RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060003865


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Maria J.N.Troup               |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 reenlistment contract be
antedated to show that he reenlisted prior to completing 16 years of
military service.

2.  The applicant states, in effect, that while deployed in Iraq with the
98th Division (Institutional Training (IT)) from 28 October 2004 to 19
September 2005, he was assigned to a remote location that had no retention
or administrative support personnel.  He also states that he completed 16
years military service in December 2004 and he later learned that his
reenlistment eligibility window had opened in October 2004.  However, the
applicant adds, because of the absence of retention and administrative
support personnel at his remote location, he was not made aware of the
change in the law pertaining to the reenlistment bonus eligibility criteria
for Reserve Component Soldiers.  Consequently, he did not reenlist until he
began his redeployment in September 2005, whereupon he was processed for an
indefinite reenlistment, but without a reenlistment bonus.  Due to the fact
that the applicant did not reenlist prior to completing 16 years military
service while he was deployed in the theater of operations, he was not
eligible for the tax-free reenlistment bonus.  The applicant further states
that, during his deployment in Iraq, had he been made aware of his
eligibility for a tax-free reenlistment bonus prior to completing 16 years
of military service, he would have ensured that he reenlisted prior to 29
December 2004.

3.  The applicant provides the following documents in support of his
application:  a self-authored statement, dated 20 September 2005; a letter
to this Board from the Assistant Division Commander for Support,
Headquarters, 98th Division (IT), Rochester, New York, dated 22 February
2006; and a letter from the Retention Noncommissioned Officer,
Headquarters, 98th Division (IT), Rochester, New York, dated 30 January
2006, subject:  Correction of Military Records for SFC [Applicant's Name
and Social Security Number], along with five listed enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the
U.S. Army Reserve (USAR) on 6 December 1988, entered active duty in the
Regular Army (RA) on 29 December 1988, completed basic combat training and
advanced individual training, and was awarded MOS 13F (Fire Support
Specialist).  He was honorably separated from the RA on 17 May 1991 after
completing a total of
2 years, 4 months, and 18 days of active service.


2.  The applicant then transferred to the USAR, served in MOS 21B (Combat
Engineer), and was promoted to the grade of rank of sergeant first class
(SFC)/E-7, effective 6 December 1999.  On 20 October 2002, the applicant
reenlisted in the USAR for a period of 3 years.  He was ordered to active
duty on 20 October 2002 in support of Operation Iraqi Freedom.  On 30
October 2005, the applicant was honorably released from active duty and
transferred to Detachment 3, 2nd Battalion, 389th Regiment, 2nd Brigade,
98th Division (IT), Ithaca, New York.

3.  The applicant's military service records contain a copy of DD Form 4
Series (Enlistment/Reenlistment Document - Armed Forces of the United
States), with an effective date of 21 September 2005.  This document shows
that the applicant reenlisted in the USAR for an indefinite period in the
grade of rank of SFC/E-7.

4.  The applicant's military service records contain a copy of a DA From
3540 (Certificate and Acknowledgment of U.S. Army Reserve Service
Requirements and Methods of Fulfillment), Annex A, dated 21 September 2005,
that shows in Section XII (Annual Orientation), Item 2 (Remarks), in
pertinent part, the entry "Reenlistment Bonus Addendum Amendment (DA Form
5261-2-R). Section V - Entitlement:  Start Statement:  I am eligible for a
reenlistment bonus as specified below:  (Individual must initial the
applicable paragraph); Lump Sum Option Statement:"  This item contains five
hand-drawn, 45-degree angled lines through the printed text related to this
item.

5.  In support of his application the applicant provides a self-authored
statement, a letter to this Board from the colonel serving as Assistant
Division Commander for Support, Headquarters, 98th Division (IT), a letter
from the SFC serving as Retention Noncommissioned Officer, Headquarters,
98th Division (IT), letters from his company commander and the command
sergeant major of his unit, and documents related to his reenlistment.  The
letters in support of the applicant's request show that, during his
deployment in Iraq, the applicant was assigned to a base at a remote
location and did not have the benefit of retention or administrative
support personnel.  The documentation relating to the applicant's
reenlistment shows, in pertinent part, that he completed 16 years of
military service on 28 December 2004.  This documentation also shows that
upon redeployment from Iraq and return to CONUS, the applicant reenlisted
on
21 September 2005 and he was not eligible for a reenlistment bonus.

