IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090012054 


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 payment of $7,443.33, the total remaining balance of the Army Assignment Incentive Pay (AIP) that he was promised in his enlistment contract and was authorized in his orders, but was unjustly withheld from him.

2.  The applicant states that he was told by a local recruiter that he could receive an extra $400.00 pay per month for 36 months if he entered into a military occupational specialty (MOS) and a unit that was likely to deploy overseas in support of the Global War on Terrorism.  He was also told at the Military Entrance Processing Station that he would get the incentive pay if he went to Fort Hood, Fort Riley, or Fort Stewart.  He ultimately enlisted under the AIP, completed basic combat and advanced individual training, and was assigned to Fort Stewart, GA.   He was initially scheduled for assignment to the 1st Brigade but ended up at the 2nd Brigade.  In April 2006, he started receiving increments of his AIP in the form of "Save Pay" that appeared on his leave and earnings statement (LES); however, in May 2007, as he deployed overseas, he was told he would have to pay back all the monies he received (totaling $2,986.70).  He did so despite the financial strain.  He then solicited help from his Member of Congress who was able to cancel the debt and the amount of $2,986.70 was repaid to him.  He concludes that based on the AIP, he was expecting $14,400.00 ($400.00 for 36 months).  He received $6,956.67 which leaves an outstanding balance of $7,433.33 of AIP owed to him.

3.  The applicant provides a copy of the Defense Finance and Accounting Service (DFAS) memorandum, dated 22 August 2008; a copy of his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 27 August 2005; a copy of his Enlisted Record Brief, dated 22 August 2008; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 January 2009; and copies of his LES from February 2006 through November 2008 in support his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) for a period of 8 years on 27 May 2005. 
Item 2 of his DA Form 3286 (Statement for Enlistment - U.S. Army Enlistment Program - U.S. Army Delayed Enlistment Program) states, "Upon enlistment in the Regular Army, I will be enlisted under the provisions of Army Regulation 
601-280 (Active and Reserve Components Enlistment Program), program or programs as indicated below:

Program 9B, Title:  U.S. Army Station/Unit/Area/Command Enlistment Program (13IP), Request Option:  34

Program 9C, Title:  U.S. Army Incentive Enlistment Program (Army AIP), Request Option:  118

2.  Item 3 of his DA Form 3286 shows the following entry:  "I have been informed that following successful completion of required training, and assuming that I am otherwise qualified for assignment to a high priority unit likely to deploy overseas in support of the Global War on Terrorism that is designated for assignment incentive pay, I will be offered the opportunity to volunteer for a 36-month assignment to such unit.  At the time, the Secretary of the Army may enter into an agreement with me to pay monthly AIP in the amount of $400.00 for each month I serve in that assignment.  I understand that receipt of AIP is not part of this enlistment agreement and that, if assignment pay is not available to me for any reason following completion of training, such a result will not constitute a breach of this enlistment contract.  I understand that there is no guarantee that I will receive AIP."

3.  The applicant's records also show he was discharged from the DEP on 11 October 2005 and enlisted in the Regular Army for a period of 3 years and 16 weeks on 12 October 2005.  He subsequently completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty 11B (Infantryman).  He was subsequently assigned to Company B, 1st Battalion, 30th Infantry, 2nd Brigade Combat Team, Fort Stewart, GA.  He served with this unit in Iraq from on or about 10 May 2007 to on or about 15 August 2008.

4.  During the period from February 2006 through September 2006, the applicant received AIP in the amount of $400.00 per month.  However, in October 2006 his AIP stopped and in November 2006 his LES showed indebtedness in the amount of $2,986.67.

5.  On 22 August 2008, by memorandum addressed to DFAS, an official at the Incentive and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, stated that the applicant's indebtedness based on receipt of AIP was cancelled and that all debt collected to date would be repaid to the applicant.  The official added that:

	a.  His office reviewed the applicant's enlistment contract.  He enlisted for the AIP in accordance with Headquarters, Department of the Army (HQDA), message, dated 13 July 2005.  The applicant was originally assigned to the 1st Brigade, 3rd Infantry Division, Fort Stewart, but was later reassigned to a non-AIP unit.  His orders indicated he was authorized to receive AIP for the 1st Brigade, 3rd Infantry Division.

	b.  Based on a ruling by the Assistant Secretary of Defense, dated 21 May 2008, regarding recoupment of bonuses and special pays, in cases where it is against equity, good conscience, or management objectives, recoupment of bonuses or special pay is not required.

	c.  In the applicant's case, although he received AIP, his debt is cancelled as a matter of equity given the nature of his enlistment contract.

6.  An advisory opinion was obtained on 17 November 2009 from the Incentive and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  That office recommended denial of the applicant's request for additional AIP and stated that the applicant enlisted on 12 October 2005 in accordance with the HQDA incentives message, dated 13 July 2005.  He erroneously received payments under AIP and DFAS recouped the additional payments.  However, a memorandum from the same office was sent to DFAS to cancel the debt and repay the money already collected.  He received AIP for a projected assignment to the 1st Brigade when, in fact, he was assigned to the 2nd Brigade.  The 2nd Brigade was not a designated AIP unit and he should never have received the pay.  AIP was unit specific.  The applicant's DA Form 3260 clearly shows that he understood that there was no guarantee that he would receive AIP.

7.  On 17 November 2009, the applicant was provided with a copy of this advisory opinion; however, he did not respond within the allotted 30 days.

8.  HQDA message, dated 13 July 2005, announced the Army AIP Program and stated that effective on this date, non-prior service applicants selecting training under request option "34," incentive option "118," and enlistment location (unit AIP) and enlisting for a term of service of 3 or more years for a new contract in any MOS in Tier 1-8, enlistment incentive program change effective 20 June 2005 or for any MOS not listed in Tier 1-8, in accordance with paragraph 2 of the above cited message, that have projected shortages identified in the request system and agree to be assigned to a designated priority unit will be eligible to receive AIP.  AIP is paid after the Soldier successfully completed AIT upon assignment to the designated unit.  Payment will begin upon completion of all training and once the Soldier reports to the designated unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be paid $7,443.33, the total remaining balance of the AIP that he was promised in his enlistment contract and authorized in his orders, but was unjustly withheld from him.

2.  The evidence of record confirms that the applicant enlisted under the AIP contingent upon his assignment to a designated AIP unit.  He acknowledged that there was no guarantee that he would receive AIP.  He was subsequently assigned to Fort Stewart, GA, and received a portion of the AIP.  However, having been assigned to a non-AIP specific unit, he should never have received the pay.

3.  Since the applicant was assigned to a non-AIP designated unit, he is not entitled to AIP.  The collected debt was repaid to him as a matter of equity, not as a matter of entitlement.  There is neither an error nor an injustice.  Therefore, in view of the foregoing evidence, the applicant is not entitled to 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 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)                                         AR20090012054



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ABCMR Record of Proceedings (cont)                                         AR20090012054



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