IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080007549 


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 her incentive option for reenlisting for a $15,000 bonus be honored.

2.  The applicant states that she reenlisted in theater in good faith to take advantage of the $15,000 reenlistment bonus offer.  Although she met all of the criteria at the time of her reenlistment, subsequent changes have prevented her bonus from being processed.  

3.  The applicant provides a memorandum of support, dated 10 March 2008, from the Montana National Guard; a memorandum, dated 6 February 2008,   from the National Guard Bureau (NGB), to the Montana Army National Guard (MTARNG); a memorandum, undated, from the Office of the Deputy Chief of Staff (ODSCPER), G-1, to NGB; a memorandum, dated 19 September 2007, from NGB to the Montana National Guard; a memorandum, dated 14 May 2007, from her Attorney Advisor to NGB; a memorandum, dated 1 January 2007, from NGB to each State; a letter, dated 9 February 2007, from the Montana National Guard to the applicant; two letters, dated 29 November 2006, one from the Defense Finance and Accounting Service (DFAS) to Montana and one from DFAS to the applicant; and a letter, dated 3 November 2006, from a U. S. Senator to the applicant.

4.  The applicant also provides a memorandum, dated 24 January 2006, subject: Implementation Guidance for Location Selective Reenlistment Bonus (SRB) for Army National Guard (ARNG) Active Guard/Reserve (AGR) Soldiers; an extract from Title 37, U. S. Code, section 308, with interpretive notes and decisions; a letter, dated 25 October 2005, from the Assistant Secretary of Defense (Reserve Affairs) to a Member of Congress; an email, dated 5 May 2005; her DD Form  214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 2005 and her release from active duty orders; her 2 February 2005 enlistment contract; an NGB  memorandum, dated 14 January 2005, subject:   FY05 (fiscal year 2005) Selected Reserve Incentive Program (SRIP) Policy Guidance for 14 December 2004 – 30 September 2005 (Policy Number 05-02) CHANGE 1 and the basic FY05 SRIP Policy Guidance, dated 14 December 2004; her active duty orders, dated 1 September 2004, with an amendment, dated 4 December 2005; and her deployment orders, dated 23 December 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, in her 14 May 2007 memorandum to NGB, requested that the policy in effect at the time of the applicant’s reenlistment be enforced and that the applicant receive the reenlistment bonus to which she is entitled.

2.  Counsel, in her 14 May 2007 memorandum, stated that the 14 December 2004, original FY05 SRIP Policy Guidance advised that it did not apply to AGRs. It also stated that the Soldier must have “not more than 16 years at Expiration Term of Service (ETS).”  Change 1 to the FY05 SRIP, dated 14 January 2005, allowed AGRs to be eligible for a bonus if they serve 6 months or more of the reenlistment contract prior to being re-affiliated with their full-time position.  There was no change to the number-of-years eligibility requirement.  

3.  Counsel, in her 14 May 2007 memorandum, stated the applicant reenlisted  on 2 February 2005 for 6 years.  At that time she had 15 years, 10 months, and 29 days of military service.  She did not re-deploy until 30 November 2005,         9 months after she executed her reenlistment contract, and she expected to receive a $15,000 bonus, payable on the date her reenlistment took effect.  On   5 May 2005, NGB advised personnel to “continue to execute contracts for mobilized AGRs and Mil Techs….”  On or about 24 June 2005, Implementation Guidance for Location SRB for ARNG AGR Soldiers was released, and the memorandum capped the years of service eligibility at 14 years of service prior to the reenlistment date.  The memorandum did not have a retroactive effective date.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 7 March 1989 for 6 years.  She entered active duty in an AGR status on 7 May 1990.  

2.  On 19 January 1993, the applicant extended her enlistment for a period of      4 years and 2 months, making her new expiration of term of service (ETS) 6 May 1999.

3.  On 4 January 1999, the applicant extended her enlistment for a further period of 6 years, making her new ETS 6 May 2005.

4.  The applicant was promoted to Sergeant First Class, E-7 in military occupational specialty 75H (Personnel Service Specialist) on 24 May 2002.

5.  On 6 September 2004, the applicant was mobilized and entered active duty.  She arrived in Iraq on 1 January 2005.

6.  On 2 February 2005, the applicant reenlisted for 6 years.  On that date, she had completed 15 years, 10 months, and 29 days of service.  She initialed paragraph 7 of section II of Annex B (Reenlistment/Extension Bonus Addendum Army National Guard of the United States) to her reenlistment contract, indicating that she had less than 16 years of total military service at current ETS and was reenlisting or extending for 6 years within 90 days prior to, or 24 hours after, completion of her current ETS.  Paragraph 8 of section II indicated that she understood that if she was being mobilized and was contracting for the reenlistment/extension bonus, she must initiate and sign this addendum while in a Combat Zone in order to receive the tax-free option.  

