IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090003968 


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, payment of an enlistment bonus.   

2.  The applicant states, in effect, he was offered a $5,000 bonus to join the United States Army Reserve (USAR) as a prior service enlistee and the total of his prior service was never questioned at the time.   

3.  The applicant provides self-authored statements in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant’s record shows that after completing a total of 11 years, 
9 months and 22 days of prior military service, the applicant enlisted in the USAR for 6 years, in the grade of sergeant (SGT), on 7 October 1996.  The DD Form 4 (Enlistment Record) prepared for this enlistment lists no prior service in item 7 (Previous Military Service Upon Enlistment/Reenlistment).  

3.  A Statement of Understanding containing a record of the contractual obligations, guarantees, and annexes to the enlistment contract prepared on the applicant during his USAR enlistment processing confirms he was enlisting in the USAR as a prior service applicant to serve in military occupational specialty (MOS) 91C in the Selected Reserve, and that he was guaranteed the following incentives in conjunction with this enlistment:  Montgomery GI Bill (MGIB), Student Loan Repayment Program (SLRP) and Prior Service Enlistment Bonus (PSEB).  The PSEB amount authorized in Annex B to his enlistment contract is $5,000.00.  The applicant and the recruiting guidance counselor authenticated this document with their signatures on 7 October 1996.  

4.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1 Force Alignment Branch.  This official confirms that the policies in effect at the time of the applicant’s enlistment in the USAR specified that to be eligible for a PSEB, an applicant must have had less than 10 years of total military service.  The statute governing the PSEB was changed to permit payment of the PSEB to applicants with less than 14 years of total military service.  This official indicates that apparently recruiting officials computed the applicant’s prior service as 7 years, 2 months, and 12 days and erroneously authorized a PSEB based on that total amount of prior service.  This official confirms the injustice in this case was in part the result of errors made by recruiting officials.  He further states that there remains a question regarding the total amount of prior service completed by the applicant prior to his 7 October 1996 enlistment in the USAR given the military service obligation (MSO) when he initially entered active duty in 1978 was only 6 years.  He finally concludes that it would be appropriate to honor the applicant’s enlistment contract based on the Army’s moral commitment to the applicant in accordance with the governing Army enlistment regulation.  

5.  On 20 April 2009, the applicant concurred with the G-1 advisory opinion. 

6.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA) and the USAR.  


7.  Chapter 6, section II, of Army Regulation 601-210 contains guidance on the Guidance Counselor Processing Phase.  It states, in pertinent part, that Guidance Counselors will verify the applicant's eligibility for enlistment and counsel applicants who failed to meet specific qualifications.

8.  Chapter 8 of Army Regulation 601-210 contains guidance on actions required after enlistment and paragraph 8-4 contains guidance on erroneous or unfulfilled enlistment commitments.  It states, in pertinent part, that promises made in the enlistment contract should be honored for moral commitment or alleged verbal commitment.  

9.  Title 37 of the U. S. Code, Section 308i provides the legal authority for the payment of a Prior Service Enlistment Bonus.  Subparagraph (a)(2) outlines eligibility criteria and states, in pertinent part, that a bonus may only be paid under this section to a person who has not more than 16 years (14 years-1997 and 10 years-1996), and received an honorable discharge at the conclusion of all prior periods of active duty service.  

10.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNGUS) and the USAR incentive programs.  Chapter 2 contains guidance on the Selected Reserve PSEB.  At the time, it provided that a cash bonus may be paid to a member who has less than 10 years of total military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be paid the $5,000 PSEB promised him in his 1996 enlistment contract was carefully considered and found to have merit.  Under chapter 8-4(2) of Army Regulation 601-210, the Army should honor its moral commitment or alleged verbal commitment. 

2.  The evidence of record confirms the applicant openly provided his prior service information and documents to recruiting officials during his 1996 Selected Reserve enlistment processing, and entered into the contract in good faith.  It further confirms that the applicant was promised a $5,000 PSEB in conjunction with this enlistment and that this commitment was documented in the enlistment documents prepared.  As a result, it would serve the interest of equity and justice to honor this contractual commitment to the applicant, as recommended in the advisory opinion provided by the G-1 Chief, Incentives and Budget Branch, Enlisted Accessions Division.

3.  In 1996, at the time of the applicant’s enlistment, the governing statute provided for payment of a PSEB to members who had not completed more than 10 years of military service.  In 1997, this was changed to 14 years and in 2004 it was changed to the current requirement, which is 16 years.  

4.  Given the moral commitment made to the applicant and the fact that a subsequent law change in 1997 would have allowed payment of the bonus in question to the applicant, it would be appropriate and serve the interest of justice and equity to grant the requested relief.  Therefore, the applicant’s record should be corrected as necessary to show he had less than 10 years of total military service and was eligible to receive the $5,000 PSEB promised him in conjunction with this 7 October 1996 enlistment in the USAR, and by paying him this bonus in a lump sum at this time.  

BOARD VOTE:

____X____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing for the purpose of his 7 October 1996 enlistment that he had less than 10 years of total military service and was eligible to receive the $5,000 Prior Service Enlistment Bonus authorized in his enlistment documents at the time of his 7 October 1996 enlistment in the USAR; and by paying him this bonus in a lump sum at this time. 




      _______ _   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)                                         AR20090003968



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ABCMR Record of Proceedings (cont)                                         AR20090003968



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