IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090001620 


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 reconsideration of his previously denied request that he be paid a United States Army Reserve (USAR) Prior Service Enlistment Bonus (PSEB) in the amount of $15,000 per his enlistment contract.

2.  The applicant contends that when he enlisted in the USAR for a period of 6 years on 28 April 2007, it was with the understanding that he would receive a $15,000 PSEB.  In his initial request, the applicant stated, in effect, that his intent was to enlist for 1 year under the provisions of the "Try Out" contract until he was informed by recruiting personnel at the Military Entrance Processing Station (MEPS) that he was eligible for the PSEB and rendered an enlistment contract attesting to that fact.  The applicant also stated that following completion of his military occupational specialty (MOS) qualification course, paperwork was submitted for him to receive his first bonus payment.  This resulted in the applicant being informed that he was not eligible for an enlistment bonus based upon the fact that his "total" prior service, to include his service in the Individual Ready Reserve, exceeded 17 years, and the pertinent regulations stated that anyone with over 16 years of "total" service is not eligible for an enlistment bonus.  The applicant continued that the pertinent part of the addendum to his enlistment contract reads: "I have less than 16 years of military service and I am enlisting for 6 years for a bonus of $15,000."  The applicant further contends that with the omission of the word "total" in the addendum of the contract, the MEPS personnel logically and reasonably interpreted this to mean the number of good years toward retirement of which, he only had 11 years at the time.  The applicant concludes that since it was reasonable to assume that the contract accurately reflects the regulations, the regulations were not consulted; he trusted the MEPS personnel were proficient, and signed the contract in good faith.

3.  The applicant provides a copy of a 4 page self-authored statement that he prepared to file as an Inspector General complaint as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005774 on 25 September 2008.

2.  The applicant provides a new argument that his request should be approved based upon the fact that the Chief, Incentives Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, recommended that his contract be honored for moral commitment, in accordance with the provisions of Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraphs 8-4b (2) and 8-6b, which he considers to be law.  The applicant also contends that his request should be approved because he believes the Chief, Incentives Branch, did not adequately explain his case when he rendered an advisory opinion for his initial request.  This argument was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant enlisted in the USAR on 28 April 2007 for a period of 6 years.

4.  Item 29 (Certification of Applicant) of the applicant's DD Form 1966/3 (Record of Military Processing - Armed Forces of the United States), dated 28 April 2007, shows he certified that the information given by him in this document was true, complete, and correct to the best of his knowledge and belief.  The applicant also indicated that he understood that he was being accepted for enlistment based on the information provided by him in this document and that if any of the informa-tion was knowingly false or incorrect, he could be tried in civilian or military court and could receive a less than honorable discharge which could affect his future employment opportunities.  Item 32 of this form shows the applicant was enlisting to qualify in a specific MOS and to be assigned to a specific unit in return for receiving a PSEB in the amount of $15,000.

5.  Section IV (Obligation) of the applicant's Selected Reserve Incentive Program – USAR PSEB Addendum shows that he was enlisting to fill a requirement in a Selected Reserve troop program unit.  Section V (Entitlement) of the addendum shows the applicant stated that he was eligible for a prior service enlistment bonus based upon the facts that he had less than 16 years of military service and he was enlisting for 6 years for a bonus of $15,000.  The initial payment of 50 percent would be paid upon award of the contracted MOS and the remainder would be paid in increments of 25 percent of the original bonus amount at the end of his second and fourth years of satisfactory services in a USAR Selected Reserve unit.  Section IX of the addendum shows the applicant acknowledged his understanding of each of the aforementioned statements and that each of his questions had been answered satisfactorily.  The applicant also indicated that he understood the statements were intended to constitute all promises and agreements, whatsoever, concerning his enlistment for a prior service enlistment bonus.  In closing, the applicant acknowledged that any other promise, representation, or commitment made to him in connection with his enlistment for this bonus had been entered below in his own handwriting.  There are no handwritten entries below.  The applicant authenticated this document with his signature on 28 April 2007.

6.  Headquarters, USAR Command, Fort McPherson, Georgia, Letter, dated 20 February 2008, shows the Deputy Director, Deputy Chief of Staff, G-1, responded to an inquiry that a Member of Congress had made on behalf of the applicant regarding his PSEB from the USAR.  The Deputy Director informed the Member of Congress that Title 37, Chapter 5 of the US Code prevents Soldiers with more than 16 years of service to receive a PSEB.  The Deputy Director also informed the Member of Congress that unfortunately, the applicant had more than 16 years of service at the time of his enlistment on 28 April 2007; therefore, he was ineligible for the bonus.  The Deputy Director stated that the applicant believed there was a breach of contract and afforded him an opportunity to elect between 3 options:

	a.  Remain in his unit as a drilling Reservist.

	b.  Request discharge according to regulatory guidance.

	c.  Apply to the Army Review Board Agency (ARBA) Support Division to pursue any further perceived injustices with the understanding that filing such an application did not imply that favorable action would be taken.

7.  On 13 March 2008, the applicant elected to submit a request for relief through the ARBA Support Division to the ABCMR.

