IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010449 


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, as an exception to policy, that his debt as a result of recoupment of his United States Army Reserve (USAR) enlistment bonus be cancelled.

2.  The applicant states, in effect, that having to repay the debt would result in a financial hardship.

3.  The applicant provides in support of his application copies of electronic mail from Army officials regarding his enlistment bonus; a copy of a memorandum from his battalion commander, addressed through the Commander, Military Intelligence Readiness Command, Fort Belvoir, VA to the Commander, USAR Command, Fort McPherson, GA dated 15 April 2008, requesting an exception to policy for recoupment of his reenlistment bonus; a copy of his USAR Enlistment Contract and Addendum; a copy of his Selected Reserve Incentive Program – USAR Reenlistment Bonus Addendum; a copy of his Student Loan Repayment Program Addendum; a copy of his Reenlistment Eligibility Worksheet; a copy of his Enlisted Qualification Record; a copy of his Reenlistment Bonus Control Worksheet; and a copy of an indebtedness notice from the Defense Finance and Accounting Services, dated 22 February 2008, showing that as of that date he owed a balance of $15,583.75.




CONSIDERATION OF EVIDENCE:

1.  On 14 March 2000, the applicant enlisted in the USAR in Tampa, Florida, for 8 years, in the pay grade of E-1.  He successfully completed his training as a combat engineer.

2.  After completing approximately 7 years, 1 month, and 16 days of total service in the USAR, the applicant reenlisted in the USAR for 6 years on 30 April 2007.

3.  Annex A of the applicant's Enlistment Contract shows that he reenlisted for 6 years, for a bonus amount of $15,000 and that the lump sum payment of the total bonus amount would be received upon providing proof of contract and qualification at the time of the request for payment.  Annex A also shows that if he accepted a permanent military technician or Active Guard Reserve (AGR) position where a membership in the Selected Reserve is a condition of employment, his bonus would be recouped if he had not satisfactorily served 6 months or more in the Selected Reserve service under his agreement before accepting a permanent military technician or AGR position.

4.  On 18 May 2006, the applicant was notified that his AGR online application had been screened for eligibility and approved for entry into the AGR program.  He was informed that his name had been placed on the consideration list and would remain on the list for 1 year.

5.  On 9 July 2007, Order R-07-785147 was published by the United States Army Human Resources Command, ordering the applicant to active duty in AGR status for 3 years, effective 23 July 2007.

6.  On 15 April 2008, the applicant's battalion commander forwarded a memorandum to the Commander, USAR Command, Fort McPherson, Georgia, requesting an exception to policy for the recoupment of the applicant's reenlistment bonus.  In his memorandum, the battalion commander stated that on 23 July 2007, the applicant reported for duty, accepting an AGR position with the 345th Military Intelligence Battalion.  He stated that prior to the applicant’s acceptance, the applicant contacted his retention noncommissioned officer and informed him that he was being offered an AGR position and wanted to know if accepting the position would affect his reenlistment bonus.  The applicant was informed that since he was not changing his military occupational specialty, and because he was remaining a Soldier in the Army Reserve, it would not affect his reenlistment bonus.  The battalion commander went on to state that the applicant asked his leadership about this issue and he was informed that there should not be any problems with him accepting an AGR position.  The battalion commander 

states that the applicant was encouraged to accept the position to better his career and family life and that he had gone through the proper channels to ensure that there would be no issues with receiving his bonus.  The battalion commander concluded by stating that the applicant was told by everyone he asked that there would be no issues with him receiving his bonus.

7.  During the processing of this case, an advisory opinion was obtained on 10 July 2008, from the Senior Army Reserve Career Counselor, Office of the Deputy chief of Staff, G-1, who recommended that relief be granted in the applicant's case.  The Senior Army Reserve Career Counselor stated that although Soldiers are responsible to fully understand the conditions of reenlistment bonuses and Career Counselor's are required to counsel Soldiers on the terms and conditions of incentives, his experience is that many Soldiers do not take the time to read reenlistment documents and many counselors do not conduct the required counseling sessions.  The Senior Army Reserve Career Counselor also stated that the AGR management division at the Human Resources Command, St. Louis, Missouri should also screen potential AGR candidates and caution them on the loss of bonus payments and potential recoupment actions if the termination and recoupment conditions are not met before ordering Soldiers to active duty.

8.  On 11 July 2008, a copy of the advisory opinion was forwarded to the applicant for concurrence and/or comments.  On 16 July 2008 the applicant indicated that he concurred with the information contained therein and did not submit any additional comments.

9.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) states that the Secretary of the Army may remit or cancel a Soldier's unpaid debts to the United States before or at the time of his or her honorable discharge if such action is in the best interest of the United States.  

DISCUSSION AND CONCLUSIONS:

1.  The issue in this case is whether or not the applicant is entitled to the reenlistment bonus that he was furnished as a condition of his reenlistment in the USAR.

2.  Annex A of the applicant’s USAR Enlistment Contract also shows that if he accepted a permanent military technician or Active Guard Reserve (AGR) position where a membership in the Selected Reserve is a condition of 



employment, his bonus would be recouped if he had not satisfactorily served 6 months or more in the Selected Reserve service under his agreement before accepting a permanent military technician or AGR position.

3.  Notwithstanding the advisory opinion from the Senior Army Reserve Career Counselor, Office of the Deputy chief of Staff, G-1, the terms of recoupment of his reenlistment bonus are clearly stated on his Enlistment Contract.  Unfortunately, the applicant served only 2 months of his USAR enlistment contract prior to accepting a position in the AGR program.  

4.  Additionally, the advisory opinion states that Soldiers are responsible to fully understand the conditions of reenlistment bonuses.  The fact that that the Senior Army Reserve Career Counselor states that it has been his experience that many Soldiers do not take the time to read reenlistment documents has been noted.  However, it does not relieve the applicant of his responsibility to do so and the statement is purely speculation at this point.  

5.  The applicant is not entitled to the reenlistment bonus that he received as he did not fulfill the terms of his Enlistment Contract.  Failure to recoup the reenlistment bonus from the applicant would create an advantage for him that is not afforded other AGR members in similar situations.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        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)                                         AR20080010449





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ABCMR Record of Proceedings (cont)                                         AR20080010449



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