IN THE CASE OF:	  

		BOARD DATE:	        4 November 2008

		DOCKET NUMBER:  AR20080013142 


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 that his record be corrected to show he enlisted in the U.S. Army Reserve (USAR) for the Prior Service Enlistment Bonus (PSEB) in the amount of $15,000.00.

2.  The applicant states that he was promised in writing by an Army recruiter, Sergeant First Class (SFC) W____, the $15,000.00 PSEB.  He states that he enlisted in the Illinois Army National Guard (ILARNG) in 1997 for 6 years.  He then reenlisted in the ILARNG in 2003 for 3 years and received a $2,500.00 reenlistment bonus.  In November 2005, he spoke to an Army recruiter (SFC W____) who told him if he enlisted in the USAR for 6 years he would be eligible for a $15,000.00 PSEB.  The recruiter also advised him that he would lose the remainder of his ILARNG bonus that had not yet been paid.

3.  The applicant states he enlisted in the USAR on 9 December 2006 [sic].  During the enlistment process, he was initially advised by the Army guidance counselor, Mr. P____, that there was no bonus authorized for his military occupational specialty (MOS) of 97B (Counterintelligence Agent).  The applicant told Mr. P____ that SFC W____ had advised him that he was eligible for the bonus.  Mr. P ____ informed the applicant that he did not want to be involved in recruiting improprieties and turned the process over to SFC W____ and an SFC E____.  SFC W____ apologized to the applicant and advised him that there was a bonus.  The applicant completed his enlistment contract and SFC E____ signed the bonus addendum documentation.  He contends he advised SFC E____ that he had received a prior enlistment bonus from the ILARNG, but SFC E____ indicated that the forfeit rule only applied to former USAR units.  The applicant completed his training in MOS 97B, and when he submitted his request for bonus payment, the Defense Finance and Accounting Service (DFAS) denied him payment because (1) he had already received a reenlistment bonus from the ILARNG, and (2) there appeared to be discrepancies in his enlistment document (his signature did not appear the same as on his enlistment contract).

4.  The applicant provides a sworn statement; a copy of his assignment orders; a copy of his MOS orders; a request for exception to policy for payment of the PSEB; a copy of DA Form 5261-R (Selected Reserve Incentive Program – USAR PSEB Addendum); a copy of a portion of the DA Form 3540 (Certificate and Acknowledgement of USAR Service Requirement and Method Fulfillment); a copy of USAREC Message 05-078, subject:  Army Reserve Non-prior/Prior Service Enlistment Bonus/Quick Ship Bonus Increases and Interim Processing Procedures; a copy of a Headquarters, U.S. Army Reserve Command, memorandum, dated 1 August 2005; a copy of his DD Form 4 (Enlistment/ Reenlistment Document Armed Forces of the U.S.) and Reserves Annex; a copy of his reenlistment in the ILARNG and enlistment bonus verification; and letters from the Deputy Chief of Staff G-1, Headquarters, U.S. Army Reserve Command to the applicant's Senator and Representative in Congress.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ILARNG on 10 April 1997 for a period of 8 years. On 3 March 2003, the applicant voluntarily extended his enlistment by 3 years and received a $2,500.00 extension bonus.

2.  On 9 December 2005, the applicant enlisted in the USAR as a staff sergeant/E-6 for a period of 6 years.  A review of his Reserve Annex (Certification and Acknowledgement of USAR Service Requirement and Method Fulfillment), shows he enlisted for MOS 97B and the 378th Military Intelligence Battalion.  Section IX (Addendums) only lists the Selected Reserve Montgomery GI Bill (MGIB) as part of his enlistment.  His enlistment contract is signed with his full first, middle, and last names.

3.  The applicant provides a copy of DA Form 5261-R, dated 9 December 2005, which he purports to be the bonus addendum to his enlistment contract.  In Section III (Acknowledgement), the applicant indicated, in pertinent part, that he had not previously received a bonus for enlistment/reenlistment of service in any Reserve component of the armed forces.  In Section 5 (Entitlement), he allegedly initialed the statement "I have less than 10 years of military service and I am enlisting for 6 years for a bonus of $15,000.00."  This document was allegedly signed by the applicant and SFC E____ on 9 December 2005.  However, the applicant's signature only contains the first initial of his first name and full last name.  The signature appears to be written in a different hand than the signature on his enlistment contract.  The first letter of his last name "G" is formed completely different on the two documents, amongst other apparent discrepancies.

4.  On 26 July 2007, the applicant's unit submitted a request for an exception to policy for payment of the applicant's PSEB based on recruiter error.  The applicant was denied payment by the DFAS because he had received a prior enlistment bonus.

