonus. On 20 May 2000, the applicant was reassigned from the IRR to the 250^th Transportation Company and the unit initiated a request for reinstatement of his enlistment bonus payment. However, the Reserve Component Pay Support Office at Fort McCoy, Wisconsin, denied the request because the applicant failed to extend his enlistment within 30 days of rejoining the unit. He was reassigned to the IRR again effective 25 April 2001.

On 22 May 2002, the applicant was reassigned from the IRR to the 420^th Transportation Company.

Army Regulation 135-7, Incentive Programs, provides in pertinent part, that SRIP is an enlistment incentive program. These incentives serve as an extraordinary measure to assist the Army National Guard and USAR in meeting and sustaining manpower requirements.






The same regulation provides that recipients of a SRIP incentive will be suspended from the incentive program during authorized periods of nonavailability. Incentive pay is not authorized for an approved transfer to the IRR for cogent personal reasons. Suspension is permitted for up to one year. Nonavailability in excess of the maximum period will be cause for ending incentive entitlement.

The same regulation also provides that reinstatement in the SRIP and resumption of subsequent incentive payments following a period of authorized nonavailability is not guaranteed. Soldiers who complete a period of nonavailability and request reinstatement of eligibility for the SRIP and resumption of subsequent payments must: (1) Complete the period of authorized nonavailability within 1 year. (2) Rejoin an existing vacancy in the Selected Reserve authorized the soldier's grade and military occupational specialty in a bonus authorized unit, or a bonus authorized military occupational specialty. (3) Extend their enlistment or reenlistment agreement within 30 days in order to serve out the full incentive contract period in the Selected Reserve. A soldier who does not comply with all of the requirements will be subject to termination of SRIP with recoupment action required.

Army Regulation 135-91, Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures, provides in pertinent part that soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any one-year period a total of nine or more unexcused absences from scheduled inactive duty training.

The same regulation provides that when it has been determined that an USAR enlisted soldier is an unsatisfactory participant; the immediate commander may initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant. Enlisted soldiers assigned to an USAR unit are reassigned to the IRR. The commander may also consider grade reduction.

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. The Board has noted the applicant’s contention that he needs a new enlistment contract and a unit he can trust. He asserts that no competent action has been taken to assist him in obtaining his enlistment bonus. However, after carefully evaluating the available evidence, the Board finds this claim is not fully supported.




2. The evidence of record shows that the applicant has had two enlistment contracts and received assistance from his USAR unit commanders, as well as legal and congressional assistance. The applicant initially had a legitimate complaint concerning the lack of payment of his SRIP enlistment bonus, but unfortunately, it appears he grew impatient, stopped attending drill, and requested assignment to the IRR. After entering the IRR he then requested
reassignment from the IRR to another USAR unit. It appears that the applicant failed to inform the new command of the actions already taken on his behalf. Furthermore, it appears that when he entered the IRR, he did so with the understanding that he was waiving his claim to the SRIP enlistment bonus. This pattern of reassignment in and out of the IRR and his accumulation of nine unexcused absences only served to weaken and eventually end his claim to the SRIP bonus.

3. The applicant enlisted for a six-year contract on 17 April 1999. He was assigned to the IRR on 22 October 1999, and then reassigned to a unit on 20 May 2000. He again transferred to the IRR on 20 April 2001, and was reassigned to a unit on 22 May 2002, all within a period of 1 year, 1 month and 2 days. Army regulations allow for the suspension of the SRIP incentive for those assigned to the IRR for personal cogent reason for a maximum of only one year. It provides that nonavailablity in excess of one year will be cause for ending the incentive entitlement, and that soldiers who fail to request an extension within 30 days are subject to termination of SRIP and possible recoupment of the benefit. There is no evidence that the applicant requested an enlistment contract extension within 30 days, as required by regulation. In fact, the available evidence suggests that at the 22 April 2001 counseling session, the applicant was informed that if his request for assignment to IRR was approved he would compromise his rights and benefits under the enlistment contract dated 17 April 1999 and void his prior service bonus eligibility. Nonetheless, on 25 April 2001, he requested and was assigned to the IRR. He has since requested and again been reassigned from the IRR, this time to the 420^th Transportation Company.

4. Based on the totality of the facts and circumstances, the Board finds that the applicant is no longer eligible for the SRIP bonus and the decision by the Reserve Component Pay Support Office was proper and equitable and was not the result of administrative error.

5. In his application the applicant made a reference that he was also entitled to the Educational Loan Repayment Program. However, he has made no specific request for assistance or provided any information that the Army has failed to comply with the requirements of the program; therefore, the Board has taken no action on this issue.


6. 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 this requirement.

7. 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

___jns___ ____eja__ ____tl___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065132
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
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.	112.04
2.
3.
4.
5.
6.