IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20070009088 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her enlistment contract, dated 14 July 2006, be voided in its entirety and that she be given a full discharge from the United States Army Reserve (USAR).

2.  The applicant states, in effect, that on 25 December 2005 she accepted a term appointment not to exceed 2 years as a Military Technician with the USAR.  She also states, in effect, that she reenlisted on 14 July 2006 under the premise of receiving a $15,000 reenlistment bonus.  The applicant further states that Defense Finance Accounting System (DFAS) declared that she was not eligible to receive the $15,000 bonus she reenlisted for since she was employed as a military technician during the period that her reenlistment contract was executed. The applicant continues, in effect, that the reenlistment official, SFC H----s, read and explained the service requirements and methods of fulfillment set forth in the entire contact.  She states that the recruiter told her, in effect, that paragraph 4 of Section III of the DA form 5261-2-R (Reenlistment/Extension Bonus Addendum) states that the applicant was not reenlisting/extending to fill a permanent civilian position where membership in the Selected Reserve is a condition of employment (temporary civilian is excluded).  She also states in effect, that Section III (Termination) of the DA Form 5261-2-R states that the entitlement to the cash bonus will be terminated if a list of conditions occurs before the fulfillment of her reenlistment obligation, to include paragraph 5 which states if 



the applicant accepts a permanent civilian position where membership in the Selected Reserve is a condition of employment.  She finally states, in effect, that 
her recruiter told her she was fully entitled to the reenlistment bonus and that if she accepted a civilian position during this enlistment she would be subject to termination and recoupment of the bonus. 

3.  The applicant provides the following documents in support of her application:  Notification of Personnel Action (Standard Form 50-B); Enlistment/Reenlistment Document, Armed Forces of the United States (DD Form 4/1 and 4/2); Certificate and Acknowledgment of U.S. Army Reserve Service Requirements and Methods of Fulfillment ( DA Form 3540); Selective Reserve Incentive Program (SRIP) – Reenlistment/Extension Bonus Addendum ( DA Form 5261-2-R); Defense Finance and Accounting Service Military Leave and Earnings Statement (LES); and a copy of the Reserve Component Incentive Programs Procedures (Department of Defense Instruction (DODI) 1205.21), in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted into the Army Reserve on 4 December 1998 for a period of 8 years in pay grade E-2.  She held military occupational specialty (MOS) 71L (Administrative Specialist).  She is currently assigned to Headquarters, 7th ARCOM in the Republic of Germany. 

2.  Effective 25 December 2005, the applicant accepted a term position, not to exceed 24 December 2007, as a USAR Unit Administrator (GS-303) with the 87th TSD, 3rd Battalion (TS) (CS/CSS), 346th Regiment TSB (CA), Camp Shelby, Mississippi.  Item 5-5 (Nature of Action) of the applicant’s Standard Form 50-B shows that the applicant accepted a Term appointment not to exceed
24 December 2007.  Item 24 (Tenure) shows that her tenure was indefinite.  As a condition of employment the applicant was required to maintain membership in the USAR unit in which she was employed, meet both military and civilian position skill compatibility, and satisfy the military membership requirements of Army Regulation 140-315. 

3.  The applicant's DD Form 4/1, dated 14 July 2006, shows that she reenlisted in the USAR for a period of 6 years on 14 July 2006. 

4.  Item 4 of Section III (Acknowledgement) of the DA Form 5261-2-R submitted by the applicant states that the Soldier is not reenlisting/extending to fill a permanent civilian position where membership in the Selective Reserve is a 

condition of employment (temporary civilian assignment is excluded).  Item 5 of Section VII (Termination) states that the Soldier’s entitlement to the reenlistment/
extension cash bonus will be terminated should she accept a permanent civilian position where membership in the Selected Reserve is a condition of employment.  

5.  The applicant submitted a DA Form 3540, dated 14 July 2006, that shows in Section XII (Annual Orientation) Item 2 that she reenlisted for 6 years for a $15,000 bonus to be paid in one lump sum.

6.  The applicant submitted an LES, dated 23 March 2007, that shows she incurred a reenlistment bonus debt totaling $15,000 by accepting a Military Technician term position for 2 years. 

