RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 March 2005
      DOCKET NUMBER:   AR20040000763


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. Antonio Uribe                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, restoration of his rank to major
(MAJ) and payment of incentives promised by the United States Army
Recruiting Command (USAREC).

2.  The applicant states, in effect, that there was a three year delay in
providing him a legally sound explanation for why the Army is not bound by
the contracts it makes with Soldiers.  He claims that he received a
Voluntary Separation Incentive (VSI) when he left active duty as a MAJ in
the Military Intelligence (MI) Corps.  While serving in the United States
Army Reserve (USAR) as an MI MAJ, recruiters induced him to drop his rank
and switch his specialty to 65D (Physician Assistant) by promising that he
could receive both his VSI and recruiting incentives.  However, after
signing his enlistment contract, USAREC officials informed him he could not
receive both the VSI and recruiting incentives and that one would have to
be dropped.  He claims that at this time, he asked for a legally sound
explanation of why they could simply refuse to fulfill their side of the
contract and if they would provide this explanation, he would consider
stopping the VSI payments.  USAREC and the Department of the Army (DA) G-1
delayed a satisfactory explanation for three years and then refused to
settle and consider the issue closed.

3.  The applicant provides a self authored statement with the 20 exhibits
listed on page 2 of his statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 15 March 1995, the applicant was honorably released from active duty
after completing 9 years, 1 month and 5 days of active military service.
At the time, he held the rank of captain (CPT) and was transferred to a
USAR Troop Program Unit (TPU).  The separation document (DD Form 214) he
was issued at the time confirms he separated under the provisions of the
Early Release Program with a VSI.  This document also shows that he was
entitled to an annual VSI payment of $8,608.80 for 18 years.

2.  On 28 February 1998, the applicant was promoted to MAJ in the USAR
while serving as an MI officer in a TPU.

3.  On 15 May 2000, the applicant applied for participation in the Selected
Reserve (SELRES) Recruiting Bonus Program.  The SELRES Recruitment Bonus
Program Contract (USAREC Form 1166-R-E) prepared at the time confirms he
incurred a three-year SELRES obligation to perform duties in specialty
number 65D (Physician Assistant) and that he would be entitled to a
$10,000.00 annual bonus.

4.  On 3 August 2000, the applicant was appointed a CPT in the USAR in
specialty 65D as a Physician Assistant (PA).  His reassignment to an Army
Medical unit was delayed pending the outcome of a conflict of payment of
both the SELRES bonus and VSI that had been identified.

5.  On 17 November 2000, the Health Care Recruiter advised the applicant
that since he was already participating in a Department of Defense approved
program (VSI), he would not be eligible for another incentive program
(SELRES Bonus Program).  The applicant was given the following three
options:  (1) withdraw his application for the PA position in the USAR, (2)
withdraw his Health Program Loan Repayment (HPLR) and Bonus incentive and
maintain his VSI program and proceed with his PA application, or (3)
withdraw his VSI incentive, with the understanding that he would have to
pay back all income already received which could cause complications with
future retirement income and proceed with his
PA application.

6.  On 27 November 2000, the applicant informed USAREC personnel that he
elected an option not provided in their 17 November 2000 correspondence.
He opted to select HPLR and Bonus incentives and to reduce his VSI payments
for the time he was participating in these two programs.  He further
indicated that he would no longer forego his VSI payments when he finished
participating in the HPLR in 2007.  He indicated that he was aware it was
not one of the options provided, but it seemed to be one the statute
governing VSI provided for.

7.  On 4 December 2000, United States Total Army Personnel Command
(PERSCOM), St. Louis, Missouri, Orders Number C-12-033996, released the
applicant from the 75th Division, Fort Sill, Oklahoma and reassigned him to
the 4005 United States Army Hospital (USAH), Lubbock, Texas, effective 3
August 2000.

8.  The applicant continued to pursue relief through USAREC through 2003.
On 9 October 2003, the USAREC Chief, Assistance and Investigations Division
of the Inspector General’s (IG’s) office provided the applicant USAREC’s
final response.  In it, he indicated that the Staff Judge Advocate (SJA)
reviewed the applicant’s contract and the supporting documentation and
provided a legal opinion on the issue.  The SJA opined that the applicant
was not entitled to receive both incentive payments simultaneously, and
that the Appropriations Clause of the United States Constitution prohibited
expenditures not authorized by Congress.  The SJA further indicated that
all statutes and Army Regulations in effect at the time of the execution of
the applicant’s accession are incorporated into and become part of his
accession contract for the purpose of determining whether the promised
benefit(s) constitute a payment authorized by Congress.  It further
indicated that Army Regulation 135-7 (Incentives Program) prohibited his
receipt of an accession bonus or health loan repayment while he was
receiving VSI payments.  The USAREC IG’s office also outlined case law that
supported the SJA’s determination.

9.  On 13 November 2003, the applicant appealed the decision of USAREC not
to provide him a copy of the SJA legal opinion under the Freedom of
Information Act (FOIA) rendered in his case to the Department of the Army
(DA) IG’s office.

10.  On 14 January 2004, the applicant submitted a letter to the DA G-1
requesting a settlement of unpaid recruiting incentive bonuses.

11.  On 31 March 2004, the DA Principal Deputy General Counsel responded to
the applicant’s appeal to the DA IG.  This reply indicated that the full
legal review conducted on the applicant’s case was legally withheld
pursuant to a FOIA exemption.

12.  Army Regulation 135-7 (Incentives Program) prescribes the policies and
procedures for the administration of the Army National Guard (ARNGUS) and
the United States Army Reserve (USAR) incentive programs.  Paragraph 1-15
contains guidance on suspension of Selected Reserve Incentive Programs
(SRIP).  It states, in pertinent part, that SRIP incentives will be
suspended when a member is participating in another Department of Defense
(DOD) approved program.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for restoration of his rank to MAJ and payment
of incentives promised by USAREC because of a three year delay in providing
him a legally sound explanation for why the Army is not bound by the
contracts it makes with Soldiers and the supporting documents he provided
were carefully considered.  However, the evidence of record clearly shows
the conflict in payment of both the SELRES incentives in question and the
VSI was identified early on and that the applicant’s assignment to a
medical unit was delayed pending the applicant’s choice of one of various
options provided.

2.  The evidence also clearly shows that once this conflict was identified,
the applicant had the option of remaining in the USAR as a MAJ, or of
accepting the PA appointment knowing of this conflict, and that he
voluntarily elected to accept the PA appointment and assignment.

3.  Both the USAREC and DA IG reviewed the applicant’s case and after
obtaining a legal review, both arrived at the conclusion that payment of
both the SELRES incentives and VSI was prohibited by law and regulation.

4.  It is clear the applicant never accepted the explanations he was
provided; however, the record shows various responsible officials provided
this explanation on many occasions between November 2000 and March 2004.
The applicant’s dissatisfaction with the explanation alone does not support
a conclusion that there was any error or injustice related to his not
receiving the incentives in question.

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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WTM    ___AU  _  ___RLD__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ____Walter T. Morrison___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000763                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/01                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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