MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2001065237

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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, that the annexes listed in item 8 of his DD Form 4/1 (Enlistment/Reenlistment Document) be corrected to show the codes "A, E, K" instead of "A, B." He also requests, in effect, payment of bonuses under the Enlistment Bonus Program and the Montgomery GI Bill (MGIB) Kicker Program in conjunction with his enlistment on 26 March 1999.

APPLICANT STATES: That his DD Form 4/1 was incorrectly prepared to reflect the annexes as "A,B" instead of "A,E,K." He contends that the bonus addendum and the MGIB Kicker contracts were not prepared by the Military Entrance Processing Station (MEPS) and he was incorrectly placed in the wrong unit at the time of his enlistment.

In support of his application, the applicant submits a copy of his NGB Form
5435-1-R (Statement of Understanding-The Army National Guard Montgomery GI Bill Kicker Program); a portion of his DD Form 1966 (Record of Military Processing-Armed Forces of the United States); a Fiscal Year (FY) 1999 Unit Bonus Matrix; a FY1999 MOS [military occupational specialty] Bonus Matrix; two Memorandums for Record; two memorandums; three letters; and a portion of his DD Form 4; and a Pennsylvania National Guard-Educational Assistance Program (EAP) addendum.

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

The applicant enlisted in the Army National Guard on 26 March 1999 for a period of 8 years at the Military Entrance Processing Station (MEPS) located in Harrisburg, Pennsylvania. He is currently serving in the Army National Guard in the rank of specialist.

During enlistment processing, the applicant initialed his DD Form 4/1 under Section B (Agreements), indicating that the agreements in this section and attached annexes were all the promises made to him by the Government. In item 8 of his DD Form 4/1, it is indicated that additional details of the applicant’s enlistment were listed on annexes "A" and "B". The records available to the Board do not contain annexes A and B.

Item 32a of Section IV (Certification) of the applicant’s DD Form 1966/3 shows the options for which the applicant enlisted. These options included enlistment in MOS 63Y, assignment to Company F, 104th Aviation Battalion in paragraph and line number 10705, and participation in the MGIB Kicker Program, the Enlistment Bonus Program, and the Pennsylvania EAP.

Section VI (Remarks) of the applicant’s DD Form 1966/3 shows the entry “CO F 104TH AVN BN” is lined through, but the unit identification code (UIC) originally listed on the DD Form 19966/3 has been changed to “WPT1AA” [the UIC for Company F, 104th Aviation Battalion]. Section VI of this form also shows that the applicant’s MOS “67Y” has been lined through and replaced with MOS 68D, MOS 93C has been lined through and replaced by MOS 67Y and the paragraphs and line numbers for these MOS’s have been lined through and changed. The Pennsylvania Army National Guard Recruiter, an Army staff sergeant authenticated and dated this DD Form 1966/3 in three places on 26 March 1999 and the applicant signed this form and initialed this form on 26 March 1999.

The applicant provided a copy of his NGB Form 5435-1-R (Statement of Understanding) for the MGIB Kicker Program, dated 26 March 1999. In Section V (Entitlement) of this document, he acknowledged that he was entitled to the MGIB-SR [Selective Reserve] Kicker Program. There is no record of a contract or control number for the MGIB Kicker Program.

The applicant submitted a copy of his 5 April 1999 letter, addressed to whom it may concern. In this letter the applicant states that he was enlisted in MOS 68D, not 67Y, and that he “did not go in the unit [he] so dearly wanted to be in—CO F 104th AVN BN” [Company F, 104th Aviation Battalion]. He writes further that it is now possible to get a position as a 67Y and that he wants to be transferred from Detachment 1, Company D, 2nd Battalion 104th Aviation to Company F, 104th Aviation. The applicant concludes this letter by stating that he was unaware of the changes “imposed” on his enlistment contract and neither his recruiter or the MEPS counselor fully explained all the implications to him.

