RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 1 May 2007
	DOCKET NUMBER:  AR20060008852 


	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. Gerard W. Schwartz

Acting Director

Ms. Phyllis B. Mackey 

Analyst


The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter 

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 her enlistment contract be changed to reflect enlistment in the United States Army Reserve (USAR) for 1 year instead of the currently shown 6 years recorded on her DD Form 4/1 (Enlistment / Reenlistment Document, Armed Forces of the United States) dated, 29 September 2005. 

2.  The applicant states, in effect, that she reenlisted in the USAR for 6 years, with the understanding that she would receive a Prior Service Enlistment Bonus (PSEB).  She states, in effect, that the information given to her concerning her entitlement to the PSEB was incorrect.

3.  In support of her application, the applicant submits a personal statement; a letter of complaint; a response from the G-1, US Army Reserve, to a Member of Congress; a copy of her DD Form 4/1 and DD Form 4/2, dated 29 September 2005; a copy of DA 3540 (Certificate and Acknowledgement, United States Army Reserve, Service Requirements and Methods of Fulfillment); and a copy of DA 5261-R (Selected Reserve Incentive Program-USAR Prior Service Enlistment Bonus Addendum).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the USAR (for a period of 8 years), in pay grade E-1, with a cash bonus entitlement of $3000.00, on 9 May 1996.

2.   The applicant was ordered to Active Duty Training (ADT) on 27 May 1996 for 15 weeks.  The applicant completed Basic Training and Advance Individual Training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT the applicant was awarded the military occupational specialty (MOS) of 88M (Motor Vehicle Operator). She was released from ADT and returned to her previous unit of assignment, a TPU (Training Program Unit), on 17 December 1996.

3.  The applicant was assigned to the Army Personnel Command (AR-PERSCOM), St Louis, Missouri, for annual training, on 27 March 1996.  She was released from the USAR Control Group and reassigned back to her unit in Dubois, Pennsylvania, on 22 September 1998, after completing her training.

4.  The applicant was released from her TPU, on 20 December 1999, with an effective date of 15 May 1999, due to unsatisfactory participation.  She was reassigned to the USAR Control Group (Annual Training), in St. Louis, Missouri.  

5.  On 14 December 2002, the applicant was voluntarily released from the USAR Control Group and assigned to the 403rd, Adjutant General Detachment, Replacement, in Punxsutawney, Pennsylvania.

6.  The applicant was ordered to active duty on 21 January 2003 and was honorably released from active duty due to completion of required active service on 11 May 2004.  The applicant had 1 year, 3 months, and 21 days of active military service, and 6 years, 4 months, and 28 days of total prior inactive service, with no lost time, at the time she was released from active duty. 

7.  The applicant reenlisted in the United States Army Reserve for a period of
6 years, on 29 September 2005.  She reenlisted under the “Prior Service” program, with an authorized “PSEB” of $15,000.00, “Prior Service MGIB Kicker,” of $100.00, and “Student Loan Repayment Program ($10,000.00) Prior Service.”

8.  In the processing of this case, an advisory opinion was requested of the office of the Incentives and Budget Branch, Enlisted Accessions Division, G-1.  A G-1 representative expressed the opinion that based on reviewing the applicant’s request, that she was erroneously enlisted for the PSEB of $15,000.00.  On 15 May 1999, the Soldier was placed in the US Army Reserve Control Group for unsatisfactory participation.  As a result, she was not eligible for the PSEB and her contract of 29 September 2005 was therefore erroneous.  The Soldier received a determination from the USAR, dated 5 May 2006, stating the circumstances causing her ineligibility for the PSEB.  The Soldier now requests that her current contract be corrected to change her term of service from 6 years to 1 year to preclude a break in service. 

9.  The G-1 official in his advisory opinion, recommended that the Board deny the applicant’s request to change her contract from 6 years to 1 year, since the one year period has already passed.  The determination made by the USAR on 
5 May 2006 provided the correct alternative to permit the Soldier to be discharged from the current erroneous contract.  The Soldier would be eligible to then initiate a new contract immediately after the discharge date and preclude a break in service. 

10.  In preparation of this case the ABCMR analyst contacted the applicant via telephone on 26 March 2007 to clarify the applicant’s request for relief.  The applicant stated her desire is to terminate her current contract and immediately reenlist.  