6.  In the processing of this case, an advisory opinion was obtained from
the Chief, Incentives and Budget Branch, Enlisted Accessions Division,
Office of the Deputy Chief of Staff, G1 (DCS, G-1).  The advisory opinion
states that in reviewing the applicant's case, the law pertaining to
reenlistment bonuses as described in Title 37, United States Code, section
308b, was changed as a result of the 2005 National Defense Authorization
Act that raised the maximum total military service for Reserve Component
bonus eligibility from 14 years to
16 years.  This DCS, G-1 advisory official states that, according to
available records, the applicant had accumulated in excess of 16 years
total military service at the time of reenlistment, was eligible to
reenlist prior to the 16-year point, but was not aware of the change in the
law.  The advisory official adds, in this particular case, had retention
personnel so requested, authority to antedate the applicant's contract in
accordance with Army Regulation 140-111 (U.S. Army Reserve Reenlistment
Program), paragraph 5-15, would have been granted by Headquarters,
Department of the Army.  In conclusion, the DCS, G-1 advisory official
recommends that the Board grant the applicant full relief and award the
applicant the $15,000.00 bonus he was entitled to while in a deployed
status.

7.  The applicant was provided a copy of the DCS, G-1 advisory opinion in
order to have the opportunity to respond.  On 9 September 2006, the
applicant provided his concurrence with the advisory opinion rendered by
the DCS, G-1.

8.  Headquarters, Department of the Army, DAPE-MPE, Washington, DC,
All Army Activities (ALARACT) message, 124/2004, subject:  Expanded
Reenlistment Eligibility Periods of USAR Enlisted Soldiers, provides, in
pertinent part, that effective 1 October 2004 the reenlistment eligibility
period for continued USAR membership when assigned to a Troop Program Unit
(TPU) is increased from within 3 months to within 12 months. This document
also shows, in pertinent part, that the reenlistment window of eligibility
for a Selected Reserve Incentive under the provisions of Army Regulation
137-7 remains within 3 months of the expiration date of the current USAR
service agreement, with one exception as follows:  When the President has
authorized the Reserve Components to augment the active forces for any
operational mission or support in response to certain emergencies under
Title 10 United States Code, Section 12302 or 12304, affected Soldiers may
reenlistment outside the 3 month window.

9.  Army Regulation 140-111, paragraph 5-15 (Antedating reenlistment)
provides that an enlisted Soldier may not be held in service beyond the
normal expiration of term of service (ETS) unless the ETS is extended by
law.  When through administrative error, or for the convenience of the
Government, the reenlistment of a Soldier has been delayed through no fault
of the Soldier, the Commander, U.S. Army Human Resources Command (USA HRC),
ATTN: AHRC-PAT-I, may authorize the reenlistment agreement to be antedated.
 No reenlistment will be antedated without the prior approval of the
Commander, USA HRC.  This paragraph also states, in pertinent part, that a
request to antedate a reenlistment with a report of a well-founded claim
will be prepared and sent to Commander, USA HRC, ATTN: AHRC-PAT-I, 9700
Page Boulevard, St. Louis, Missouri 63132-5200, for review and
consideration.  Approval or disapproval will be based on the merits of the
case as outlined in the report.  A request initiated on behalf of a Soldier
assigned to a TPU must be submitted with all of the relevant facts and
pertinent documentation (such as, last reenlistment contract, discharge
orders, and so forth).  The request must be submitted through and endorsed
by each command in the chain of command.  Endorsing commands must provide
an appropriate recommendation.  A request initiated on behalf of a Soldier
serving on active duty in an Active Guard Reserve status must include a
detailed explanation concerning the reason the Soldier's reenlistment was
delayed and how the Soldier was retained on active duty beyond the ETS
date.  The request must also contain the Soldier's official military
records and copies of all active duty orders.  When the Commander, USA HRC
has authorized a reenlistment to be antedated, the DA-authorized date will
be entered in Items 5 of DD Form 4/1, and 13c and 14f of DD Form 4/2.  The
actual date on which the oath is administered will be entered in Item 19f,
DD Form 4/2.  Also enter the following statement in Item 8b (Remarks) on
the DD Form 4/1: "This reenlistment antedated with approval of Cdr, USA
HRC, on (date of USA HRC approval)."  (Note:  This provision of the Army
regulation pertains to Soldiers who have not yet executed the DD Form 4.)

