PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2002080230

         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Frank C. Jones, II		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 he be paid a broken service selective reenlistment bonus (BSSRB). In effect, he is asking that his enlistment contract be honored.

3. The applicant states that he was promised a BSSRB by his recruiter in return for his enlistment in the Regular Army (RA) as a staff sergeant (SSG/E-6) in military occupational specialty (MOS) 98C, Signals Intelligence Analyst. After reporting for duty, he was informed that he was not entitled to the BSSRB.

4. The applicant’s military records show that he served on active duty as a Signals Intelligence Analyst for 14 years, 1 month, and 2 days from 27 June 1978 to 28 July 1992, when he was honorably released and transferred to the USAR (United States Army Reserve). He was honorably discharged from the USAR on 21 June 1994.

5. On 23 August 2001, the applicant enlisted in the USAR for a period of 6 years. On 14 February 2002, the applicant reenlisted in the RA as an SSG/E-6 for a period of 4 years and for the following incentives: assignment in MOS 98C; assignment to Fort Sam Houston, Texas; and a BSSRB (with the exact amount of the bonus to be determined after the applicant entered on active duty).

6. The applicant's first duty station was Fort Myer, Virginia, where he was a foreign language student (Uzbek) at the Foreign Service Institute, Arlington, Virginia. While in language school, he learned that he was not eligible for a BSSRB. His chain of command, acknowledging the applicant's ineligibility, submitted paperwork to pay the BSSRB as an exception to policy. On 4 October 2002, Retention Management Division, Total Army Personnel Command (PERSCOM) disapproved the request to pay the applicant a BSSRB as an exception to policy. In so doing, they stated that the applicant’s MOS (98C) did not qualify for a BSSRB and offered that he could request separation based on an unfulfilled enlistment contract.

7. Apparently, the applicant's chain of command persisted in attempts to obtain an exception to policy to permit payment of the BSSRB. On 15 July 2003, PERSCOM again denied the request. This time, PERSCOM stated that, in accordance with Army Regulation (AR) 601-210, paragraph 3-35, the applicant did not qualify for a BSSRB because he had more than 14 years of RA service at the time of enlistment. PERSCOM again stated that the applicant could request separation based on an unfulfilled enlistment contract.

8. In the processing of this case, this Board provided the applicant the opportunity to rebut the 15 July 2003 PERSCOM denial of his request for payment of his BSSRB. The applicant responded stating that, while he agreed that his recruiter erred by offering him the BSSRB, the recruiter assured him that he was entitled to it and he had no reason to think otherwise. He stated that he was informed that, as long as he was qualified to work in MOS 98C and remained on active duty, he would receive the BSSRB. He said that he has upheld his enlistment contract; that he has learned a difficult language and is now an invaluable Army asset. He stated that he hopes that he won't have to throw it all away by having to take a chapter 7 [AR 635-200] administrative discharge due to recruiter error and PERSCOM's unyielding stance on the matter of the bonus. In conclusion, the applicant asked that the Board review not only the facts, but also the situation as a whole and grant his request to uphold his enlistment contract as written.

9. A staff member of this Board noted a discrepancy between the 4 October 2002 PERSCOM denial and PERSCOM's MILPER Message 02-040, dated 30 November 2001, subject: Selective Reenlistment Bonus (SRB) and Targeted Selective Reenlistment Bonus Program. The message clearly indicates that MOS 98C was eligible for the BSSRB under Zone 1C; however PERSCOM's 4 October 2002 denial stated that the MOS 98C was not entitled to a BSSRB. The staff member contacted the PERSCOM Retention Management Division requesting clarification. PERSCOM advised that the first denial based on a non-qualifying MOS was incorrect; however, the second denial based on exceeding the 14-year limit on RA service was valid.

10. Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program, prescribes eligibility criteria governing the enlistment of persons, with or without prior service into the RA and the USAR. It states, in pertinent part, that every effort will be made to honor all promises made at time of enlistment or re-enlistment and that, in order to meet commitments, recruiting personnel will: comply with specific option procedures; promise only what is authorized; follow procedures to report and assign persons enlisted for an option; and detect errors promptly so that the enlistee may be correctly assigned under his or her enlistment commitment. It also prescribes the eligibility criteria and administrative requirements for the BSSRB program.

11. Army Regulation 635-200, Enlisted Personnel, sets policies, standards, and procedures to ensure the readiness and competency of the Army while providing for the orderly administrative separation of soldiers for a variety of reasons. It provides, in pertinent part, that a soldier may request discharge by reason of a defective or unfulfilled enlistment or re-enlistment agreement.

CONCLUSIONS:

1. On 14 February 2002, the applicant enlisted in the RA for 4 years in pay grade E-6 and in MOS 98C. One of the applicant's enlistment options was the BSSRB program and, in accordance with MILPER Message 02-040, his chosen MOS was eligible for a Zone 1C bonus.

2. The applicant did not qualify for a BSSRB because his prior RA service totaled 14 years, 1 month, and 2 days -- 1 month and 2 days beyond the regulatory maximum limit of 14 years on prior RA service. Through recruiter incompetence, this was not detected and the applicant was reenlisted with a promise of a BSSRB.

3. The applicant was reenlisted with the promise of receiving a BSSRB. At the time of reenlistment, he was married with a family. Based in part on the promise of a monetary bonus, he left civilian life and reentered the RA; he left his job and he moved his family from Texas to Fort Myer. After arriving at Fort Myer, he learned that he was not eligible for the BSSRB and, approximately 15 months after enlisting, he learned that he could accept the fact that he would not receive a BSSRB, or claim a defective reenlistment, leave the Army, and go back to Texas.

4. The applicant was not treated in a fair and equitable manner. The applicant clearly did not meet the established regulatory criteria for the BSSRB; however, the Army recruiter who enlisted him should have known that he did not meet the criteria and should have so advised him. Likewise, the recruiting officials who review contracts should have discovered the error and resolved it prior to the applicant's reporting for active duty. The applicant met his enlistment obligations in full and the Army should honor the promise made to the applicant in his enlistment contract by awarding him the BSSRB as an exception to policy. Voiding the enlistment contract is not a fair or realistic option; it would leave the applicant at a serious disadvantage when considering the time, effort and expense he has invested in his current enlistment.

5. Notwithstanding the PERSCOM decision of 15 July 2003, the Board recommends that, as an exception to policy, the applicant be paid the BSSRB at the minimum rate necessary to qualify for payment of the BSSRB under the criteria in effect at the time, without regard to his current grade, prior service status, or time in service.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that, as an exception to policy, the individual concerned is authorized a Zone 1C payment of a BSSRB for his 4-year enlistment of 14 February 2002 in MOS 98C, under the minimum criteria necessary to qualify for that payment.

BOARD VOTE:

__rvo___ __bje___ __fcj___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Raymond V. O'Connor, Jr.
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080230
SUFFIX
RECON
DATE BOARDED	20030904
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.0500
2.
3.
4.
5.
6.