IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100007294 


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 reimbursement of the $2,400.00 paid in taxes from his 3-year $7,500.00 reenlistment bonus.

2.  He states he reenlisted for a period of 3 years while deployed in Iraq, but the incorrect date was recorded on his reenlistment contract.

3.  He provides copies of the following:

* his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* his National Guard Bureau (NGB) Form 600-7-3-R-E (Annex R to DD Form 4 or DA Form 4836 Reenlistment/Extension Bonus Addendum - Army National Guard (ARNG) of the United States)
* a 3rd Sustainment Command (Expeditionary) press release
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two memoranda for record (MFR)
* a statement from the 39th Brigade Retention Noncommissioned Officer (NCO) with Recruiter Request Status Report
* a screen printout from the Installation Management Application Resource Center (IMARC) website
* a letter from the Military Department of Arkansas Office of the Adjutant General (OTAG) Office of the Inspector General (OIG)


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Arkansas Army National Guard (ARARNG) on 30 January 2002 for 8 years.  He held military occupational specialty 21B (Combat Engineer).

2.  On 5 January 2008, he was ordered to active duty in support of Operation Iraqi Freedom.

3.  His DD Form 4 shows he reenlisted in the ARARNG for a period of 3 years on 30 January 2008 with entitlement to a $7,500.00 reenlistment bonus.  The form shows the place of enlistment as Contingency Operating Base Adder, Tallil, Iraq.

4.  His NGB Form 600-7-3-R-E, dated and signed 30 January 2008, shows he acknowledged he would receive a tax-free reenlistment bonus payment.  He initialed the contract indicating entitlement for receipt of a total bonus payment in the amount of $7,500.00, less taxes, for a 3-year reenlistment in the ARNG.

5.  Orders 099501, issued by the Camp Shelby Joint Forces Training Center, Camp Shelby, Mississippi, dated 8 April 2008, show his deployment/attachment to the 1st Sustainment Brigade, Taji, Iraq, with a proceeding date of on or about 9 April 2008.

6.  His DD Form 4, Section E (Confirmation of Enlistment or Reenlistment), shows he confirmed and signed his reenlistment on 15 May 2008.  Section 19 (Enlistment/Reenlistment Officer Certification) shows his oath was administered, subscribed, and duly sworn on 30 January 2008.

7.  He provided a 3rd Sustainment Command (Expeditionary) press release, dated 11 November 2008, titled "More than 250 Sustainers reenlist at Joint Base Balad," which shows he was one of the Soldiers who raised his right hand and recited the oath of enlistment on that date.

8.  He was released from active duty to the control of the ARARNG on 1 January 2009.  He was issued a DD Form 214 which shows the following entry in item 18 (Remarks):  "SERVICE IN IRAQ 20080414-20081215."

9.  In an MFR, dated 13 August 2009, an ARARNG Soldier stated that the applicant reenlisted in the ARARNG during his deployment to Iraq and the documents indicate the actual location.  He also stated it was not clear as to what date to use because the applicant was in a stop-loss status and this process was new to him and others in country.  During that time, his knowledge of the use of a DD Form 4 during extension was unclear.

10.  In an MFR, dated 5 December 2009, another Soldier stated the applicant completed his reenlistment after they arrived in theater in order to receive the tax-free bonus.  The service member also stated he did not remember the applicant's case specifically; the documents most likely show the paperwork was begun at Camp Shelby during mobilization and completed after arrival in theater with the May 2008 signature date.

11.  In a statement, dated 9 December 2009, the 39th Brigade Retention NCO stated the applicant requested a 3-year extension in November 2008 in Iraq.  The applicant was to complete the DD Form 4 series and send it to him.  He would enter it in the IMARC and the interactive Personnel Electronic Records Management System.  The applicant did everything he was supposed to do.  He entered the contract in IMARC on 17 November 2008.  He did not have a copy of the contract, so he doesn't know the date on the DD Form 4.  The Army should not punish the Soldier for a wrong date on the DD Form 4; there was nothing the Soldier could do about it.  The enclosed Recruiter Request Status Report, which listed the Soldiers he had waiting for a Bonus Control Number, shows the applicant at the top of page 2.

12.  A screen printout from the IMARC shows he executed a 3-year reenlistment prior to 1 March 2009 beginning on 30 January 2008 for entitlement to a $7,500.00 bonus payment.

13.  In a letter, dated 10 December 2009, the Assistant IG, OIG, OTAG, stated the OIG determined that the dates on the applicant's DD Form 4 for immediate reenlistment in the ARARNG pre-dated the dates of his deployment to Iraq.  Because of that, the Defense Finance and Accounting Service (DFAS) would not reimburse the taxes on the bonus payment.  The Assistant IG also stated that the applicant and others stated the dates on the DD Form 4 were incorrect and the applicant did reenlist while deployed to Iraq.  He advised the applicant that the best course of action for a favorable ruling would be to file a claim with the Army Review Boards Agency.

14.  On 25 August 2010, a staff member of DFAS advised that $2,400.00 was deducted from the applicant's reenlistment bonus because he reenlisted prior to his combat tour for entitlement for tax exemption on the payment.

15.  On 26 August 2010, a staff member of the ARARNG G-1 researched the issue and advised that the applicant's expiration of term of service (ETS) was 29 January 2008.  It appears when he was mobilized, no one paid attention to his ETS date.  The applicant then deployed with the unit on or about 8 April 2008.  He executed a reenlistment contract in Iraq on 15 May 2008.  However, to avoid a break in service, the Retention NCO backdated the contract to 30 January 2008.  The staff member stated the applicant was not at fault.  In an earlier conversation with the Retention NCO, he stated the Retention NCO was new at the time and may have made a mistake.

16.  The Armed Forces Tax Guide, Publication 3, 2007, Combat Zone Exclusion, specified that an enlisted member had to reenlist within the same calendar month in which he/she was still in the combat zone for tax exclusion of bonus payments.

DISCUSSION AND CONCLUSIONS:

1.  An error was made during the preparation of the applicant's reenlistment contract in the ARARNG on 15 May 2008 in Iraq which resulted in his reenlistment bonus being subject to taxes.  He should have been entitled to the combat zone tax exemption.

2.  A staff member of the ARARNG G-1 stated that the applicant had an ETS date of 29 January 2010.  At the time of his deployment with the unit on 8 April 2008, his ETS date was overlooked.  He executed a reenlistment contract on 15 May 2008 with entitlement to a bonus.  The Retention NCO backdated the applicant's reenlistment contract to 30 January 2003 to avoid a break in service.  Through no fault of his own, this action caused the applicant's reenlistment bonus to be taxed.  Due to factors beyond his control, the applicant was denied the tax-exempted bonus payment.

3.  Therefore, in the interest of justice and equity, it is appropriate to correct the applicant's record by extending his original enlistment contract from 30 January 2008 to 14 May 2008, voiding his 30 January 2008 reenlistment, and constructing a new reenlistment contract showing the date of execution as 15 May 2008 with entitlement to the combat zone tax exemption.  In view of the foregoing, he applicant's ARARNG and Department of the Army records should be corrected as recommended below.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all the State of Arkansas Army National Guard and Department of the Army records of the individual concerned be corrected by:

* extending him in the ARNG from 30 January 2008 through 14 May 2008
* voiding his reenlistment contract, dated 30 January 2008
* constructing a new reenlistment contract showing he reenlisted in Iraq on 15 May 2008 with entitlement to the tax-exempted reenlistment bonus
* notifying DFAS of this action for payment of all monies due the applicant as a result of this correction



      ____________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)                                         AR20100007294



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)