IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20080015652 


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 payment of her enlistment bonus (EB), off-peak ship bonus, and student loan repayment (SLRP) benefits. 

2.  The applicant states, in effect, she should receive all bonuses and benefits promised in enlistment contract with the California Army National Guard (CAARNG).  She believes the non-payment of her bonuses and SLRP benefits is unjust and that the CAARNG was aware of her ROTC experience, as she was a Cadet with them previously and because she had the same recruiter during both enlistments.  She states she was granted a waiver by the same chain of command that secured all bonus control numbers.  However, after she completed her contractual obligation of shipping off-peak within 12 days and then completing initial entry training, she was denied payment of her bonuses.  She further states that had she known she was ineligible she would have made different choices.  

3.  The applicant provides the following documents in support of her application:  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 
16 August 2003; Annex S (Student Loan Repayment Program Addendum Army National Guard of the United States), Annex E Enlistment Bonus Addendum Army National Guard of the United States) and Statement of Understanding for the Off-Peak Ship Bonus (NGR 600-7-1-R-E Attachment), dated 13 March 2003); Recruiting Production Worksheet; DD Form 1966)Record of Military Processing –Armed Forces of the United States), dated 13 March 2003; National Guard Bureau (NGB) letter, dated 22 April 2008; and Office of The Adjutant General (OTAG) CAARNG Memorandum, dated 12 March 2003. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she initially enlisted in the CAARNG on 21 August 2001 and continually served for 9 months and 27 days until being honorably discharged on 17 June 2002.  The NGB Form 22E she received upon her discharge shows she was separated under the provisions of Paragraph 
8-26g(2), National Guard Regulation (NGR) 600-200, by reason of erroneous enlistment/or extension.  It also shows in item 26 that she received a reenlistment eligibility code of RE1.

2.  On 12 March 2003, the applicant was granted a waiver for her erroneous enlistment or extension by the OTAG, CAARNG, for the purpose of enlisting in the CAARNG.  

3.  On 13 March 2003, the applicant enlisted in the CAARNG for a period of 7 years and 8 weeks.  The applicant's Official Military Personnel File (OMPF) contains an NGR Form 600-7-5-R-E (Student Loan Repayment Program Addendum Army National Guard) to her DD Form 4 (Enlistment/Reenlistment Document- Armed Forces of the United States), which was prepared during the applicant's CAARNG enlistment processing.   The applicant annotated this document in Section II (Eligibility) indicating that she was a non-prior service applicant and that she was enlisting for a term of service of at least 6 years in the ARNG with a concurrent contractual and statutory military service obligation of 8 years.  

4.  The NGR Form 600-7-5-R-E prepared on the applicant also shows that she was enlisting in a valid position vacancy in the critical skill military occupational specialty (MOS) 27D10, authorized for SLRP by Headquarters, Department of Army.  It also stipulated she must remain in the contracted MOS for the entire period of her enlistment contract.  It further stated that the applicant had 7 existing loans in the amount of $26,000.  However, the total amount of repayment for qualifying loans would not exceed $10,000.

5.  Section II (Eligibility) of Annex E of the Enlistment Bonus Addendum to the applicant’s DD Form 4 contained the statement “I am a non-prior service enlistee and have never previously served in the U.S. Armed Forces” and Section III (Payments) shows she was to receive a total bonus of $3,000.00.  On 13 March 2003, the applicant authenticated Annex E in Section VII (Statement of Understanding), which contained the following statement she was attesting to:
“I have read this entire addendum.  I understand all of the above statements concerning my enlistment bonus.  I understand that this addendum will be void if I do not meet all the requirements.  No other promises have been made to me in connection with this enlistment bonus addendum.”
6.  The applicant's OMPF also contains a Statement of Understanding for the
Off-Peak Ship Bonus, which was an attachment to the NGR Form 600-7-5-R-E.  This document shows the applicant was eligible for a $2,000 Off-Peak Ship Bonus based on her agreement to attend initial active duty for training (ADT) during the designated off-peak period, November 2002 through March 2003.  