The applicant provided a 5 April 1999 memorandum from the warrant officer in command of Detachment 1, Company D, 2nd Battalion 104th Aviation. This memorandum conveys a request for transfer of the applicant from Detachment 1, Company D, 2nd Battalion 104th Aviation to Company F, 104th Aviation. The memorandum states the basis for this request is that the applicant was erroneously enlisted in Detachment 1, Company D, 2nd Battalion 104th Aviation and that he was informed that he would be in a “67Y slot” in Company F, 104th Aviation. There is no evidence whether or not this request for transfer was acted upon by officials of the Pennsylvania Army National Guard.

The applicant provided a copy of a Memorandum for Record, dated 31 January 2000, which shows that the colonel assigned as the Military Personnel Officer of the Pennsylvania Army National Guard approved correction of item 8 of the applicant’s DD Form 4/1 to show the entry "Annex(es) A, B (sic E), K." The applicant concurred with the correction to his Enlistment/Reenlistment Documents.

The applicant provided a copy of a 31 July 2001 Memorandum for Record signed by a sergeant major assigned to the Pennsylvania Army National Guard Recruiting and Retention Operations Office. The sergeant major wrote that a review of the applicant’s records and the Selected Reserve Incentive Program (SRIP) for Fiscal Year 1999 indicates that a bonus and GI Bill Kicker would have been available to the applicant. The sergeant major concluded his memorandum with the statement: "No soldier slotted in excess is eligible for any bonuses."

On 24 August 2001, the Pennsylvania Army National Guard Military Personnel Officer submitted a request for exception to policy to the Chief of the Army National Guard Human Resources Policy and Programs Division. This exception to policy was submitted to allow the applicant to receive an enlistment bonus and MGIB Kicker based on the facts the applicant was enlisted in the wrong unit, the required addendums were not prepared, official documents were not prepared to correct the errors after the fact, the unit underwent reorganization, and unit personnel did not know how to correct the situation.

By memorandum, dated 6 September 2001, the Chief of the Army National Guard Human Resources Policy and Programs Division denied the request for exception to policy essentially because eligibility for the enlistment bonus and MGIB Kicker were not established at the time of enlistment and required control numbers were not obtained from the State Incentive Manager. He concluded that this eligibility cannot be established after the fact and that the options available to the applicant were to continue to serve without a bonus, to request discharge for erroneous enlistment or to appeal to the Army Board for Correction of Military Records (ABCMR).

On 2 November 2001, the Pennsylvania Army National Guard Military Personnel Officer advised the applicant’s father, a Chief Warrant Officer Four, that the exception to policy to allow the applicant to receive an enlistment bonus and MGIB Kicker benefits was denied. The Personnel Officer also wrote that the request for exception to policy in the applicant's case was denied because the applicant's eligibility was not established at the time of enlistment by completion of the required contracts and receipt of the appropriate control numbers. He further wrote that the options available to the applicant were to continue to serve without a bonus, to request discharge for erroneous enlistment or to appeal to the ABCMR.

The applicant provided a copy of an 8 November 2001 letter to his father from the Pennsylvania National Guard Inspector General’s (IG) Office. This letter essentially stated that the IG inquired into the matter of the applicant’s entitlement to an enlistment bonus and MGIB Kicker benefits and found that the MEPS made several irreversible mistakes which precluded the applicant from receiving the enlistment bonuses. The IG concluded that the applicant was enlisted in the wrong unit and was enlisted in a bonus MOS, but the MEPS did not prepare the contract to include these bonuses. The IG also found that the codes entered on the DD Form 4/1 were entered incorrectly, and the Bonus Addendum and Kicker Contract were not prepared and that a memorandum for record was prepared to correct the codes; however, there was no official documentation prepared to back up the memorandum for record. In conclusion, the IG recommended that the applicant request discharge for erroneous enlistment, continue to serve, or appeal the National Guard Bureau denial to the ABCMR.

The applicant also provided a copy of the FY 1999 MOS Bonus Matrix for the period 1 October 1998 to 31 March 1999. This matrix does not list MOS 63Y. This matrix shows that MOS 67Y was authorized a $2,500 Hard To Fill Enlistment Bonus and that MOS 68D was authorized a $2,500 Hard To Fill Enlistment Bonus.

