IN THE CASE OF:	  

	BOARD DATE:	  5 August 2008

	DOCKET NUMBER:  AR20080006556 


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 recoupment of her Enlisted Affiliation Bonus (EAB) be waived and she be allowed to keep the money.

2.  The applicant states:

	a.  she enlisted and served in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) from 18 July to 24 November 2002.  On 25 November 2002, she was released from the DEP and enlisted in the Regular Army for a period of 4 years.  She was honorably released from active duty (REFRAD) at Fort Stewart, Georgia, on 24 November 2006.  She had a military service obligation (MSO) through 17 July 2010;

	b.  at the time of her REFRAD, she contacted a recruiter regarding options available to her.  The recruiter told her if she enlisted for 36 months in the Selected Reserves (SELRES) under the MSO Reduction Program, she could receive a $10,000 EAB and reduce her MSO by 22 months, thereby only serving a total of 18 months.  She enlisted in the USAR for service in a Troop Program Unit (TPU) on 20 October 2006 and subsequently received her first installment of the EAB ($5,000) in February 2007;

	c.  she served in a SELRES TPU from 25 November 2006 through 14 May 2007.  On 15 May 2007, she executed a contract to enlist in the District of Columbia Army National Guard (DCARNG) under the "Try One in the Guard" 

program.  She was sworn in on 17 May 2007.  Prior to her joining the DCARNG, she and her recruiter went over the contract and she was assured that she would keep her MSO Reduction, but she was not given clear guidance on the issue of her bonus; and

	d.  when she separated from the DCARNG in May 2008, she was told she would have her MSO reduced, but because of the 2006 National Defense Authorization Act (NDAA), she would not receive the second half of her EAB and would have to pay back the first installment of the bonus she already received or reenter the Army to complete her MSO.

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States), dated 15 May 2007 (DCARNG Enlistment);

	b.  DD Form 3540-R (Certificate of Acknowledgement of U.S. Army Reserve Service Requirements and Method of Fulfillment), dated 20 October 2006;

	c.  Undated Written Agreement - Enlisted Affiliation Bonus;

	d.  DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 20 October 2006;

	e.  Memorandum, dated 29 April 2007, Request Approval of Conditional Release to the ARNG for [the applicant]; and

	f.  DA Form 5435-R (Statement of Understanding -The Selected Reserve Montgomery GI Bill), dated 20 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that she enlisted in the USAR under the DEP on 18 July 2002; establishing her MSO as 17 July 2010.  She subsequently enlisted in the Regular Army for a period of 4 years on 25 November 2002.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).  The highest rank/grade she attained during this period of military service was specialist (SPC)/E-4.  She was honorably REFRAD on 24 November 2006 upon expiration of her term of service (ETS); her remaining MSO was 43 months.
2.  On 20 October 2006 prior to her ETS, the applicant executed an enlistment in the USAR wherein she opted for the MSO Reduction Program and a $10,000 EAB in return for a 3-year commitment.  Her record is void of the DD Form 4; however, it does contain a DA Form 3540-R (Certificate and Acknowledgement of U.S. Army Reserve Service Requirements and Methods of Fulfillment), dated 20 October 2006.  This document provides:

	a.  in Section IV (Service Obligation), Item 6 (Transfer or Reassignment to a Troop Program Unit (TPU) or an Individual Mobilization Augmentee (IMA) of the USAR), "I am a Reserve of the Army and by this transfer or reassignment, I must immediately begin participating with my assigned troop program unit or in my IMA duty position, as appropriate, and continue to participate satisfactorily for the remaining period of my statutory or contractual obligation, whichever is longer"; and 

	b.  in Section IX (Additions or Changes to this Certificate), the applicant accepted a written agreement pertaining to an EAB.

3.  The "Written Agreement - Enlisted Affiliation Bonus Addendum," authenticated on page 4 by the applicant's signature, states:

	a.  in Section V (Entitlement), "I am eligible for an Affiliation Bonus by affiliating from active duty (AD), Individual Ready Reserve (IRR) status, or as a prior service applicant into a USAR Selected Reserve for 3 years in the amount of $10,000"; and

	b.  in Section VII (Continuation of Benefits), "Upon transfer between the USAR and the ARNG,.... [I]f, as a member of the USAR entitled to bonus payment under this program, I transfer to (enlist in) the ARNG (1) Because my USAR TPU has been reorganized, relocated, redesignated, inactivated, or converted, and provided I remain otherwise eligible, I will not terminate my entitlement and will retain my bonus.  (2) For reasons other than (1) above, I terminate my entitlements to bonus payments under this program unless the Director, Army National Guard authorizes continued entitlement or enlistment in the ARNG."