5.  The applicant provided copies of correspondence from the U.S. Army Reserve Command Deputy Director, Deputy Chief of Staff, G-1, to the applicant's U.S. Senator and U.S. Representative in Congress advising them that the applicant was not eligible to receive the $15,000.00 PSEB because at the time he enlisted, Title 37, Chapter 5, Section 308i of the U.S. Code prohibited Soldiers from receiving more than one enlistment bonus in their career.  The National Defense Authorization Act (NDAA) of 2006, passed on 6 January 2006, amended the law and removed the multiple bonus restriction; however, it was not retroactive.  The Members of Congress were advised that the applicant's recourse if he believed there had been a breach of contract was (a) remaining in his unit as a drilling reservist, (b) requesting a discharge according to regulatory guidance based on a defective reenlistment, or (c) applying to the Army Board for Correction of Military Records to request a correction to his record.

6.  In processing this case, an advisory opinion was obtained from the Department of the Army Headquarters Senior Army Reserve Career Counselor, Office of the Deputy Chief of Staff, G-1, who indicated that the applicant's Reserve Annex only reflected the MGIB as the only addendum associated with his enlistment.  Further, at the time the applicant enlisted, the PSEB was not offered to Soldiers who previously received a bonus.  The advisory opinion recommended denial of the applicant's request.

7.  On 9 September 2008, the applicant was provided with a copy of the advisory opinion for comment and/or rebuttal.  The applicant provided a rebuttal to the advisory opinion indicating that he should not be denied the PSEB simply because it was offered a month prior to the change in the bonus policy.  Further, he contends that the bonus was promised and a reasonable person would conclude that the offer was legitimate, he fulfilled his end of the contract by becoming MOS qualified, and he feels he is entitled to the PSEB.

8.  Army Regulation 135-7 (Army National Guard and Army Reserve Incentive Programs), in effect at the time of the applicant's enlistment, offered a prior service enlistment bonus to eligible persons with prior service who enlisted in the U.S. Army Reserve and contracted to serve in a troop program unit (TPU) of the Selected Reserve in a designated MOS announced by the Department of the Army.  The incentive offered $15,000 for an enlistment to serve 6 years in a TPU.
It was offered to persons who had completed any active military service obligation (emphasis added) and had less than 16 years of total military service, and who had an honorable discharge at the conclusion of the last period of military service.

9.  Title 37, U.S. Code, Section 308i, in effect at the time the applicant enlisted, stated that a bonus could not be paid to a person who had previously been paid a bonus for enlistment, reenlistment, or extension in a Reserve component.  On 6 January 2006, this impediment was removed.  Section 301i, thereafter, specified that to be eligible for a second bonus, a person must enter into a reenlistment or extension of an enlistment for a period of 3 years not later than the date on which the enlistment for which the first bonus was paid would expire.
A person may not be paid more than one 6-year or two 3-year bonuses under this code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had prior service in the ILARNG for which he received a $2,500.00 reenlistment bonus.  He contends that he did advise SFC E____ that he had received a prior enlistment bonus from the ILARNG, but SFC E____ assured him that the prohibition against multiple bonuses only applied to former USAR units.  Based on this advice, the applicant indicated that he had never received a reenlistment bonus on the PSEB addendum.

2.  The applicant enlisted in the USAR on 9 December 2005.  His enlistment contract did not list a bonus addendum as part of his enlistment contract.  It only listed the MGIB addendum.  He signed the enlistment contract with his full first, middle, and last names and acknowledged in the Reserve Annex that the only inclusion to the enlistment contract was the MGIB addendum.

3.  The applicant provides a copy of an alleged PSEB addendum which he purports to be legitimate and part of his enlistment contract.  A review of this document shows that there are discrepancies in his signature and it does not appear to be the same signature he used on his enlistment contract.

4.  Title 37 of the U.S. Code, Section 308i, in effect at the time the applicant enlisted, stated that the PSEB bonus could not be paid to a person who had previously been paid a bonus for enlistment, reenlistment, or extension in a Reserve component.  Although the NDAA of 2006, passed on 6 January 2006, removed this prohibition, the change was not retroactive.

5.  The advisory opinion from the Department of the Army Headquarters G-1 recommends denial of the applicant's request for payment of his PSEB.

6.  Given the foregoing, the applicant's contentions are without merit.  An enlistment contract includes all the conditions of the enlistment and, in the applicant's case, had he been eligible for, or contracted for the $15,000.00 PSEB, it is reasonable to presume that it would have been included as an addendum to the enlistment contract.  The applicant signed his enlistment contract without the PSEB bonus addendum being listed as an inclusion.  It appears he is aware of his option to request discharge for a breach of contract based on a defective enlistment contract; however, he has not exercised this option and he continues to serve in his Reserve unit.  In the absence of clear and convincing evidence to the contrary, administrative regularity is presumed in the applicant's enlistment.

7.  The bonus addendum he provided does not clearly establish that the PSEB was included as part of his enlistment contract.  The discrepancies in the applicant's signature are readily apparent.  A reasonable person can only conclude that the signature on the bonus addendum and the enlistment contract are not the same.  Therefore, in the absence of clear and convincing evidence, there is insufficient evidence upon which to base a grant of the applicant's request.

8.  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 did not submit any 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.


																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)                                         AR20080013142



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ABCMR Record of Proceedings (cont)                                         AR20080013142



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