IN THE CASE OF:	  

		BOARD DATE:	    14 July 2011

		DOCKET NUMBER:  AR20110001280 


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 she be paid the $10,000 prior-service enlistment bonus (PSEB) that she was promised in her enlistment contract.

2.  The applicant states, in effect, that she enlisted for a 6-year PSEB; however, after she finished her training she was told she had been improperly authorized a $10,000 bonus.  She was only entitled to a $5,000 bonus, the recruiter made a mistake in writing her contract. 

3.  The applicant provides a copy of her enlistment contract, academic evaluation reports, military occupational specialty (MOS) orders, and a copy of the response to her request for an exception to policy that was submitted to the Reserve Command.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 22 March 2006 for a period of 3 years and 5 months and training as a chemical operations specialist.  She served until she was honorably discharged in the pay grade of E-4 on 10 December 2008 due to parenthood.  She had served 2 years, 8 months, and 19 days of active service.

2.  On 19 December 2009, she enlisted in the U.S. Army Reserve (USAR) for a period of 6 years under the prior-service enlistment option for training in MOS 25U (Signal Support Systems Specialist) and a $10,000 PSEB. 

3.  She attended her active duty training at Fort Gordon, Georgia from 14 June 2010 to 20 July 2010 and was awarded the MOS of 25U1O on 11 August 2010.

4.  A memorandum from Headquarters, USAR Command at Fort McPherson, Georgia indicates the applicant's request to be paid the $10,000 PSEB as an exception to policy was disapproved based on the fact that her MOS was only authorized a $5,000 PSEB.  She was advised that she could accept the $5,000 PSEB and remain in her unit or she could transfer to the Individual Ready Reserve and be subjected to recoupment of the unearned portion of the bonus.

5.  In the processing of this case a staff advisory opinion was obtained from the Officer of the Deputy Chief of Staff, G-1 (Senior Army Reserve Career Counselor) who opines that the guidance counselor looked at the wrong tables when he enlisted the applicant and opines that the applicant should be paid the $10,000 PSEB as indicated in her contract.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board. 

6.  Title 37, U.S. Code, section 308j(b), states, in pertinent part, that the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.  Paragraph (2)(a) states the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction the skills to which the authority under this subsection is to be applied.  Paragraph (2)(b) states a skill may be designated for an Armed Force under paragraph (2)(a) if, to mitigate a current or projected significant shortage of personnel in that Armed Force who are qualified in that skill, it is critical to increase the number of persons accessed into that Armed Force who are qualified in that skill or are to be trained in that skill.  Paragraph (2)(b) states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned.

7.  The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864 (1977), concerning military reenlistment bonuses does not alter fundamental rules of law that (1) a service member's entitlement to military pay is governed by statute rather than ordinary contract principles and (2) in the absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents; hence the amount of any reenlistment bonus payable to a service member depends on applicable statutes and regulations, and in no event can the bonus amount be established through private negotiation or contract between the member and his recruiter.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be paid a PSEB in the amount of $10,000.00 as stipulated in her enlistment contract because she has complied with her part of the contract was carefully considered.

2.  It is recognized that the Army has limited funds to apply to bonuses and they must be applied prudently to maximize the Army's return on its investment by ensuring that only those eligible to receive them do so.  It is also recognized that according to the fundamental rules of law, the Army is not liable for the erroneous actions of its officers, noncommissioned officers, agents, or employees, even though committed in the performance of their duties.  Court cases have ruled that reenlistment bonuses (and, by extension, enlistment bonuses) are governed by statute rather than ordinary contract principles.

3.  However, the facts of the case show the applicant fulfilled her end of the bargain and continues to serve in the USAR.  Therefore, as a matter of equity, relief should be granted in this case by:

   a.  amending her enlistment contract to include the sentence, "If officials processing you for enlistment authorized you a PSEB and it is later discovered that the bonus or a portion of the bonus is not payable for reasons of law or regulation, the Army Board for Correction of Military Records (ABCMR) may pay the bonus or a portion of the bonus, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552"; and

	b.  instructing the Defense Finance and Accounting Service (DFAS) to remit payment of a PSEB in the amount of $10,000.00 to the individual concerned which is the total amount of the bonus to which she would have been entitled had she been eligible for the bonus, in accordance with Title 10, U.S. Code, section 1552.

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:

   a.  amending her enlistment contract to include the sentence, "If officials processing you for enlistment authorized you a PSEB and it is later discovered that the bonus or a portion of the bonus is not payable for reasons of law or regulation, the ABCMR may pay the bonus or a portion of the bonus, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552"; and
   
   b.  instructing DFAS to remit payment of a PSEB in the amount of $10,000.00 ($5,000 of which may be paid out of ABCMR funds) to the individual concerned which is the total amount of the bonus to which she would have been entitled had she been eligible for the bonus, in accordance with Title 10, U.S. Code, section 1552.




      _______ _ 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)                                         AR20110001280



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ABCMR Record of Proceedings (cont)                                         AR20110001280



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