IN THE CASE OF:	  

	BOARD DATE:	      25 September 2008

	DOCKET NUMBER:  AR20080005744 


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, payment of a Prior Service Enlistment Bonus (PSEB) guaranteed in his 28 April 2007 Enlistment Contract (DD Form 4).

2.  The applicant states, in effect, that during the processing for his 28 April 2007 enlistment, it was his intent to enlist for 1 year under the "Try Out" contract; however, he was informed by recruiting personnel at the Military Entrance Processing Station (MEPS) that he was eligible to receive a $15,000 PSEB for a six-year enlistment.  As a result, he agreed to enlist for six years based solely on this incentive, which was included in his enlistment contract.  The applicant states that upon completion of his military occupational specialty (MOS) training, the appropriate paperwork was submitted for the initial bonus payment; however, he was informed he was not authorized the bonus because his prior service exceeded the 16 year maximum authorized for a PSEB.  He further states that had he enlisted for one year as originally planned, he would have been eligible to reenlist and receive a bonus because a reenlistment bonus could be paid to members who had less than 20 years of service.  He claims he is now locked into a six year contractual obligation without any chance of receiving future bonuses given he will have more than 23 years of service at the completion of the enlistment term.  


3.  The applicant further states that the recruiting personnel at the MEPS made an unintentional error in their interpretation of the regulations and authorized him a bonus as indicated on his contract, which reflects that he completed less than 16 years of prior service at the time of his enlistment.  He claims these recruiting personnel are the experts in their field and he totally relied on and trusted that the information that they provided him was accurate.  He claims it is not reasonable to penalize him for the mistake of others and indicates that in a civilian court any such contract would be legally binding.  The applicant finally indicates it would be fair to honor his contract and pay him the bonus in a timely manner as authorized therein.

4.  The applicant provides the following documents in support of his application: 
a Self-Authored Statement and Enlistment/Reenlistment Document (DD Form 4/1) with associated documents.   

CONSIDERATION OF EVIDENCE:

1.  A Chronological Statement of Retirement Points (APRC Form 249-E) shows the applicant initially enlisted in the Army National Guard (ARNG) and entered military service, in an enlisted status, on 6 March 1979.  He continuously served in an enlisted status until 23 May 1985, at which time he was discharged to accept a commission.  

2.  The applicant's ARPC Form 249-E also confirms he served both in the ARNG and the United States Army Reserve (USAR) as a commissioned officer from 
24 May 1985 to 9 September 1996, and that he had a break in service from 
10 September 1996 to 27 April 2007.

3.  On 28 April 2007, the applicant reenlisted in the USAR for a period of 6 years and entered his current enlistment. The Record of Processing-Armed Forces of The United States (DD Form 1966/3) completed during his enlistment processing includes an entry in Section IV (Certification) Block 32a (Specific Option/Program Enlisted For), which shows he enlisted for a PSEB of $15,000 in MOS 15K.  

4.  The Selective Incentive Program–USAR PSEB Addendum (DA Form 5261-5) Section V (Entitlement) completed during his enlistment processing contains the applicant's statement “I have less than 16 years of military service and I am enlisting for 6 years for a bonus of $15000," and the applicant and his counselor authenticated this document with their signatures in Section IX (Statement of Understanding) and Section X (Certification by Service Representative), respectively.

5.  On 20 February 2008, the Deputy Chief of Staff, G1, United States Army Reserve Command (USARC), informed the applicant that the governing law prevented Soldiers with more than 16 years of service from receiving a PSEB and that as a result, the applicant was not authorized this incentive.  He provided the applicant the following three options from which to elect:  (1) remain in his unit as a drilling reservist; (2) request discharge according to regulatory; or (3) apply to this Board for relief.

6.  During the processing of this case, an advisory opinion was obtained from the Chief, Incentives Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, who recommended approval of the applicant’s request.  This official cited the applicable law governing the service requirement for authorizing a PSEB; however, he recommended that the applicant’s contract be honored in accordance with Army Regulation 601-210, paragraph 8-b (2) and 8-6b.  The applicant concurred with this opinion on 23 May 2008.

7.  The applicant provides Reserve Component Transition Branch Message Number 07-25.  This message provides, in pertinent part, that a $15,000 PSEB is only authorized to those Soldiers who enlist for a minimum period of 6 years and who have less than 16 years of total service.  It also provides that troop program unit members may reenlist for a 6 year period and receive a $15,000 bonus with not more than 20 years of total service.

8.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNG) and USAR incentive programs.  The eligibility criteria for a prior-service selected Reserve reenlistment bonus contained in this regulation stipulates that the member can not have been previously paid a bonus for enlistment, reenlistment, or extension of an enlisted in any Reserve Component of the Armed Forces.

9.  Title 37, United States Code 308i, Section 308i (1)(2)A provides, in pertinent part, that a prior service enlistment bonus may only be paid to a person who has not more than 16 years of total military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have receive a $15,000 bonus in conjunction with his 28 April 2008 reenlistment was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By law, only those members with 16 years or less of total military service are authorized a PSEB.  Notwithstanding the G-1 recommendation to honor the applicant’s enlistment contract by paying him the $15,000 PSEB; the law prohibits payment of this incentive if a member has in excess of 16 years of prior service at the time of enlistment.  As a result, it would be contrary to the governing law to grant the requested relief.  

3.  Although there is a moral obligation to honor enlistment contracts properly entered into, there is also an obligation on the member's part to provide valid information upon which to base incentive authorizations at the time of enlistment. In this case, the applicant indicated that he had less than 16 years of prior service in the DA Form 5261-5 he completed during his enlistment processing, which whether or not intended, was a false statement and supported the authorization for the PSEB.  The record confirms the applicant served continuously, in both an enlisted and commissioned officer status, from 6 March 1979 through 9 September 1996 (17 years, 6 months, 4 days), which exceeded the 16 year maximum allowed by law to receive a PSEB.  As a result, even if improperly counseled, the applicant was culpable in erroneous enlistment.  The applicant is informed that as indicated in the original G-1 decision on his case, his option to request discharge due to an erroneous enlistment remains valid. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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)                                         AR20080005744



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005744


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1