7.  The applicant initialed in paragraph 1c of section III of Annex B to her reenlistment contract indicating that for a 6-year reenlistment/extension she would receive a total bonus of $15,000.  Her Lump Sum payment of $15,000 would be processed on the date that her reenlistment or extension contract took effect (1 day after her current ETS).

8.  On 6 May 2005, the applicant’s current ETS, she had completed 16 years and 2 months of military service.  

9.  On 20 November 2005, the applicant departed Iraq.

10.  On 14 May 2007, counsel for the applicant requested that the applicant be paid the reenlistment bonus per counsel’s statements above.

11.  On 19 September 2007, NGB responded by noting that Title 37, U. S. Code, chapter 5, section 308, was changed by Public Law 108-374 effective 18 October 2004.  The change authorized the “Secretary Concerned” to allow the reenlistment bonus for Soldiers who have completed not more than 16 years of “active duty” (the law actually stated “total military service”).  However, it did not require the Secretary to do so, and the Department of Defense chose not to increase the number of years from 14 to 16 as authorized under the law.  

12.  At the time, Title 37, U. S. Code, section 308b provided that the Secretary concerned could pay a reenlistment bonus for a member of the Selected Reserve who completed less than 16 years of total military service and reenlisted or voluntarily extended his enlistment for a period of 3 years or for a period of           6 years in a designated military skill, or in a designated unit, as determined by the Secretary concerned, in the Selected Reserve of the Ready Reserve of an armed force.  Previously, this section had provided that the Secretary concerned could pay a reenlistment bonus for a member of the Selected Reserve who completed less than 14 years of total military service.  This section of the law is changed periodically to provide for the retention needs of the Services.  

13.  The applicant provided an extract from Title 37, U. S. Code, section 308, with interpretive notes and decisions.  Paragraph 2 of section 1, “Generally,” of the Interpretative Notes and Decisions states, 

“United States Supreme Court’s opinion in…concerning military   re-enlistment bonuses does not alter fundamental rules of law that (1) service member’s entitlement to military pay is governed by statute rather than ordinary contract principles, and (2) in absence of specific statutory authority, government is not liable for negligent or erroneous acts of its agents; hence amount of any reenlistment bonus payable to service member depends on applicable statutes and regulations, and in no event can bonus amount be established through private negotiation or contract between member and his recruiter.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant, and her counsel, contended that she reenlisted in theater in good faith to take advantage of the $15,000 reenlistment bonus offer and that she met all of the criteria at the time of her reenlistment for the bonus.  

2.  The applicant provided an extract from Title 37, U. S. Code, section 308, with interpretive notes and decisions, which stated a service member’s entitlement    to military pay is governed by statute, and in the absence of specific statutory authority the government is not liable for negligent or erroneous acts of its agents.  Hence, the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can a bonus amount be established through private negotiation or contract between the member and her recruiter.
3.  Those interpretative notes and decisions clearly state that the law governed whether or not the applicant could be paid the reenlistment bonus, and the law could not be overridden by what was written in her reenlistment contract or what was outlined in SRIP Policy Guidance.  

4.  Just as importantly, the applicant’s enlistment contract told her she was not eligible for the reenlistment bonus.

5.  On 4 January 1999, the applicant extended her enlistment for a further period of 6 years, making her new ETS 6 May 2005.

6.  On 2 February 2005, when the applicant reenlisted for 6 years, she had completed 15 years, 10 months, and 29 days of service.  However, by initialing paragraph 7 of section II of Annex B to her reenlistment contract she indicated that she had less than 16 years of total military service at her current ETS and was reenlisting or extending for 6 years within 90 days prior to, or 24 hours after, completion of her current ETS.  

7.  At the applicant’s then-current ETS of 6 May 2005, she would have completed 16 years and 2 months of total military service.  In addition, she reenlisted         94 days prior to her then-current ETS.  

8.  While it appears the applicant’s retention noncommissioned officer did not compute her service as of 6 May 2005, the applicant was a Sergeant First Class Personnel Service Specialist.  She should have been able to compute her service as of 6 May 2005 and, upon discovering that she would have had over     16 years of total military service by 6 May 2005, she could have made a decision not to reenlist.  

9.  Even in the absence of the statutory provisions, based upon the wording of the applicant’s reenlistment contract there is insufficient evidence that would warrant granting relief in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.



      ______xxxx_____________
      	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)                                         AR20080007549



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007549



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1