10.  Army Regulation 601-280 (Army Retention Program), Chapter 11 (Forms,
Records, and Reports) provides, in pertinent part, that the DD Form 4 must
be preserved in its original state should it ever be needed in a legal
proceeding.  Therefore, the DD Form 4 will not be amended by "pen and ink"
correction. Instead, a memorandum will be added to the Soldier's file
showing the correction. With regard to correcting errors involving payment
of a Selective Reenlistment Incentive Bonus, a copy of the approved
correction with appropriate enclosures will be forwarded to the Commander,
USA HRC, 9700 Page Boulevard, St Louis, Missouri  63132-5200.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his reenlistment contract
should be antedated to show that he reenlisted prior to completing 16 years
of military service because, while he was deployed and assigned to a remote
location in Iraq, he had no retention or administrative support personnel
and was not made aware of his eligibility to reenlist and receive a tax-
free reenlistment bonus.  He also contends, in effect, that upon learning
of the change in the law affecting his reenlistment bonus eligibility, he
took immediate action to reenlist.

2.  The evidence of records shows that the applicant attained 16 years
total military service during his deployment in Iraq and had accumulated in
excess of 16 years total military service at the time of his redeployment
to CONUS.  The evidence of records also shows that the applicant had a very
small window of opportunity when he was eligible to reenlist for a
reenlistment bonus while deployed in Iraq; specifically, from 20 October
2004 through 28 December 2004. The evidence of records further shows that
the applicant was remotely deployed in Iraq, was not notified of the change
in the law concerning his reenlistment period of eligibility during his
deployment, nor was he afforded the opportunity to reenlist while deployed
in Iraq prior to completing 16 years total military service.  Consequently,
the applicant was reenlisted in the USAR upon his return to CONUS,
subsequent to the period of his eligibility for a tax-free, reenlistment
bonus.

3.  The evidence of records shows that, upon redeploying to CONUS and
learning of the change in the law that allowed him to reenlist for a
reenlistment bonus while deployed in Iraq, the applicant took immediate
action to request reenlistment.  The evidence of records also shows that
the applicant's Assistant Division Commander for Support, Company
Commander, Command Sergeant Major, and Retention Noncommissioned Officer
all attest to the fact that the applicant was eligible to reenlist, but was
not afforded the opportunity to reenlist in Iraq during the period when he
was eligible for a reenlistment bonus.  Consequently, through no fault of
his own, the applicant was precluded from reenlisting during the period
when he was eligible for a tax-free reenlistment bonus.

4.  Therefore, in view of the facts of this case and as a matter of equity,
it is appropriate that the applicant's records be corrected to show that he
reenlisted in the USAR on 28 December 2004, for an indefinite period, in
MOS 21B4X, and is entitled to a $15,000.00 tax-free reenlistment bonus.


BOARD VOTE:

__M.J.N.T  ___CAD_  __EEM __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 filing in the applicant's Official Military Personnel File
(OMPF) a copy of the documentation approving the correction along with
appropriate enclosures, showing that the applicant reenlisted in the USAR
on 28 December 2004, for an indefinite period, in MOS 21B4X, and was
entitled to a $15,000.00 tax-free reenlistment bonus.

2.  That the Defense Finance and Accounting Service (DFAS) provide the
applicant payment of his tax-free Selective Reenlistment Incentive Program
reenlistment bonus in the amount of $15,000.00.




                                  ____Maria J.N.Troup____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003865                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |112.1100.0000                           |
|2.                      |128.0500.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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