IN THE CASE OF:	  

		BOARD DATE:	        11 December 2008

		DOCKET NUMBER:  AR20080012804 


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 he be paid his Prior Service Enlistment Bonus (PSEB).

2.  The applicant states, in effect, that he provided his recruiter with all prior service documents, that the recruiter computed his prior service to be 13 years, 
2 months, and 28 days, and that he signed a contract for a $15,000 PSEB on 
8 December 2007.  

3.  The applicant provides his enlistment contract; U.S. Army Reserve (USAR) discharge orders, dated 25 June 1975 and 12 December 1995; a DD Form 214 (Report of Transfer or Discharge) for the period ending 31 January 1972; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 January 1987; a DD Form 214 for the period ending 30 August 1992; a DD Form 215 (Correction to DD Form 214), dated 16 December 1992; a letter, dated 19 November 2007, from the Department of the Army; emails between USAREC [U.S. Army Recruiting Command] and his recruiter; and a computation worksheet.    

CONSIDERATION OF EVIDENCE:

1.  After having over 19 years of inactive and active service, the applicant enlisted in the USAR in pay grade E-4 on 8 December 2007 for a period of          6 years.  Section V (Entitlement) on his enlistment contract states, in pertinent part, that “I have less than 16 years of military service and I am enlisting for        6 years for a bonus of $15000.”  Section IX (Statement of Understanding) on his enlistment contract states “I have read and understand each of the statements above and have had my questions satisfactorily answered.  I understand the statements above are intended to constitute all promises and agreements, whatsoever, concerning my enlistment for prior service enlistment bonus.  Any other promise, representation, or commitment made to me in connection with my enlistment for this bonus have been entered below in my own handwriting, or they are hereby waived.”  

2.  In the processing of this case, an advisory opinion was obtained from the Senior Army Reserve Career Counselor, Office of the Deputy Chief of Staff, G-1, in Washington, D.C.  The opinion points out that based on the applicant’s last DD Form 214 for the period ending 30 August 1992 and available records, he previously served in the military for a total combined period in excess of 16 years.  The opinion states that the PSEB statute 37 U.S. Code 308i and Department of Defense Instruction 1205-21 (September 1999) restricts the payment of a PSEB to applicants with not more than 16 years “total military service.”  Apparently, the recruiting officials only calculated his active duty service and not his total military service and erroneously offered the PSEB.  The applicant was not eligible for the bonus by statute.  That office recommended that the Board not grant the applicant’s request for payment of the PSEB based on the statute limitations.  However, alternate courses of action could be a renegotiation of the enlistment contract to a lesser term or the applicant could request separation due to an erroneous contract.  

3.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 11 November 2008, the applicant responded with an issue not related to his original request.

4.  Title 10, U.S. Code, Section 1552 (Correction of military records: claims incident thereto) states, in pertinent part, that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.  

5.  Title 37, U.S. Code, Section 308i (Special pay: prior service enlistment bonus) states, in pertinent part, that a person who is a former enlisted member of an armed force who enlists in the Selected Reserve of the Ready Reserve of an armed force for a period of 3 or 6 years in a critical military skill designated for 
such a bonus by the Secretary concerned and who meets the requirements of paragraph 2 may be paid a bonus.  Paragraph 2 states, in pertinent part, that a bonus may only be paid under this section to a person that has not more than 16 years of total military service and received an honorable discharge at the conclusion of all prior periods of service. 

6.  Paragraph 7-3 (Defective enlistments or reenlistments) of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) states, in pertinent part, that a defective enlistment or reenlistment exists as a result of a material misrepresentation by recruiting or retention personnel, upon which the Soldier reasonably relied, and the Soldier was induced to enlist or reenlist with a commitment for which the Solider was not qualified or the Soldier received a written enlistment or reenlistment commitment from recruiting or retention personnel for which the Soldier was qualified, but which cannot be fulfilled by the Army.

DISCUSSION AND CONCLUSIONS:

1.  It appears a Government error was made when recruiting officials informed the applicant that he was eligible for the PSEB.  

2.  Evidence of record shows the applicant had over 19 years of military service when he enlisted in the USAR on 8 December 2007.  His December 2007 enlistment contract informed him (and his recruiters) that he needed less than 16 years of military service to be eligible for the bonus.  

3.  The applicant is not eligible for the PSEB.  It does not appear that a record correction could be made that would make the applicant eligible to receive the bonus.  Regrettably, there is no basis for granting the applicant’s request.

4.  Although a record correction cannot be made that would qualify the applicant for the PSEB, there is a regulatory remedy for correcting that error (i.e., to request discharge for a defective enlistment agreement or unfulfilled enlistment commitment).    

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.




      _______ 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)                                         AR20080012804



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ABCMR Record of Proceedings (cont)                                         AR20080012804



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