IN THE CASE OF:	  

		BOARD DATE:	    5 January 2012

		DOCKET NUMBER:  AR20110010247 


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, correction of his military records to show he is entitled to receive the enlistment bonus and enrollment in the student loan repayment program (SLRP) as authorized in his enlistment contract.

2.  The applicant states the recruiter who enlisted him represented the U.S. Army Reserve (USAR).  It was presumed he knew the policies and guidelines for enlistment bonuses.  The applicant fulfilled his obligations set forth in the contract and expects to receive the bonus and SLRP.

3.  The applicant provides copies of his enlistment contract, letters from the Officer of the Inspector General (IG), and his Chronological Statement of Retirement Points.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his application, the applicant was a sergeant, pay grade E-5 in the USAR.

3.  The Army National Guard (ARNG) Retirement Points History Statement, dated 2 July 2008 shows that the applicant served a total of 21 years in the ARNG from 7 May 1970 to 25 June 2008.  He had two breaks during this service and was credited with 16 years of qualifying service towards a non-regular retirement.

4.  The Reserves Annex of the applicant's enlistment contract, dated and signed on 22 August 2008, states he enlisted for:

* a prior service enlistment bonus (PSEB) of $15,000 - 6 years
* the Student Loan Repayment Program $10,000 - Prior Service

5.  In a letter, dated 1 March 2010, as provided by the applicant, the IG, Western Medical Area Readiness Support Group, stated that an IG investigation found:

	a.  The applicant enlisted for a Selected Reserve Incentive Program which included a cash bonus, student loan repayment, and the Montgomery GI Bill.

	b.  The applicant's contract was completed by the Arizona Regional Recruiting/Retention Office.

	c.  The applicant was subsequently denied payment of the bonus because he exceeded the years of service provision stating that a Soldier could not have more than 10 years of service to receive such bonus.  The applicant had
16 years of creditable service.

	d.  The recruiter also signed the applicant for a 6-year enlistment when he was 57 years of age and only 3 years away from his mandatory removal date (MRD) at age 60.  The IG determined that it was very unlikely the recruiter did not know about these factors.

	e.  The IG determined the applicant entered into his enlistment in good faith and willingness to serve.  The invalid contract has resulted in the applicant's disappointment and loss of faith in the Army.

	f.  A letter reporting the applicant's enlistment irregularity and its negative impact was forwarded to the IG, U.S. Army Recruiting Command.
	g.  The applicant would be submitting a request for an exception to policy to obtain the enlistment bonus, student loan repayment, and an MRD extension to serve beyond age 60 as promised in his enlistment contract.

	h.  The IG further stated it would be in the best interest of the morale, discipline, and efficiency of the U.S. Army to approve the applicant's requests.

6.  In the processing of this application, an advisory opinion was obtained from the Senior Army Reserve Career Counselor, Office of the Deputy Chief of Staff, G1 (Personnel Officer), Washington, DC.

	a.  The opinion stated that after a careful review, at the time of enlistment into the USAR, the applicant was 57 years and 1 month old and he had over 16 years of service.  Accordingly, he should not have been given a 6-year contract or a bonus.

	b.  However, these mistakes were not the fault of the applicant.  The expert guidance counselor is to blame for this fraudulent contract.  Therefore, the bonus should be paid.

7.  The opinion contained a memorandum, dated 26 May 2011, from the Deputy Chief of Staff, G1, USAR, Fort McPherson, Georgia, approving the applicant's request for retention beyond age 60.

8.  On 21 September 2011, the applicant concurred via email with the advisory opinion.

9.  The SLRP provides for the repayment by the Government of a designated portion of any outstanding student loan(s) secured after 1 October 1975.  The loan amount to be repaid is 15 percent of the original balance of the loan plus accrued interest not paid by the Department of Education, or $500.00 plus the accrued interest not paid by the Department of the Education, whichever is greater.  Payments will be made for each year of satisfactory service in the Selected Reserve.  The maximum amount of loans against which the 15 percent is computed will not exceed $10,000.  This equates to a maximum annual repayment of $1,500 plus interest.  If the amount set for repayment is less than $500.00, then $500.00 becomes the calculated amount for repayment that year.

10.  To be eligible for the SLRP incentive, a person must complete DA Form 5261-4-R (Student Loan Repayment Program Addendum) to contractually obligate himself or herself to serve satisfactorily and must serve in a reserve unit for a full term of the contractual agreement and must further obligate himself or herself to continue to serve in the same component and the same MOS unless excused for the convenience of the Government.  Entitlement to the SLRP will stop if the Soldier is separated from the Selected Reserve.  Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan which is at least a year old may then be paid in accordance with the terms of this educational enlistment incentive.

11.  Army Regulation 135-7 (Incentive Programs), in pertinent part, restricts the SLRP to those Reservists who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOSs and units, which is updated every 6 months.  This educational incentive may only be elected at the time of enlistment or reenlistment.  This incentive pays a limited 
sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility by being separated from his or her unit.

12.  The Government will not make any payments to the Soldier or reimburse a Soldier if he or she pays off a student loan.  The Government will only pay the lending institution.

13.  Title 37 Chapter 5, Subchapter I, section 308i pertains to Special Pay: Prior Service Enlistment Bonus.  It provides that 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 three or six years in a critical military skill designated for such a bonus by the Secretary concerned and who meets the requirements below may be paid a bonus not to exceed $15,000 for a 6-year enlistment.

	a.  The person has no more than 16 years of total military service and received an honorable discharge at the conclusion of all prior periods of service.

	b.  The person was not released, or is not being released, from active service for the purpose of enlistment in a reserve component.

	c.  The person is projected to occupy, or is occupying, a position as a member of the Selected Reserve in a specialty in which the person successfully served while a member on active duty and attained a level of qualification while on active duty commensurate with the grade and years of service of the member; or

	d.  the person has completed training or retraining in the specialty skill that is designated as critically short and attained a level of qualification in the specialty skill that is commensurate with the grade and years of service of the member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he is entitled to receive the enlistment bonus and entitlement to the student loan repayment program as authorized in his enlistment contract.

2.  The available evidence clearly shows the applicant should not have been given a 6-year reenlistment contract or a bonus.  These errors were the fault of the expert guidance counselor.

3.  Notwithstanding the advisory opinion, the applicant does not appear to be eligible for the reenlistment bonus because his 21 years of service exceeded the statutory limit of 16 years.  Therefore, this portion of his application should be denied.

4.  The applicant's enlistment contract shows he opted for the SLRP incentive.  However, there is no subsequent evidence showing that this incentive has been denied to him, or if so, for what reason.  This issue was not mentioned in the advisory opinion, or discussed at any length by the applicant.  Without substantiating documentary evidence, a determination cannot be made regarding the status of his SLRP.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20110010247



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ABCMR Record of Proceedings (cont)                                         AR20110010247



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