IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100019185 


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, cancellation of his indebtedness to the government.

2.  He states he was led to believe that his $15,000 reenlistment bonus would not be recouped at the time he accepted a direct commission and took his oath of office.  

3.  He provides the following:

* Self-authored statement
* Excerpts from Army Regulation 601-210 (Active and Reserve Components Enlistment Program)
* Memorandum, Subject:  Change in Policy Governing Bonus Recoupment, dated 14 August 2008
* Memorandum, Subject:  Implementation Guidance for the Change in Policy Governing Bonus Recoupment, 8 October 2009
* DA Form 71 (Oath of Office - Military Personnel)
* Orders 09-182-00013, dated 1 July 2009
* Orders C-07-912759, dated 9 July 2009
* Memorandum, Subject:  Application for U.S. Army Reserve Appointment [Applicant], dated 1 April 2009
* DA Form 1559 (Inspector General Action Request), dated 19 January 2010
* Enlistment/Reenlistment Documents
* Memorandum, Subject:  Exception to Bonus Recoupment Policy, dated     3 March 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he originally enlisted in the U.S. Army Reserve (USAR) for 8 years on 26 April 2003.  On 29 August 2008, he reenlisted in the USAR for another 6 years.  As an incentive, he received a $15,000.00 enlistment bonus under the Selected Reserve Incentive Program.

2.  His Enlistment/Reenlistment Document states, in pertinent part, that his entitlement to the enlistment bonus would be terminated should any of the following conditions occurred before fulfillment of his enlistment agreement and obligation:  Become an unsatisfactory participant; move to a nonbonus unit or MOS, or if he is reclassified; fail to become MOS qualified in 12 months; be separated from his status as an enlisted Soldier assigned to a unit of the Selected Reserve for any reason except authorized periods; accept a permanent civilian position where membership in the Selected Reserve is a condition of employment; exceed the maximum period authorized for suspension during a period of non availability; and fail to extend his USAR contracted term of service to compensate for a period of nonavailability.

3.  Additionally, his enlistment contract explained that if his entitlement to the enlisted bonus was terminated for any reason listed above, he could be subject to recoupment.  The recoupment amount would be calculated by the total bonus authorized divided by 72 months.  The product would be subtracted from the total amount of bonus paid to him, including initial and subsequent payments.  He would be required to pay the overpayment amount.

4.  On 8 April 2009, he was honorably discharged from the USAR and the following day he was appointed as a second lieutenant in the USAR.  There is no available evidence that shows he received an officer affiliation or accession bonus.

5.  A Memorandum, Subject:  Change in Policy Governing Bonus Recoupment, grants authority to cancel recoupment actions regarding USAR Soldiers in a bonus status who are going into the Active Component, military technician programs, Active Guard Reserve, or officer status.  However, the approval only applied to Soldiers who changed their status on or after 8 April 2005.

6.  A Memorandum, Subject:  Implementation Guidance for the Change in Policy Governing Bonus Recoupment, provided additional implementing instructions for the policy listed above.  The memorandum stated, in pertinent part, that Selected Reserve Soldiers who executed a contract with an effective date of 21 May 2008 or later, who accepted immediate appointment as an officer without affiliations, would have their Army bonuses terminated without recoupment.  However, Soldiers who enter into this status prior to the effective date of their contracts would have their bonuses terminated and subject to recoupment. 
 
7.  An advisory opinion was obtained in the processing of this case.  An official in the Department of the Army, Office of the Deputy Chief of Staff, G-1, Incentives and Budget Branch, Enlisted Accessions Division, recommended that the applicant be granted relief and be permitted to retain any bonus payment made to him prior to being commissioned.  He explained that the applicant reenlisted in the USAR on 29 August 2008 and was appointed as an officer in the USAR on    "8 July" 2009.  He said a USAR policy mandated that termination and recoupment of any enlistment bonuses be implemented if the original bonus contract occurred prior to 21 May 2008.  

8.  Additionally, a determination by the Office of the Secretary of Defense (OSD), issued on 21 May 2008, precluded recoupment from a member enlisting, reenlisting, or being appointed into any branch of the military as long as they received no bonus for the new period of service and the new period of service was equal to or more than the existing period of service.  The official said for current cases such as the applicant's case, the bonus was currently terminated without recoupment upon change of status.  He said an earlier OSD determination on 8 April 2005 gave flexibility in such action and the Army has consistently approved Soldiers who transferred from one status to another to retain any bonus as an exception to policy provided they did not get any bonus for the new period of service.

9.  On 24 January 2010, he was provided a copy of this advisory opinion, but he did not respond.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant's reenlistment occurred on 29 August 2008.  He was then discharged on 8 April 2009 to accept appointment as a second lieutenant in the USAR, after the 21 May 2008 policy change that precluded recoupment from a member appointed into any branch of the military as long as they received no bonus and the new period of service was equal to or more than the existing period of service.  There is no available evidence that shows he received an officer affiliation or accession bonus.

2.  Additionally, G-1 stated that the OSD gave flexibility in such action and the Army has consistently approved Soldiers who transfer from one status to another.  The official said these Soldiers were allowed to retain any bonus as long as they did not get any bonus for the new period of service.  Therefore, in the interest of equity and justice, it would be appropriate to correct his records as indicated below.

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a determination was made that recoupment of his reenlistment bonus was not required when he accepted his USAR officer appointment and refunding any monies recouped based on his appointment as a USAR officer.



      _______ _   _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)                                         AR20100019185





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ABCMR Record of Proceedings (cont)                                         AR20100019185



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