11.  The applicant was provided a copy of the advisory opinion for her information and possible comment prior to consideration of this case.  She was provided 30 days to respond; however, the applicant did not respond within the time that was allowed for her to respond.

12.  The evidence shows the applicant signed a Statement of Understanding – The Montgomery GI Bill Selected Reserve, on 29 September 2005.  Section VII – Termination of Entitlement, of this form states that she had read the statement of understanding and understood that her entitlement to educational assistance would be terminated under any of the following conditions, to include: if she was discharged or separated from the selected Reserve, with exceptions.  The exceptions did not include separation due to a defective contract.

13.  The evidence shows the applicant signed a Statement of Understanding – The Selected Reserve Montgomery GI Bill Kicker Program (10 USC 16131) on 29 September 2005.  Section VII – Termination, of this form states that MGIB-SR would be terminated should any of a number of agreements or obligations not be fulfilled.  The exceptions did not include separation due to a defective contract.

14.  The evidence shows the applicant signed a Student Loan Repayment Program Addendum, on 29 September 2005.  Section VII – Termination, of this form states that she understood that the terms of the addendum would remain in force as long as she continued to participate satisfactorily under a contractual agreement as a member of the Selected Reserve.  The applicant further understood that the terms of the agreement and her entitlement to loan repayment under the SLRP would be terminated should any of thirteen specific conditions occur.  The exceptions did not include separation due to a defective contract; however, if she were separated from the Selected Reserve, she would no longer be a participant in the Selected Reserve and no entitlement to continued benefits would exist.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that her enlistment contract be changed to reflect an enlistment term of 1 year, or her current service, instead of 6 years. 

2.  The applicant states, in effect, that she reenlisted in the United States Army Reserve (USAR) for 6 years with the understanding she would receive a PSEB of $15,000.00, a prior service MGIB kicker of $100.00, and the Student Loan Repayment Program ($10,000.00) Prior Service.  She states, in effect, the information given her concerning her entitlement to the bonus was incorrect.

3.  Notwithstanding the advisory opinion given by the Incentives and Budget Branch, Enlisted Accessions Division, G-1, that the Board deny the applicant’s request to change her contract from 6 years to 1 year, since the one year period has already passed, the applicant did not receive what she was promised in return for her enlistment for a 6 year enlistment and therefore, the enlistment contract was defective.

4.  Army recruiting personnel have a responsibility to the Army to recruit only the best to fill its ranks and to ensure that they are fully qualified to enlist or reenlist.  They are even more so responsible for ensuring that prospects for enlistment or reenlistment are fully qualified to receive those options that are being used as an incentive for their service.

5.  It appears, based on the evidence, that, in the interest of justice and equity, the applicant has the following options to make up for the defective contract into which she entered:  continuing her service for the full duration of her enlistment contract, with eligibility to continue to receive those incentives she contracted to receive, with exception of the PSEB bonus; to be immediately released from her defective contract and allowed to reenlist, if she desires to continue her Army service, provided she is otherwise qualified, for any option(s) she qualifies for,  on receipt of this Record of Proceedings; or she may opt to terminate her service altogether, but with her knowledge that her separation will have a direct impact on her continued entitlement to some of the above benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___PMS_  __EM___  ___DKH _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.   The Board determined that the evidence presented is sufficient to warrant a recommendation for partial relief by immediately releasing the applicant from her defective contract and allowing her to reenlist, if she desires to continue her Army service, provided she is otherwise qualified, and for any option(s) she qualifies for on receipt of this Record of Proceedings; and

b.  The Board encourages the applicant to speak with a recruiter or enlistment counselor concerning reenlistment options available to her, including her being eligible for any bonuses or special pay prior to terminating her current enlistment contract.  The applicant is encouraged to provide a copy of this Record of Proceedings to the recruiter and/or counselor when and if she decides to exercise the option afforded by this Board.

2.  As a result, the Board recommends denial of so much of the application that pertains to the applicant’s request to change the period of her enlistment from 6 years to 1 year.  




___    Paul M. Smith_________
          CHAIRPERSON



INDEX

CASE ID
AR20060008852
SUFFIX

RECON

DATE BOARDED
20070501
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY

ISSUES         1.
128.0500  
2.

3.

4.

5.

6.