IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100007380 


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 his reenlistment bonus.

2.  He states his contract states he will be paid a reenlistment bonus.  He reenlisted in the U.S. Army Reserve (USAR) on 12 December 2008 and he was advised he was eligible for a $15,000.00 reenlistment bonus.  The bonus was to be paid to him after he was MOS (military occupational specialty) qualified.  After he was MOS qualified, his unit administrator submitted paperwork to the Defense Finance and Accounting Service (DFAS).  DFAS advised he was not eligible for the bonus because he had received a general discharge in 1998.  He was then instructed by his unit administrator to call his recruiter, which he did.  The recruiter advised since there was a large gap in his service time he was eligible for the bonus.  He was instructed to go through his chain of command for assistance.  He has been informed by everybody he has talked with that if it states in his contract he will be paid a $15,000.00 bonus, they all agree he is entitled to it.

3.  He provides copies of the following:

* his DD Forms 4/1 and 4/2 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* pages 2, 8, and 9 of his USAR Annex forms
* his USAR Application Data Report



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the USAR on 4 December 1984, for 8 years.  He enlisted in the Regular Army on 15 October 1985 for 2 years.  He was honorably released from active duty on 14 October 1987, at the expiration of his term of service, and transferred to the USAR.

2.  He reenlisted in the USAR on 29 December 1995 for 1 year and on 9 February 1997 for 6 years.

3.  On 13 September 1997, his unit commander initiated a flagging action against him.  A DA Form 5248-R (Report of Unfavorable Information for Security Determination) shows that based on a urinalysis testing conducted on 19 July 1997, he tested positive for methamphetamine.  Item 11c (Commander's Recommendation) indicated he was being recommended for separation processing under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel), chapter 7 (Misconduct), paragraph 7-11c.1, by reason of commission of a serious offense - abuse of illegal drugs.

4.  He was subsequently discharged from the USAR under the provisions of Army Regulation 135-178 in pay grade E-4 on 29 June 1998 with a general discharge.

5.  He again enlisted in the USAR on 12 December 2008 for 6 years with a $15,000.00 enlistment bonus.  His record contains a USAR Prior Service Enlistment Bonus Addendum, dated 12 December 2009, wherein the applicant acknowledged that he met the listed eligibility criteria.  The listing includes "receipt of an honorable discharge issued on separation from prior military service."

6.  During the processing of this case, on 18 June 2010, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1.  The advisory official stated that based on the applicant’s submission and available records, he previously served in the military and he was separated with a general discharge.  The statute
(Title 37, U.S. Code, section 308i) and resulting policies (Department of Defense Instruction (DODI) 1205-21, paragraph E4.1.1.2 (September 1999)) governing the Prior Service Enlistment Bonus mandated the person must have received an honorable discharge at the conclusion of all prior periods of service.  A general discharge “under honorable conditions” does not fit the definition of an “honorable” discharge.  As a result the applicant was not eligible for the bonus.  He recommended the applicant’s case be denied.

7.  On 18 June 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his rebuttal, dated 13 July 2010, he stated he is having a hard time differentiating between an honorable and a general discharge.  He fulfilled his obligation of the contract to receive his bonus by getting MOS qualified.  Then he learned he was not eligible because of a mistake on the contract.  He was going to use the money to buy his mother a new stove, start a college fund for his son, and buy a better vehicle for himself.  He hopes the Board understands his position and will rule in his favor.  If they don’t, he will remain a U.S. Army Soldier because it was the Army that taught him about honor, integrity, discipline, courage, and selfless service.

8.  Army Regulation 135-178, then in effect, established the policies and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard and USAR.  

9.  Army Regulation 135-178, paragraph 2-9a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 135-178, paragraph 2-9b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  Title 37, U.S. Code, section 308i (Special pay: prior service enlistment bonus), states a person who is a former enlisted member of an armed force who enlists in the Selected Reserve of the Ready Reserve of an armed force for a period of 3 or 6 years in a critical military skill designated for such a bonus by the Secretary concerned may be paid a bonus.  A bonus may only be paid under this section to a person who meets each of several listed requirements which include the person having no more than 16 years of total military service and having received an honorable discharge at the conclusion of all prior periods of service (emphasis added).

12.  DoDI 1205.21, Subject:  Reserve Component Incentive Program Procedures, paragraph E4.1 (Written Agreement - Prior Service Enlistment 

Bonus), dated 20 September 1999, specifies, in pertinent part, that in connection with an enlistment the service member must acknowledge they meet the listed eligibility criteria which include having received an honorable discharge at the conclusion of active military service.

13.  Title 10, U.S. Code, section 101(d)(3) defines "active service" as service on active duty or full-time National Guard duty.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to payment of the reenlistment bonus.  He has not shown error, injustice, or inequity meriting the relief he now requests.

2.  His contentions have been reviewed; however, the evidence shows he reenlisted in the USAR on 9 February 1997 with prior active duty and USAR service.  He was discharged from the USAR on 29 June 1998 under the provisions of Army Regulation 135-178 with a general discharge.  

3.  On 12 December 2008, he reenlisted in the USAR with a $15,000.00 reenlistment bonus.   

4.  Although DoDI 1205.21 states an honorable discharge at the conclusion of active military service is required for entitlement to a bonus, the language in the DoDI is contrary to the language of the law.  The law requires a Soldier to have received an honorable discharge at the conclusion of all prior periods of service for entitlement to a bonus.  

5.  The language of the applicant's USAR Prior Service Enlistment Bonus Addendum more closely aligns with the language of the law -- an honorable discharge issued on separation from prior military service.  The applicant had two periods of prior military service from which he was separated, and during one of those periods he was not separated with an honorable discharge.  Therefore, the applicant erroneously acknowledged that he met all the eligibility criteria for the bonus.

6.  Based on his receipt of a general discharge in June 1998, he did not meet the eligibility criteria for a reenlistment bonus in December 2008.  Therefore, the action taken by DFAS appears to be proper and he has not shown otherwise.


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)                                         AR20100007380



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100007380



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1