IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20070013954 


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, in effect, that the recoupment of his $15,000.00 Army National Guard (ARNG) reenlistment bonus be cancelled.

2.  The applicant states, in effect, that he was advised by a Judge Advocate General (JAG) officer in Iraq about fulfilling his reenlistment bonus contract obligation.  The applicant states that he completed everything he was instructed to do before leaving the ARNG and accepting a commission in the Army Reserve.  The applicant contends that he was commissioned on 21 December 2006, and his discharge orders from the ARNG were back-dated to 20 December 2006. 

3.  The applicant provides a self-authored letter in support of this application.

CONSIDERATION OF EVIDENCE:

1.  On 11 June 1997, the applicant enlisted in the Kansas Army National Guard (KSARNG) for a period of 6 years with an expiration term of service (ETS) of 10 June 2003 in military occupational specialty (MOS) 13S (Surveyor).

2.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 4 May 2003, shows that the applicant voluntarily extended his enlistment of 11 June 1997 for an additional period of 2 years.  His new ETS became 10 June 2005.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty in support of Operation Iraqi Freedom on 20 September 2004.  He was honorably released from active duty on 29 December 2005.  The applicant's DD Form 214 shows he completed 1 year, 3 months, and 10 days net active service during this period.

4.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 26 March 2005, shows the applicant voluntarily accepted, with bonus addendum, an extension of his enlistment agreement entered into on 11 June 1997, for an additional 6 years with a new ETS of 10 June 2011.

5.  The applicant's service records contain a NGB Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus Addendum Army National Guard of the United States), dated 26 March 2005, which shows his eligibility for a reenlistment bonus, the terms of his reenlistment which he acknowledged, and the total amount of his bonus being $15,000.00.  Section V (Termination) of this document contains the conditions for termination from bonus eligibility.  Paragraph 10 of Section V states that he understands that he will be terminated from bonus eligibility with recoupment if he accepts a commission as an officer or an appointment as a warrant officer after having served 1 year or more of Selected Reserve service under this agreement, recoupment is not required.  Paragraph 12 of Section V states that he understands that he will be terminated from bonus eligibility with recoupment if he separates from the ARNG for any reason (recoupment is required) unless due to death, injury, illness, or other impairment not the result of own misconduct.  Section VI (Recoupment) of the document shows the amount of the bonus he is entitled to keep will be subtracted from the total bonus paid to date.  Section VIII (Authentication) of the document shows that the applicant and the reenlisting official both affixed their signatures to the document.

6.  Annex R to DD Form 4 or DA Form 4836 shows that the applicant had been counseled on all SRIP (Selected Reserve Incentive Program) and Montgomery GI Bill Benefits for education.  It further states that he is eligible and accepts an extension bonus which is followed by his initials.

7.  On 20 December 2006, the applicant was honorably discharged under authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-35b(4) on appointment as a commissioned or warrant officer.

8.  A DA Form 71 (Oath of Office-Military Personnel) shows the applicant signed his Oath of Office as a Reserve Commissioned Officer in the rank of second lieutenant on 21 December 2006.
9.  A Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri, memorandum, dated 21 December 2006, shows that the applicant was appointed as a Reserve Commissioned Officer of the Army effective 21 December 2006, the date of his acceptance, and that this appointment was for an indefinite term.

10.  Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri, AHRC-PRO-Orders B-05-803397, dated 15 May 2008, show that the applicant was promoted to first lieutenant on 1 May 2008.

11.  On 23 January 2007, the applicant was notified by the KSARNG Land Component, Joint Forces Headquarters Kansas, Topeka, Kansas, that he was terminated from participation in the incentive retention bonus program effective on 20 December 2006.  The notification further shows the reason for termination was due to the applicant transferring to another Reserve Component and explained that he owed approximately $11,250.00 as part of a reserve bonus recoupment.

12.  In the applicant's self-authored letter he contends that he joined the Army while in high school as a young ambitious 17 year-old.  He continues that he served over 10 years in the Army, overseas in Iraq, and "planned" to retire.  He adds that he committed himself to the US Army, is in great standing, reached the rank of staff sergeant/pay grade E-6 within five years of service, and became a good leader.  He contends that when the Army takes care of him and his family, he is more than willing to continue serving his country.  He further contends that in May 2005 he wanted to continue his Army career as an officer.  He adds that he reenlisted for an additional 6 years with plans to receive a direct commission upon his return to the United States.  He further adds that he met with an active duty JAG officer while in Iraq.  He argues that he was informed that all he needed to do to keep his contract valid and not have to pay back benefits was to remain in the ARNG for at least one year from signing the reenlistment contract.  He continues that after returning from Iraq he was commissioned an officer in the Army Reserve.