The applicant provided a copy of the FY 1999 Unit Bonus Matrix for the period 1 October 1998 to 31 March 1999. This document shows that Company F, 104th Aviation Battalion was authorized a Hard To Fill Enlistment Bonus in the amount of $2500.00 if the individual is enlisting in a "bonus MOS" and was authorized the MGIB Kicker if the individual enlisted in a "bonus MOS." This matrix also shows that Detachment 1, Company D, 2nd Battalion 104th Aviation was authorized a Hard To Fill Enlistment Bonus in the amount of $2500.00 if the individual enlisted in a "bonus MOS" and the MGIB Kicker if the individual enlisted in a "bonus MOS."

National Guard Regulation (NGR) 600-7 (Selected Reserve Incentive Programs) implements and governs the enlistment incentive programs authorized within the Army National Guard. It governs incentive benefits, eligibility criteria and entitlement, termination, suspension and recoupment requirements. Chapter 2 of this regulation provides for the Selective Reserve Incentive Program (SRIP) – Nonprior Service Enlistment Bonus. This chapter essentially authorizes a cash bonus incentive in the amount of $2500 to an eligible person who enlists in the Army National Guard for a critical skill in a bonus unit. Eligibility for this cash incentive is based on a contract for eight years of service, non-prior service status, assignment to a position vacancy, secondary school graduate, an Armed Forces Qualification Test Score of 31 or higher, and completion of an Army National Guard Enlistment Bonus Addendum as part of the enlistment contract. This bonus is not authorized to personnel enlisting to qualify for a Technician or Active Guard Reserve position or to personnel assigned to excess positions of the authorized or required strength of the unit's Modified Table of Organization and Equipment (MTOE).

Paragraph 2-5 of NGR 600-7 states that enlistment bonus contracts are valid only with bonus control numbers which are issued by the State Incentives Office directly to the Military Enlistment Processing Station counselors. Further this regulation requires the State Incentive Manager to verify accession packets as prescribed by State policy for bonus control numbers and the accuracy of enlistment documents, to include the enlistment contract (DD Form 4 series), the enlistment bonus agreement addendum (NGB Form 600-7-1-R-E), critical skill and bonus unit eligibility, valid position vacancy, and required educational level. The regulation also requires that the State Incentive Manager establish a bonus pay account immediately after the soldier's enlistment.

Title 10, United States Code, Section 16131 (10 USC 16131) established an educational assistance program to encourage membership in the Selected Reserve of the Ready Reserve. This program is commonly referred to as the Montgomery GI Bill Selected Reserve Kicker. For personnel who enlist in the Army National Guard in military occupational specialties authorized a bonus, the enlistee may be authorized educational assistance in the amount of $251, $188, or $125 per month based on full or part-time participation in qualifying educational programs. Assistance under this law is authorized to any person who enlists for service in the Selected Reserve for a period not less than six years after 30 June 1985. The termination of this benefit occurs ten years from the date of entitlement or upon the date of separation from the Selected Reserve whichever occurs first.

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 considered the applicant’s request for correction of his enlistment contract to allow for payment of an enlistment bonus and benefits under the MGIB Kicker Program.

2. The Board reviewed the evidence submitted by the applicant.

3. Records show the applicant enlisted in the Pennsylvania Army National Guard on 26 March 1999 for options described in item 32a of the DD Form 1966/3, specifically: MOS 63Y; Company F 104th Aviation Battalion; paragraph and line number 10705; and for MGIB with Kicker, enlistment bonus, and Pennsylvania Education Assistance Program.

4. At the time of enlistment, the applicant, with his recruiter present, enlisted in MOS 68D for assignment in Detachment 1, Company D, 2nd Battalion 104th Aviation in paragraph and line number 408-16.

5. At the time of enlistment, the codes "A, B" were entered in item 8 of the applicant’s DD Form 4/1 (Enlistment/Reenlistment Document) to reflect annexes to the enlistment contract.

6. Approximately 10 days after his enlistment, the applicant requested transfer to MOS 67Y and assignment to Company F, 104th Aviation Battalion. There is no evidence whether or not this transfer was approved and/or executed.

7. Approximately nine months after the applicant’s enlistment, the Military Personnel Officer of the Pennsylvania Army National Guard attempted to correct the errors in the applicant’s enlistment contract by directing that the applicant's Enlistment/Reenlistment Document be corrected to show annexes "A, B(sic E), K."

