IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090010962 


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, that the recoupment of his Selective Enlistment Bonus (SEB) be cancelled and that he be reimbursed all portions of the bonus already collected. 

2.  The applicant states, in effect, he was authorized a $15,000 reenlistment bonus in a reenlistment contract he signed on 12 June 2007, which was to be effective 8 June 2008.  However, on 7 September 2007, prior to the effective date of reenlistment, he accepted a military technician position, not knowing that his bonus would be recouped.  Recoupment started in July 2008 and that is when he found out he was required to complete 6 months of his reenlistment or recoupment would begin. 

3.  The applicant provides the following documents in support of his application:  Self Authored Statement; DD Form 4 (Enlistment/Reenlistment Document); 
DA Form 3540 (Selected Reserve Incentive Program-United States Army Reserve (USAR) Reenlistment Bonus Addendum); Request for Exception to Policy Troop Program Unit (TPU) Reenlistment Bonus Recoupment, dated 
30 December 2008; Headquarters, U.S. Army Reserve (USAR) Command Letter, dated 4 May 2009; Congressional Inquiry, dated 11 March 2009; Electronic Mail 
(e-mail) Messages; Office of the Deputy Chief of Staff, G-1 Policy Memorandum, dated 14 August 2008; and Office of the Assistant Secretary Manpower and a Reserve Affairs Memorandum, dated 26 February 2009.
CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains a Chronological Statement of Retirement Points that shows he initially enlisted in the USAR on 13 July 1993.

2.  On 12 June 2007, the applicant completed a DD Form 4 in which he reenlisted in the USAR, in the rank of SSG, for an indefinite period, effective 
8 June 2008.  

3.  A DA Form 3540 (Selected Reserve Incentive Program –USAR Reenlistment Bonus Addendum) prepared during his reenlistment processing shows in Section III (Acknowledgment), that the applicant was authorized a cash bonus of $15,000.00 in conjunction with his reenlistment in the Selected Reserve (SELRES).  Section V (Entitlement) states, in part, that retention of the bonus once paid was contingent upon satisfactory participation in the SELRES and that the bonus was subject to current recoupment policy.  

4.  Section VIII – (Termination) of the DA Form 3540 stipulated that entitlement to a reenlistment bonus would be terminated if the applicant accepted a permanent military technician or Active Guard and Reserve (AGR) position where membership in the SELRES is a condition of employment.  It further stipulated that his bonus would be recouped if he had not satisfactorily served 6 months or more of the SELRES service under this agreement prior to accepting a permanent military technician or AGR position.  The applicant and the retention noncommissioned officer authenticated this document with their signatures on 
12 June 2007.

5.  On 2 September 2007, the applicant was hired as a military technician.  

6.  In July 2008, the applicant's reenlistment bonus began being recouped.

7.  On 14 August 2008, the Office of the Deputy Chief of Staff, G-1 published a policy memorandum, Subject:  "Change in Policy Governing Bonus Recoupment", which granted the authority to cancel recoupment actions regarding USAR Soldiers in a bonus status that were going into the Active Component (AC), military technician program, AGR or officer status.  Paragraph 3d stated, in pertinent part, that effective 21 May 2008, SELRES members who accept an AGR position or military technician position where membership in a Reserve component is a condition of employment will have their enlistment/reenlistment/affiliation bonus terminated without the recoupment regardless of the length of service in the losing SELRES status.  The previous 
6 month SELRES membership rule is eliminated for these Soldiers.
8.  On 30 December 2008, the applicant submitted a request for exception to policy requesting he be allowed to retain his SELRES reenlistment bonus.  No response to this request is on file in his record. 

9.  On 26 February 2009, the Office of the Assistant Secretary Manpower and Reserve Affairs (ASA&MRA) published a memorandum, Subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends.  This policy stipulated that recoupment of bonuses on a Soldier that accepted a military technician position was against equity and good conscience and therefore would not be recouped.  However, there were no retroactive provisions provided.  

10.  On 4 May 2009, in response to a Congressional Inquiry, the Deputy Director, Chief of Staff, G-1 stated that based on the fact that the applicant had accepted a military technician position on 2 September 2007, which was prior to the 8 June 2008 effective date of his reenlistment contract, he was not eligible to retain his reenlistment bonus.  This official stated, in pertinent part, that the policy change, dated 14 August 2008, did not impact his situation due to the fact he took the military technician position before the effective date of his new reenlistment contract.  

11.  The applicant provides a copy of an e-mail message from the G-1, Senior Career Counselor, which informed him that although the 26 February 2009,  ASA&MRA Memorandum stated that the Army recognized that recouping a bonus on a Soldier that accepts a military technician position is against equity and good conscience and therefore would not be recouped, it provided no retroactive provisions and he doubted the USAR decision to recoup the applicant's reenlistment bonus would be reversed.  He finally recommended the applicant apply to this Board for relief. 

12.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNG) and USAR incentive programs.  Paragraph 2-6, states in pertinent, that a Soldier's entitlement to an enlistment bonus will stop if the Soldier accepts a permanent civilian position where membership in the SELRES is a condition of employment. 

13.  Paragraph 2-8, of the same regulation states in pertinent part that recoupment of bonus payments will be started by the unit commander when entitlement to such incentive is terminated based on acceptance of a permanent civilian position where membership in the SELRES is a condition of employment prior to having served 6 months of the enlistment term of service. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the recoupment of his SEB should be cancelled and he should be reimbursed all portions of the bonus already collected were carefully considered.  However, there is insufficient evidence to support his contentions.  

2.  The regulation and policy in effect at the time the applicant completed his enlistment contract on 12 June 2007, which authorized the bonus in question, required recoupment of the SELRES bonus in cases of members who accepted a military technician position prior to completing 6 months of their contracted service in the SELRES.  

3.  In connection with his reenlistment processing in June 2007, the applicant signed a DA Form 3540, in which he acknowledged that his bonus would be recouped if he had not satisfactorily served 6 months or more of SELRES service under his reenlistment agreement prior to accepting a permanent military technician position.  As a result, it is clear the applicant knew or should have known his bonus would be recouped when he accepted the military technician position on 7 September 2007, prior to beginning his new contract on 8 June 2008, and prior to the publication of the G-1 Policy Memorandum, dated 
14 August 2008.  

4.  The G-1 Policy Memorandum, dated 14 August 2008, eliminated the recoupment provisions for members who accepted a military technician position on or after 21 May 2008, and the 26 February 2009 ASA&MRA memorandum provides no provisions for retroactive relief in cases of bonus already collected.  As a result, given the applicant accepted his military technician position prior to the publication of the policy change memorandum, and because he never actually began serving on the enlistment for which he received the bonus there is an insufficient evidentiary basis to reverse the decision.   

5.  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 any new evidence or argument 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)                                         AR20090010962



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ABCMR Record of Proceedings (cont)                                         AR20090010962



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