8.  During the initial processing of this case, an advisory opinion was rendered by the Chief, Incentives Branch, of the Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, DC.  The Chief, Incentives Branch, stated, in pertinent part, that based on the law, and documents demonstrating the applicant's time in service, he exceeded the 16-year limitation.  The Chief, Incentives Branch, opined that the contract signed by the applicant and personnel at the MEPS presented an erroneous commitment by the Army.  The Chief, Incentives Branch, recommended that the applicant's contract be honored for moral commitment, in accordance with Army Regulation 601-210, paragraphs 8-4b(2) and 8-6b.

9.  In compliance with the Title 10 United States Code - Armed Forces, subsection 1556 - Ex parte communications statute - a copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant concurred with the advisory opinion on 23 May 2008.

10.  The Army policy for erroneous or unfilled enlistment commitments is detailed in paragraph 8-4 of Army Regulation 601-210 and provides, in pertinent part, that when a breach of enlistment commitment occurs, the service member has a reasonable time to present a claim.  (The time period normally is 30 days.)  The time starts from the date the member is informed that his or her commitment will not be honored, or he or she discovers that the commitment has been breached. 

	a. Above time limits will be applied with discretion in each case. 

	b. Per paragraph 8-6, claims will be forwarded that:

		(1) Cannot be resolved at the local level.

		(2) Should be honored for moral commitment or alleged verbal commitment.

11.  The Army policy detailed in paragraph 8-6b of Army Regulation 601-210 provides, in pertinent part, that the Commanding General of the Army Human Resources Command will make a decision on all cases where Soldiers allege an error occurred in processing an enlistment.  Questionable cases may be forwarded to the Chief, Incentives Branch, of the Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, DC (HQDA, DCS, G-1 (DAPE-MPA)) for determination.


12.  The law prescribing the authority and eligibility requirements for prior service enlistment bonuses is detailed in Title 37, United States Code - Armed Forces, subsection 308i provides, in pertinent part, the following 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.

13.  The United States Supreme Court’s opinion in United States v. Larionoff,   431 US 864 (1977) concerning military re-enlistment bonuses does not alter fundamental rules of law that (1) a service member’s entitlement to military pay is governed by statute rather than ordinary contract principles, and (2) in the absence of specific statutory authority, the Government is not liable for negligent or erroneous acts of its agents; hence the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can the bonus amount be established through private negotiation or contract between the member and his recruiter.


14.  Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 7-3, states a Soldier may be separated by reason of a defective enlistment or reenlistment agreement when (1) 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 Soldier was not qualified; or (2) 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.  The applicant contends that he should be paid a USAR PSEB in the amount of $15,000 per his enlistment contract for the following reasons:

	a.  He believes the omission of the word "total" from the Selected Reserve Incentive Program – USAR PSEB Addendum is a blatant discrepancy and leaves the contract open to interpretation.

	b.  He signed the contract in good faith and should not be held responsible for providing erroneous information when the personnel who worked at the MEPS were subject matter experts and should have computed his total prior service properly for him.

	c.  He believes the Chief, Incentives Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, did not adequately explain his case when an advisory opinion was rendered for his initial request.  

	d.  The Chief, Incentives Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1 recommended that his contract be honored for moral commitment, in accordance with the provisions of Army Regulation 601-210, paragraphs 8-4b(2) and 8-6b which the applicant considers to be law.

2.  The applicant's contention that the statement in his Selected Reserve Incentive Program – USAR PSEB Addendum which reads "I have less than 16 years of military service and I am enlisting for 6 years for a bonus of $15,000" is subject to interpretation, lacks merit because there is absolutely no indication that it implies anything other than his cumulative service.

3.  The applicant's contention that he signed the contract in good faith and should not be held responsible for providing erroneous information, lacks merit due to the fact that he acknowledged his understanding of each of the statements in his contract and associated addendums and that each of his questions had been answered satisfactorily.  The applicant also indicated that he understood the statements were intended to constitute all promises and agreements, whatsoever, concerning his enlistment for a prior service enlistment bonus.

4.  The applicant contradicted himself when he contended that the Chief, Incentives Branch did not adequately explain his case in his advisory opinion, but he concurred with his recommendation without providing any additional comments. 

5.  Although the Chief, Incentives Branch, recommended that the applicant's contract be honored for moral commitment, in accordance with the provisions of Army policy, he also stated that based on the law, and documents demonstrating the applicant's time in service, he exceeded the 16-year limitation.

6.  According to the fundamental rules of law, the Army is not liable for the erroneous actions of its officers, noncommissioned officers, agents, or employees, even though committed in the performance of their duties.  However, the applicant did sign a contract in good faith.  Requiring the applicant to uphold his portion of the contractual obligation by serving 6 years in the USAR without receiving the bonus he was promised would not be equitable.

7.  It is in the best interest of the Army to retain the applicant in his current MOS and have him serve in the unit and capacity which were stipulated in his contract, but to forego the erroneous portion of the contract which stated that he would receive a $15,000 USAR PSEB.

8.  Army Regulation 135-178 provides for the voluntary early separation of an enlisted Soldier based upon a defective enlistment when 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 Soldier was not qualified.

9.  If the applicant is compelled to request separation, this is a case where the applicant’s separation should be deemed to be in the best overall interest of him and of the Army.  If the applicant desires, he may submit his voluntary request for separation, it should be accepted, and he should be discharged from the Army.

10.  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.  Therefore, it would not be appropriate to grant the requested relief.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080005774, dated 25 September 2008.



      _______ _   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)                                         AR20090001620



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ABCMR Record of Proceedings (cont)                                         AR20090001620



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