4.  The applicant's records show that she was assigned in the USAR to the 312th Psychological Operations Company, Upper Marlboro, Maryland, a subordinate TPU of the U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, North Carolina.


5.  On 6 February 2007, the applicant requested a conditional release from the USAR for the purpose of entering another component of military service - the DCARNG.  In her request, the applicant stated she understood the 8-year MSO which she incurred when she joined the Regular Army had been reduced based upon her agreement to serve a Selected Reserve (SELRES) assignment and if, for any reason, she did not complete it, her MSO would revert to the original
8-year statutory obligation.  She acknowledged her original MSO date was
17 July 2010 for a non-adjusted remaining obligation of 43 months and that her reduced MSO was 21 months, giving her an adjusted date of 17 May 2008 [sic] and a SELRES obligation of 22 months.

6.  On an unknown date, the Commanding General, Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, North Carolina, approved the applicant's request for conditional release from the USAR to the ARNG.

7.  On 15 May 2007, the applicant executed a one-year enlistment in the DCARNG.  Section VI (Remarks) of her DD Form 4, dated 15 May 2007, states, "I understand that a waiver of exception to policy regarding Continuation of Benefits per Affiliation bonus will be submitted to Director, Army National Guard.  This exception to policy waiver does not guarantee Approval of Continuation of Bonus benefit."

8.  In an advisory opinion obtained in the processing of this case on 6 May 2008 (erroneously shown as 8 June 2006), the Senior Army Reserve Career Counselor, Office of the Deputy Chief of Staff, G-1, The Pentagon, Washington, D.C. stated that the applicant's case is a matter of counselor error.  The applicant's counselor offered her two incentives that conflicted with each other solely because of the time of service requirements.  The MSO reduction program is offered to active duty component Soldiers to entice them to serve a balance of their MSO in the Reserve Components.  The Enlisted Affiliation Bonus (EAB) offers the active component Soldiers a cash bonus of $10,000 for three years and $20,000 for six years if the Soldier agrees to serve the time as a member of the Selected Reserve.  The Senior Army Reserve Career Counselor further stated that a Soldier can only take advantage of both programs provided the Soldier serves the greater of the time in service requirements.  It is evident that the applicant's counselor did not understand the implementation guidance for both incentives and how they related to each other, hence the misleading information the applicant received.  The Senior Army Reserve Career Counselor recommended the applicant be granted full relief.


9.  The applicant was furnished a copy of this advisory opinion on 15 May 2008. She concurred on the same day.

10.  Effective 1 January 2006, The Office of the Secretary of Defense (OSD) approved a 4-year test to offer an additional incentive to Regular Army Soldiers (Officers and Enlisted) departing active duty who have completed their initial Active Duty Service Obligation (ADSO) and still have a portion of their 8-year MSO remaining.  Eligible Soldiers agreeing to serve in a designated skill in a Selected Reserve (SELRES) unit will have an opportunity to reduce their MSO requirement by an amount corresponding to an equal amount of time in the SELRES, not to exceed two years (the statutory six years must be met). Additionally, the Soldier must be able the serve a minimum of 12 months in a SELRES unit. 

11.  Military Personnel (MILPER) Message 07-19, prescribed the Implementation of Authority to Reduce the Military Service Obligation (MSO) in Exchange for Selected Reserve (SELRES) Duty.  It states that:

	a.  prior to Release from Active Duty (REFRAD), officers and enlisted personnel are required to meet with a transition counselor.  The reduction of MSO will be offered to encourage SELRES service, particularly for those individuals that are predisposed to complete the remainder of their MSO in the Individual Ready Reserve (IRR); and

	b.  the remaining MSO may be reduced by an amount equal to the length of the SELRES obligation, not to exceed two years (the statutory six years must be met).  However, the Soldier must be able to serve a minimum of 12 months in a SELRES unit.