13.  He adds that in January 2007, he was notified that he would have to pay back $11,000.00 [$11,250.00] dollars to the ARNG for not fulfilling his reenlistment contract.  He further adds that he went through his chain of command in order to try to resolve this issue.  He argues that the Army did what they did for their benefit, but it also screws the Soldier and their family.  He continues that the Army notified him that he was in $11,250.00 debt and effectively discharged from the ARNG on 20 December 2006.  The applicant adds that he does not understand how he could have been discharged before he accepted his commission.  He argues that he has a family he supports, drives more than 4 hours to his duty station for drills each month, pays for his hotel, and has to take off work only to get paid $80.00 after the government has garnished his wages. The applicant concludes that he is completely disgusted and it gives him no reason to continue his service any longer.  He adds that he has no obligation at this point because he has met his requirements in the Army, but is also in debt due to his divorce.

14.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau, recommending disapproval of the applicant’s request.  The opinion states that the applicant had received a $15,000.00 bonus upon extending his reenlistment contract which states that bonus eligibility will be terminated if separated from the ARNG for any reason (recoupment is required), unless due to death, injury, illness or other impairment not the result of own misconduct.  The applicant was provided a copy of the advisory opinion on 30 April 2008, and failed to respond.

15.  National Guard Regulation 600-7 chapter 3 (Selected Reserve Incentive Programs), provides in pertinent part, that a Soldier’s bonus eligibility will be terminated, and recoupment initiated, if he separates from the ARNG for any reason, unless as a result of death, injury, illness, or other impairment not the result of his own misconduct.

16.  Army Regulation 135-7 (Incentive Programs), chapter 2, states that enlistment bonus entitlement will stop if the Soldier separates from enlisted status in a selected reserve unit of the ARNG or U.S. Army Reserve for any reason or accepts an appointment as a commissioned officer or warrant officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that recoupment of his $15,000.00 ARNG reenlistment bonus should be cancelled is without merit.

2.  Evidence of record shows that the applicant was paid $15,000.00 towards a 72-month reserve contract with the KSARNG.  The applicant's record also shows he satisfactorily performed and earned $2,625.00 of the monies.  His record shows that he was discharged from the ARNG, accepted a commission as an officer in the Army Reserve before the end of his contract, and was required by regulation and his contract to pay back the balance of $11,250.00.

3.  Further, the applicant signed an enlistment bonus addendum to correspond with his DD Form 4 prior to his receiving his bonus.  The addendum acknowledged he had been advised of and understood the conditions of the program which could cause suspension, or termination and recoupment.  The State Incentive Manager was also required to verify the bonus addendum to his enlistment contract as well as entries made on his DD Form 4.

4.  Additionally, the applicant was required to sign a reenlistment bonus addendum to correspond with his DD Form 4 prior to his receiving his bonus.  The addendum would acknowledge he had been advised of and understood the conditions of the program which could cause suspension, or termination and recoupment.

5.  The applicant's record shows that he clearly acknowledged that he understood the NGB policy and regulatory guidance in place at the time he signed his contract accepting an enlistment extension with bonus agreement for an additional 6 years of service in the ARNG.  The applicant also acknowledged that he understood the criteria for termination of bonus eligibility with recoupment as listed in paragraph 12 of Section V on the NGB Form 600-7-3-R-E.  Paragraph 12 of Section V states, in pertinent part, that you understand that he will be terminated from bonus eligibility with recoupment if he separates from the ARNG for any reason (recoupment is required) unless due to death, injury, illness, or other impairment not the result of own misconduct.  Additionally, Section VIII (Authentication) of this document shows that he and the reenlisting official both affixed their signatures to the document.

6.  The applicant's contention that a JAG officer he met while on active duty in Iraq informed him that all he needed to do was to remain in the ARNG for at least one year from signing the reenlistment contract was found to be without merit.  However, had the applicant accepted an ARNG commission after having served at least 1 year after signing the reenlistment contract, his argument would have had merit.  But he did not accept an ARNG commission, he was commissioned as a U.S. Army Reserve Officer.  Further, it is recognized that the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties.

7.  In order to justify correction of a military record the applicant must show, 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

___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)                                         AR20070013954



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ABCMR Record of Proceedings (cont)                                         AR20070013954



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