8. A senior official in the Pennsylvania Army National Guard Recruiting and Retention Operations Office opined that the unit and the MOS in the applicant’s case were eligible for enlistment incentives sought by the applicant. However, this official also states that soldiers in an excess status were not authorized these enlistment incentives.

9. Records show that the Military Personnel Officer of the Pennsylvania Army National Guard requested an exception to policy to provide the applicant retroactively with an enlistment bonus and the MGIB with Kicker. The Chief of the Army National Guard Human Resources Policy and Programs Division denied the request for exception to policy based because the applicant’s eligibility for these enlistment incentives was not established at the time of enlistment and eligibility cannot be established after the fact.

10. Records show that the Pennsylvania National Guard IG inquired into the matter of the applicant’s enlistment bonus and MGIB Kicker benefits. The IG determined that numerous irreversible mistakes occurred during enlistment process at the MEPS.

11. The applicant and his father were advised by Pennsylvania National Guard officials of the options available to the applicant in this case, specifically requesting discharge based on erroneous enlistment, continuation in service without an enlistment bonus and without MGIB educational benefits, or appealing to the ABCMR.

12. In reviewing the evidence in this case, the Board noted several key facts.

         a. There is no evidence in the documents provided by the applicant that his bonus contract was validated with bonus control numbers issued by the State Incentive Manager.

         b. Army National Guard Regulation requires the State Incentive Manager to verify accession packets as prescribed by State policy for bonus control numbers and the accuracy of enlistment documents, to include the enlistment contract (DD Form 4 series), the enlistment bonus agreement addendum (NGB Form 600-7-1-R-E), critical skill and bonus unit eligibility, valid position vacancy, and required educational level. The regulation also requires that the State Incentive Manager establish a bonus pay account immediately after the soldier's enlistment.
         c. On the day of enlistment, the applicant accepted enlistment in MOS 68D, not 67Y, and assignment to Detachment 1, Company D, 2nd Battalion 104th Aviation, not Company F, 104th Aviation Battalion.

         d. Notwithstanding all of the claims by officials of the Pennsylvania National Guard that the applicant was erroneously enlisted, the Board noted the admission in the applicant’s 5 April 1999 letter that he was enlisted in MOS 68D for assignment to Detachment 1, Company D, 2nd Battalion 104th Aviation.

         e. Furthermore, the Board noted that the recruiter was present at the MEPS at the time of the applicant’s enlistment in order to assist in the enlistment process and to explain the reasons for any exceptions or changes to the enlistment contract.

         f. The Board also noted that a senior recruiting official in the Pennsylvania Army National Guard determined that the applicant could have received enlistment incentives based on the MOS and unit for which he was enlisting. However, that official also stated that soldiers in an excess status were not eligible for the incentive now sought by the applicant. The Board draws the inference from this statement that the applicant was enlisted in an excess status which denied him entitlement to the enlistment bonus and MGIB Kicker program.

13. Based on the foregoing, the Board determined that the applicant, at the time of his enlistment, was not eligible for and/or was not authorized by competent authority entitlement to the enlistment incentives he now seeks. These determinations are based on the absence of official records or other conclusive evidence which show:

         a. that the Pennsylvania Army National Guard State Incentives Manager provided bonus control numbers to the MEPS at the time of the applicant's enlistment;

         b. that the Pennsylvania Army National Guard State Incentives Manager failed to verify the applicant's accession packet;

         c. the reason the applicant was enlisted in MOS 68D instead of 67Y;

         d. the reason the applicant was enlisted in Detachment 1, Company D, 2nd Battalion 104th Aviation instead of Company F, 104th Aviation;

         e. the final action taken on his request for transfer; and

         f. that, contrary to the statement by the Pennsylvania Army National Guard recruiting official, that the applicant was not in an excess status.

14. Based on all of the foregoing, there is insufficient evidence upon which to base correction of the applicant’s enlistment contract and/or to grant entitlement to an enlistment bonus and the MGIB Kicker.

15. 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 either requirement.

16. 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

CLA_____ JTM_____ MHM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001065237
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020905
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	128.0500
2.	112.0000
3.
4.
5.
6.