                MSO Conversion Chart in Months

MSO at Transition		SELRES Obligation		MSO Reduction

        48-72			24				         24
        46-47		      	23				         23
        44-45			22				         22
        42-43			21				         21
        40-41			20				         20
        38-39			19				         19
        36-37			18				         18
        34-35			17				         17
        32-33			16				         16

MSO at Transition		SELRES Obligation		MSO Reduction

        30-31			15				         15
        28-29			14				         14
        26-27			13				         13
        24-25			12				         12

12.  Soldiers volunteering for the MSO Reduction Program may also be eligible for an affiliation bonus.  The Enlisted Affiliation Bonus pays eligible Soldiers a cash bonus of up to $20,000.  This bonus is available to Soldiers who have completed a service term within an active component of the military or in the Active Guard Reserve (AGR) and agree to serve in the Selected Reserve.  The Enlisted Affiliation Bonus is calculated based on number of months of remaining MSO.  If a Soldier has 36 months of remaining MSO, the EAB is $10,000;
a 72-month remaining MSO is worth $20,000.  Qualification is as follows:

	a.  Officers:  To qualify for the Officer Affiliation Bonus, an officer must serve for a minimum of three years, so it may be a rare instance where the individual is able to receive both the bonus and the reduced MSO.

	b.  Enlisted:  To qualify for the Enlisted Affiliation Bonus, a Soldier must serve for a minimum of three years, so it may be a rare instance where the individual is able to receive both the bonus and the reduced MSO.

13.  National Guard Regulation 600-7 prescribes policies and procedures for the administration of the Army National Guard of the United States (ARNGUS) incentive programs.  This regulation defines a contractual obligation as a period of military service for which a Soldier enters into a voluntary contract.  It further states that, effective 1 June 1984, an 8-year military service obligation was incurred upon initial enlistment into the armed forces by reason of law.  A statutory obligation may only be terminated before 8 years by reason of “discharge” from an armed force and the Reserve of the armed force.  There are two types of termination of entitlements and eligibility for the enlistment bonus defined in this regulation: termination with recoupment and termination without recoupment.  Paragraph 2-8 of this regulation describes termination without recoupment.  Paragraph 2-9 requires entitlement and eligibility for the enlistment bonus be terminated with recoupment effective the date the Soldier is separated from the ARNG for any reason, unless due to death, injury, illness, or other impairment not the result of own misconduct.

14.  In accordance with Office of the Under secretary of Defense memorandum, dated 18 September 2007, titled: Repayment of Unearned Portions of Bonus, Special Pay, and Educational Benefits or Stipends, the Service Secretary may determine, on a case by case basis, that repayment of any unearned bonus will not be required (any unpaid portion of a pay or benefit will not be paid) if it is determined that such payment would be contrary to personnel policy or management objectives, against equity and good conscience, or contrary to the best interests of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time the applicant was released from active duty on 24 November 2006, she had completed 4 years of creditable military service.  She subsequently enlisted in the USAR for what appears to be a period of 3 years, and was promised, both the MSO Reduction Program and a $10,000 Affiliation Bonus.

2.  Her 8-year MSO upon her release from the Regular Army was 48 months.  She served 5 months and 21 days in he USAR (from 25 November 2006 to 15 May 2007), reducing her MSO to 43 months.  According to her enlistment in the DCARNG contract, she received a 21-month reduction in her MSO and her new adjusted MSO date was established as 17 May 2008.  Accordingly, she enlisted in the DCARNG for a period of 1 year on 17 May 2007 and was honorably discharged on 17 May 2008.

3.  At the time of her enlistment in the USAR, it appears that her counselor was unaware that in order the applicant to qualify for the Enlisted Affiliation Bonus, she must serve for a minimum of three years and that, it may be a rare instance where the individual is able to receive both the bonus and the reduced MSO.  This error led to the applicant enlistment under two incentives that conflicted with each other solely because of the time of service requirements.

4.  The applicant received the benefit of the MSO reduction as evidenced by her recent discharge on 17 May 2008 and a portion of the Enlisted Affiliation Bonus, as evidenced by her collection of $5,000 in February 2007.  She clearly did not qualify for further installments since the discovery of the conflicting benefits.  However, based on improper counseling and in the interest of justice, it would be appropriate to terminate entitlement and eligibility for the Enlisted Affiliation Bonus, without recoupment of any installment received, effective the date the applicant was separated from the ARNG.  Additionally, repayment of any unearned bonus will not be required if it is determined that such payment would be contrary to personnel policy or management objectives, against equity and good conscience, or contrary to the best interests of the United States.



BOARD VOTE:

__xxx___  __xxx___  __xxx___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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:

      a.  showing that the debt, if any, in the amount $5,000.00 for recoupment of the Enlisted Affiliation Bonus, already collected by the applicant, is not to be recouped; and

      b.  any funds already recouped or collected, from the applicant, and pertaining to the above debt be refunded to the individual concerned.




								XXX
      _______________________
      	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)                                         AR20080006556



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ABCMR Record of Proceedings (cont)                                         AR20080006556



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