BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090005411 


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, correction of his record to show he was eligible for an Enlisted Affiliation Bonus (EAB) in connection with his 6 December 2008 reenlistment in the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, his career counselor told him he was qualified to receive the EAB and he needed to reenlist for 3 years to get it, which he did with the understanding he would receive a $10,000.00 bonus.  He claims that after his unit requested the bonus, it was denied because he was not qualified.  He states that now he has reenlisted in the USAR for no money when he was in fact eligible to receive the $7,500.00 (3-year) or $15,000.00 (6-year) reenlistment bonus when he reenlisted.  He states he would like to receive what he was entitled to at the time of his reenlistment.

3.  The applicant provides the following documents in support of his application:  DD Form 4 (Enlistment/Reenlistment Document), dated 6 December 2008; DA Form 3540 (Certificate and Acknowledgement of USAR Requirements and Methods of Fulfillment), dated 6 December 2008; EAB Written Agreement, dated 6 December 2008; and Army Reserve Fiscal Year 2008 Selected Reserve Incentive Program List, dated 1 April 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after being discharged from the Army National Guard (ARNG) on 28 August 2008 by reason of unsatisfactory 
participation with a general, under honorable conditions discharge (GD) and a reentry (RE) code of 3, he was transferred to the USAR Control Group (Individual Ready Reserve (IRR)).

2.  On 14 October 2008, the applicant extended his 3 year, 4 month, 19 day enlistment of 2 November 2005 for two months, which established his new expiration of term of service (ETS) as 21 May 2009.

3.  On 19 November 2008, the applicant was transferred from the IRR to the 889th Quartermaster Company, Great Falls, MT, a USAR Troop Program Unit (TPU).

4.  On 6 December 2008, the applicant reenlisted in the USAR for 3 years.  A DA Form 3540, indentified as Annex A of his DD Form 4, shows he was reenlisting as a member of the Selected Reserve and continued assignment to a TPU.

5.  An addendum to the applicant's DD Form 4, identified as a written agreement-enlisted affiliation bonus addendum, indicates that in connection with his 3-year reenlistment in the Selected Reserve he was eligible for an affiliation bonus of $10,000.00.  The agreement, dated 6 December 2008, contained the signatures of the applicant, a service representative, and a witness.

6.  In connection with the processing of this case, an advisory opinion was obtained from a Senior Army Reserve Career Counselor from the Department of the Army (DA), Office of the Deputy Chief of Staff, G-1.  This official states that the applicant was transferred to the IRR after separating from the Montana ARNG (MTARNG) on 28 August 2008, to fulfill the balance of his military service obligation, which ended on 21 March 2009.  On 20 November 2008, the applicant transferred from the IRR to a TPU and he subsequently reenlisted for 3 years on 6 December 2008.  The official confirms that the applicant was not eligible for an affiliation bonus upon his transfer from the IRR to the Selected Reserve because he did not meet the eligibility criteria.  The affiliation bonus is only offered to Soldiers being released from active duty or IRR Soldiers whose last period of service was active duty.  A Soldier must have satisfactorily served for at least three preceding months in a TPU prior to the reenlistment to be eligible for a reenlistment bonus under the current regulatory guidance and Army policy.  In this case, the applicant was assigned to the TPU for 16 days prior to his reenlistment.  The G-1 recommends denial of the application. 

7.  On 17 July 2009, an Army Reserve Career Counselor responded to the G-1 advisory opinion on behalf of the applicant.  This representative stated that he failed to give the applicant the proper guidance and the applicant should not 
suffer because of his failure.  He claims he told the applicant he was eligible to receive the EAB when in fact he was not.  He states he had no malicious intent, but rather made an honest mistake he regrets and had he informed the applicant properly, the applicant would have waited three months while keeping in good standing with the USAR prior to reenlisting so he could receive a reenlistment bonus.

8.  Army Regulation 135-7 (Army National Guard and Army Reserve - Incentive Programs) prescribes policies and procedures for the administration of the ARNG and USAR incentive programs.  Chapter 5 contains guidance on the administration of the affiliation bonus.  Paragraph 5-3 outlines the eligibility criteria and states, in pertinent part, that an enlisted Soldier who is on assignment to an ARNG or USAR troop program unit may be paid an affiliation bonus if he/she has served on active duty in an Active Army or corresponding active duty in another United States Armed Force, or has served on active duty in an Active Guard Reserve (AGR) status.  When last released from active duty (REFRAD), the member must have been eligible to remain on active duty by reenlisting in the component to which he or she was assigned (i.e. Regular Army, ARNG, USAR, and so forth).

9.  Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) sets policies and standards for the separation of ARNG and USAR enlisted Soldiers.  Chapter 7 provides guidance on separation for defective enlistments and reenlistments and paragraph 7-3 provides guidance on separation for a defective enlistment or reenlistment agreement.  It states, in pertinent part, that a defective enlistment or reenlistment agreement exists when as a result of a material misrepresentation by recruiting or retention personnel, upon which the Soldier reasonably relied, the Soldier was induced to enlist or reenlist with a commitment for which the Soldier was not qualified.  It further states, in pertinent part, that separation is appropriate when the Soldier did not knowingly participate in creation of the defective enlistment or reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be paid the affiliation bonus he was promised was carefully considered.  However, by regulation, in order to qualify for an affiliation bonus, a member must have completed an active duty tour in the Regular Component, AGR status, or another Armed Force, and he/she must have been eligible to remain on active duty by reenlisting in the component to which he or she was assigned at the time of his/her last REFRAD.


2.  The evidence of record confirms the applicant did not satisfactorily complete a qualifying active duty tour prior to reenlisting for the affiliation bonus in question.  Given this is the primary criteria for eligibility for the affiliation bonus, it would not be appropriate or serve the interest of all those who faced similar circumstances to waive this requirement and/or to grant the requested relief as an exception to policy.

3.  The applicant is advised that he may, if he so chooses, apply for separation by reason of defective enlistment agreement under the provisions of chapter 7, Army Regulation 135-178.  If he elects this option, he should seek advice and assistance from his local career counselor and use this Record of Proceedings to support his exception to policy request for separation given it will be submitted outside of the normal submission timeframe.

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)                                         AR20090005411



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ABCMR Record of Proceedings (cont)                                         AR20090005411



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