IN THE CASE OF:	  

		BOARD DATE:	      30 APRIL 2009

		DOCKET NUMBER:  AR20080015396 


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, entitlement to his Prior Service Enlistment Bonus (PSEB) in the amount of $15,000.  He asks that the first installment be paid immediately and that the second installment be paid in accordance with his enlistment contract at the 4th anniversary of his July 2006 enlistment in the Army National Guard.

2.  The applicant states he was promised an enlistment bonus and the Student Loan Repayment Program (SLRP) as incentives for enlisting in the Army National Guard.  He maintains his enlistment contract should be honored.  He states his enlistment contract and bonus addendum were verified and approved at all levels, including the state’s incentive manager.  He states that months later “they” decided he could not be paid the enlistment bonus and that if he separated for any reason he would lose entitlement to the SLRP.

3.  The applicant provides a copy of his July 2006 Army National Guard enlistment contract, including the Prior Service Enlistment Bonus Addendum, a copy of his 1999 DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of his Enlistment Notification Form showing a Prior Service bonus amount of $15,000.






CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant served an initial period of military service as a Regular Army enlisted Soldier between August 1996 and May 1999.  He was released from active duty in May 1999, with an honorable characterization of service, in order to attend school and he was transferred to the Kentucky Army National Guard effective 19 May 1999, the day following his release from active duty.

2.  On 11 December 2002 the applicant was released from the Kentucky Army National Guard as a result of unsatisfactory participation.  His service in the Army National Guard was characterized as “general-under honorable conditions” and he received a Reentry (RE) Code of “3.”

3.  On 11 July 2006 a waiver of the applicant’s RE Code of RE-3 was requested to permit the applicant to enlist in the Kentucky Army National Guard.  The waiver request also indicated the applicant’s prior release from the Army National Guard was under honorable conditions.  The waiver was approved and on 
21 July 2006 the applicant executed a 6 year enlistment contract with the Kentucky Army National Guard.  

4.  Included with the enlistment documents contained in the applicant’s Official Military Personnel File (OMPF) was a Student Loan Repayment Program Addendum and a NGB Form 600-7-6-R-E (Annex X to DD Form 4 or DA Form 4836 Prior Service Enlistment Bonus Addendum Army National Guard of the United States).

5.  The PSEB addendum notes the applicant would receive a total bonus of $15,000 for a 6 year enlistment, that his initial payment of $7,500 less taxes would be processed on the date his enlistment contract takes effect, and subsequent payment of $7,500 less taxes would be processed upon his 4th year anniversary of service in the National Guard.  The addendum makes no reference to any requirement that the applicant have received an honorable discharge at the conclusion of all prior periods of service in order to be eligible for the PSEB.  

6.  The addendum does contain the statement “I understand that I will not receive a payment if I do not meet all requirements at the time of my enlistment.  My enlistment will be verified and certified by the proper authority prior to any payment being processed.”  The applicant and his recruiting officials signed the enlistment bonus addendum on 21 July 2006.


7.  The contract was verified by the “State Incentive Manager for accuracy” on 
12 September 2006 and a bonus control number of “P0609090006 KY” was assigned.

8.  In the processing of this case an advisory opinion was provided by the Acting Chief, Personnel Division of the National Guard Bureau.  The opinion recommended denial of the applicant’s request citing United States Code Title 37, Chapter 5, Section 308i(a)(2)(A) which states the “person has not more than 16 years of total military service and received an honorable discharge at the conclusion of all prior periods of service.”  The opinion noted the applicant was not eligible for the bonus as evidenced by his “general-under honorable condition” characterization of service upon his separation from the National Guard in 2002.  The opinion noted the applicant did not meet the criteria and the “bonus contract was rejected upon review by the State Incentive Awards Manager.”  The applicant was provided an opportunity to respond to the advisory opinion but did not submit any comments.

9.  United States Code title 37, Chapter 5, Section 308i states: 

a. Authority and Eligibility Requirements.— 

   (1)  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 three or six 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 as prescribed in subsection b. 

   (2)  A bonus may only be paid under this section to a person who meets 
each of the following requirements:  (A) The person has not more than 16 years of total military service and received an honorable discharge at the conclusion of all prior periods of service.  (B) The person was not released, or is not being released, from active service for the purpose of enlistment in a reserve component.  (C) The person is projected to occupy, or is occupying, a position as a member of the Selected Reserve in a specialty in which the person— 
(i) successfully served while a member on active duty and attained a level of qualification while on active duty commensurate with the grade and years of service of the member; or (ii) has completed training or retraining in the specialty skill that is designated as critically short and attained a level of qualification in the specialty skill that is commensurate with the grade and years of service of the member. 



b. Bonus Amounts; Payment.--(1) The amount of a bonus under this 
section may not exceed:  (A) $15,000, in the case of a person who enlists for a period of six years; (B) $7,500, in the case of a person who, having never received a bonus under this section, enlists for a period of three years; and
(C) $6,000, in the case of a person who, having received a bonus under this section for a previous three-year enlistment, reenlists or extends the enlistment for an additional period of three years.

10.  Title 10, U.S. Code, section 1552, the law which provides for the Board, states that “The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s “general-under honorable conditions” characterization of service for his prior period of service with the Army National Guard was well documented and known to the applicant’s recruiting officials who processed a request for a waiver in order to permit him to enlist in the Kentucky Army National Guard in 2006.  That wavier document was part of the applicant’s enlistment packet as reflected in his OMPF.

2.  In spite of this well documented characterization of service, the applicant was still permitted to execute an addendum for a PSEB in the amount of $15,000.  Contrary to the advisory opinion, the evidence available indicates the “State Incentive Manager” verified the contract for accuracy on 12 September 2006; nearly 2 months after the applicant and his recruiting officials signed the addendum.

3.  It is clear that the governing law did not authorize a PSEB for individuals who had not received an honorable discharge at the conclusion of all prior periods of service, as was the case with the applicant.  The fact that the PSEB addendum was verified by the State Incentive Manager for accuracy on 12 September 2006 and assigned a bonus control number, is certainly unfortunate but does not change the underlying basis for the applicant’s disqualification for the bonus under the law.

4.  The Board has long held that errors on the part of government officials which would clearly violate an existing law do not serve as a basis to establish a binding contractual agreement between the applicant and the Army.
5.  In view of the fact that the applicant did not meet the legal requirement for the PSEB, the error on the part of his recruiting official and the State Incentive Manager which implied otherwise, is not sufficiently mitigating to warrant the relief requested.

6.  However, the Board does acknowledge that the applicant entered into an erroneous contract with the Army through no fault of his own.  The contract was executed as a result of the failure of recruiting personnel and the State Incentive Manager to recognize through due diligence that the applicant was ineligible for the enlistment bonus.  Given the failure on the part of government officials to follow what should have been reasonable procedures during the applicant’s enlistment processing, the Board concludes that it would be appropriate to allow the applicant to elect to be discharged from the Army National Guard if he so chooses.

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)                                         AR20080015396



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ABCMR Record of Proceedings (cont)                                         AR20080015396



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