7.  On 22 April 2008, in a response to a Congressional Inquiry, an NGB official stated that on 13 March 2003, the date the applicant enlisted in the CAARNG, the law stipulated that "The Secretary concerned may pay an accession bonus to a person who had not previously served in the armed forces."  Although the law was amended by the National Defense Authorization Act of 2008 by extending the verbiage by adding "or has served in the armed forces, but was released from such service before completing the basic training requirements of the armed forces of which the person was a member and the service was characterized as either honorable or uncharacterized."  This amendment in the law was not made retroactive.  Therefore, based on the applicant's previous service in the CAARNG of 9 months and 27 days the applicant was ineligible to receive a non-prior service enlistment bonus.

8.  In connection with the processing of this case, an advisory opinion was obtained from the NGB Acting Chief, Personnel Division.  This official stated that at the time of the applicant's enlistment she was not entitled to receive a bonus under the Selected Reserve Incentive Program.  Title 37 U. S. Code, Section 308b, states in pertinent part that "The Secretary concerned may pay an accession bonus to a person who has not previously served in the armed forces." However, the applicant's previous service of 9 months and 27 days with the CAARNG made her ineligible under the law.  He further stated that although the law was amended in 2008, it was not made retroactive.  Therefore, he recommended disapproval of the applicant's request to receive the Enlistment Bonus, Off-Peak Ship Bonus, Quick Ship Bonus, and SLRP. 

9.  On 6 November 2008, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to rebut or respond to its contents.  To date, she has failed to reply.  

10.  The applicant provides a Recruiting Production Worksheet which shows in Item 20 (Bonus Eligibility) that the recruiter indicated the applicant was eligible for a $3,000 Enlistment Bonus, SLRP, and Quick Ship Bonus.  Item 24 (Waiver) shows the applicant was granted an enlistment waiver code BCB.  Item 24 (Service Data) further shows the recruiter indicated the applicant was non-prior service (NPS).  The applicant's recruiter authenticated this document with his signature.

11.  Title 37, U. S. Code (USC), section 308c, in effect at the time, stated in pertinent part, that the Secretary concerned may pay an accession bonus to a person who has not previously served in the armed forces and executes a written agreement to serve as an enlisted member in the Selected Reserve of the Ready Reserve of an armed force for a period of not less than three years upon acceptance of the agreement by the Secretary concerned.   

12.  Title 37, USC, section 620, amended so much of Section 308c(c)(1) by inserting the verbiage "or has served in the armed forces, but was released from such service before completing the basic training requirements of the armed force of which the person was a member and the service was characterized as either honorable or uncharacterized."  However, this amendment in law was not made retroactive.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the non-payment of her bonuses and SLRP is unjust was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The governing law in effect at the time of the enlistment in question stipulated that an accession bonus may be paid to a person who has not previously served in the Armed Forces and executes a written agreement to serve as an enlisted member in the Selected Reserve of the Ready Reserve of an armed force for a period of not less than three years upon acceptance of the agreement by the Secretary concerned.  Although this law was amended authorizing members who have served in the military to receive an accession bonus the law was not made retroactive. 

3.  The NGB Forms 600-7-5-R-E Annexes and Attachment prepared on the applicant during her enlistment processing make clear that individuals with prior service were not eligible to receive the bonuses and benefits in question.  The applicant authenticated these documents with her signature and attested to the fact she did not have prior service.  As a result, notwithstanding the errors made by the recruiter during the process, the applicant misrepresented herself, or failed to correct her recruiter's misrepresentation of her, during her enlistment processing and as a result the addendums to her DD Form 4 authorizing the bonuses and benefits in question are void, as was outlined in the NGB Form 600-7-5-R-E she signed and agreed to on 13 March 2003.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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

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.




      _______ _   _X______   ___
               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)                                         AR20080015652



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ABCMR Record of Proceedings (cont)                                         AR20080015652



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