RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20050004375


      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. Prevolia A. Harper            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, that his United States Army Reserve
(USAR) reenlistment contract dated 4 December 2004 be voided and reverted
back to the terms of his original contract.

2.  The applicant states that it was discovered, after the fact, that his
reenlistment was not valid because the terms of the contract did not match
his Military Service Obligation (MSO).  The applicant further stated that
he was ineligible to reenlist due to his citizenship.

3.  The applicant provides a self-authored letter, a copy of his
reenlistment contract, and an excerpt from Army Regulation 140-111 (U.S.
Army Reserve Reenlistment Program).

CONSIDERATION OF EVIDENCE:

1.  On 14 November 2001, the applicant enlisted into the USAR for a period
of
8 years, 3 years assigned as a member of a Troop Program Unit and 5 years
assigned to the Individual Ready Reserve.

2.  On 4 December 2004, the applicant initiated an immediate reenlistment
in a USAR Troop Unit for a period of 3 years.

3.  The applicant’s DA Form 5261(Selected Reserve Incentive Program-
Reenlistment Extension Bonus Addendum) shows the applicant reenlisted in
the military occupational specialty 92W10 (Water Treatment Specialist) with
provisions for an enlistment bonus and student loan repayment.

4.  The applicant’s DA Form 1966/1 (Record of Military Processing) shows in
item 6 (Citizenship) his status as “immigrant alien-USA.”

5.  The applicant’s records contain a DA Form 4856 (Developmental
Counseling Statement) which shows the applicant met with his Retention NCO
to discuss his option regarding his reenlistment contract.  Part III
(Summary of Counseling) stated that it was discovered that the reenlistment
contract was invalid because it did not meet the MSO in accordance with
Army Regulation 140-111, Table 2-3, Line 2, which states that the service
term must be equal to or greater than the MSO.



6.  The Counseling Form also noted that because the applicant was not a
U.S. citizen, he was ineligible to reenlist.  Therefore, the Defense
Finance and Accounting Service would not honor his reenlistment contract
and pay the bonus incentives.  The applicant was also counseled on his
options which included transferring to the Individual Ready Reserve (IRR)
and then upon receipt of U.S. citizenship, reenlist in the USAR.

7.  In the processing of this case, an advisory opinion was obtained from
the Chief, Incentives and Budget Branch, Enlisted Accessions Divisions on
30 June 2005.  The advisory opinion concluded that Army Regulation 140-111
precluded a Soldier who is not a United States citizen from serving beyond
the 8-year MSO. Therefore, the reenlistment of 4 December 2004 was valid.
A copy of the advisory opinion was provided to the applicant for comment.
He disagreed with the advisory opinion and provided a further explanation
of the context of his petition.

8.  The applicant explained in a self-authored letter which stated in part,
that he was told during an interview with his retention noncommissioned
officer (NCO) that he could reenlist for 6 years only if he was a United
States Citizen.  However, his citizenship was something he was still
working on and the alternative of a 3-year enlistment was brought up as an
option.  He explained that since his total time in service would not
violate the 8 year rule, it was believed that he was fully qualified for
reenlistment.

9.  The applicant further explained that when he inquired about his
reenlistment bonus, he was notified that his contract was invalid because
he was not qualified for reenlistment based on Army Regulation 140-111,
Table 2-3, Line 2, Note 1, which stated that he must have a service term
equal to or greater than his remaining statutory obligation by whole years.

10.  A revised advisory opinion, dated 15 August 2005 amended the previous
opinion above.  The advisory opinion concluded that the applicant’s
reenlistment of 4 December 2004 was erroneous by statute and policy, a new
term of reenlistment that involves a bonus must exceed the existing MSO.
The advisory opinion recommended that the reenlistment contract of 4
December 2004 be cancelled.

11.  A copy of this advisory opinion was provided to the applicant for
comment
He responded on 24 August 2005 and concurred with the advisory opinion.



12.  Army Regulation 140-111 (USAR Reenlistment Program) prescribes the
policies, responsibilities, and procedures for USAR reenlistment.  Chapter
2-3, Note 1 states, in pertinent part, that reenlistment may be
accomplished at any time prior completion of the statutory MSO.  The term
of service may be 3,4,5, or 6 years.  However, the selected term of service
must be equal to or greater than, the remaining statutory obligation, by
whole years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant initially enlisted in the USAR on 14 November 2001.  An
initial enlistment requires a Military Service Obligation of 8 years.  He
concurrently agreed to a 3-year commitment in a USAR Troop Unit.  As a
result, his MSO was established as 13 November 2009.

2.  On 4 December 2004 the applicant enlisted for an additional 3 years in
a USAR Troop Unit.  His new separation date was adjusted to 3 December
2007, as a result of this reenlistment.  His MSO remained unchanged with a
date of 13 November 2009.

3.  Army Regulation 140-111 precludes a Soldier who is not a United States
citizen from serving beyond the 8 year MSO period.

4.  By regulation, a new term of reenlistment that involves a bonus must
exceed the existing MSO.  Therefore, the applicant’s reenlistment of 4
December 2004 was erroneous.  Therefore, in accordance with the
recommendation of the applicant's chain of command and the advisory
opinion, the applicant's reenlistment contract of 4 December 2004 should be
voided and he may then be transferred to the IRR.  Upon receipt of U.S.
citizenship, he can contact his recruiter in order to reenlist if otherwise
qualified.

5.  Since the applicant was erroneously reenlisted on 4 December 2004
through no fault of his own, it would be unjust to recoup any pay and
allowances that he may have received based on that contract.  Accordingly,
de facto status should be granted in this case and any pay, allowances and
retirement points he earned from 4 December 2004 through the date of
implementation of this case for record purposes be reflected as though
earned while a member of the Individual Ready Reserve.





BOARD VOTE:

__JEA  __  __BPI___  __MJF __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.   voiding his reenlistment contract dated 4 December 2004 and
transferring him to the Individual Ready Reserve on the date of
implementation of this action; and


      b.  showing he served in a de facto status from 4 December 2004, based
on this contract; and any pay, allowances, and retirement points earned are
to be retained and for record purposes reflected as though earned while in
the Individual Ready Reserve.
 .





                                  ___James E. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004375                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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