7.  In connection with the processing of this case, an advisory opinion was obtained on 5 February 2008, from the Chief, Civilian Support Branch (CSB).  This official stated that their response to the field has always been in line with DoDI 1205.21.  Military Technicians are not entitled to reenlistment bonuses, with the recent exception of the “in theater” reenlistments.  The official continues that it appears that neither the forms involved, nor Army Regulation 135-7, are consist with the DoDI.  Whereas DODI expressly identifies temporary assignments of less than 6 months, Army makes the distinction only between temporary and permanent employment.  The official concludes that while DoDI policy is paramount to Army, the Army has the responsibility of ensuring that its regulations and forms are compliant.  The advisory opinion further states that it appears they have failed to do that, and in reliance upon the Army’s representation, an injustice has occurred.  The official concludes that the CSB would like to recommend that, should the ABCMR choose to grant relief, the contract not be voided and the applicant be allowed to retain the bonus.

8.  On 5 February 2008, the applicant was provided a copy of the CSB advisory opinion in order to have the opportunity to respond.  To date, she has not responded.

9.  DODI 1205.21 states, in pertinent part, that persons accepting Military Technician positions on a temporary assignment of 6 months or less are provided relief from termination of the incentive bonuses.

10.  DODI 1205.21, enclosure 2, paragraph E2.1.23. (Temporary Assignment as a Military Technician) states, in pertinent part, that a Military Technician assignment is considered to be temporary when the assignment is for a period of less than 6 months and there is no expectation of continued employment as a Military Technician beyond that date.
11.  DODI 1205.21, enclosure 5, paragraph E5.1.1.4. (Acknowledgement) states, in pertinent part, that she is not reenlisting to qualify for a Military Technician (dual status) position where membership in a Reserve component is a condition of employment (temporary assignment as a military technician is excluded) unless the reenlistment or extension occurs while serving on active duty in Iraq, Afghanistan, or Kuwait in support of Operation Enduring Freedom or Operation Iraqi Freedom in theater.

12.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNG) and USAR incentive programs.  The SRIP incentive is offered to qualifying nonprior, prior, and in-service personnel on signing a contractual agreement for a specified term of service in the Selected Reserve and executing a DA Form 5261-2-R (SRIP Addendum) since 1 October 1982. 

13.  Army Regulation 135-7, Chapter 1-17 (Termination) states, in pertinent part, that Soldiers will have their incentive eligibility and entitlement stopped when any of the termination reasons apply as listed within the applicable chapters of this regulation.  Once being declared ineligible, termination of SRIP will not affect a Soldier’s responsibility to serve his or her current statutory or contractual service commitment.  

14.  Chapter 1-19, (Reporting Requirements) states, in pertinent part that Soldiers whose SRIP are terminated because they accepted a civilian position where Reserve member is a condition of employment are reported in accordance with this regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her enlistment contract, dated 14 July 2006, be voided in its entirety and she be given a full discharge from the USAR was fully considered and found to be without merit.

2.  The applicant's contention that she was led to believe she was eligible for a bonus before reenlisting has been noted.  However, in accordance with pertinent regulations, the applicant was not eligible for a bonus because she had accepted a Military Technician position that exceeded 6 months.  The DA Form 5261-2-R that the applicant signed also listed the eligibility requirements.  By signing the addendum the applicant acknowledged that she read it in its entirety and that the reenlistment NCO explained the eligibility requirements to her which state that if she did not meet all the requirements for a bonus, she would not be eligible.  

3.  Evidence of record shows that the applicant was appointed to a term Military Technician position on 25 December 2005 for a period NTE 2 years.  Evidence of record also shows that the applicant reenlisted for a $15, 000.00 lump sum SRIP bonus in the USAR on 14 July 2006 for reenlisting for 6 years.  

4.  Notwithstanding the opinion provided by the Chief, G-1, Civilian Support Branch, DoDI 1205.21 clearly indicates that the applicant was not eligible for a SRIP bonus because she held a Military Technician position that was projected to last for more than 6 months.  The DoDI 1205.21 also clearly states that in order for a Soldier to receive an SRIP bonus while assigned as a Military Technician, they must be serving on active duty in Iraq, Afghanistan, or Kuwait in support of Operation Enduring Freedom or Operation Iraqi Freedom in theater.  She was not stationed in any of the above areas during her reenlistment.

5.  Army Regulation 135 -7 clearly states that once a Soldier is declared ineligible for receipt of a enlistment bonus, termination of SRIP will not affect a Soldier’s responsibility to serve his or her current statutory or contractual service commitment.  Therefore, she is not entitled to have her reenlistment contact voided nor is she entitled to be discharged from the USAR.

6.  In view of the circumstances in this case, the applicant is not entitled to have her reenlistment contract dated 14 July 2006 voided in its entirety nor is she entitled to be fully discharged from the USAR.  She has not shown error, injustice, or inequity for the relief she now requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ___X____  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.



      __________X___________
               CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070009088



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ABCMR Record of Proceedings (cont)                                         AR20070009088



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