IN THE CASE OF:  

		BOARD DATE:  7 April 2015	  

		DOCKET NUMBER:  AR20140013472 


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 correction of his records to show he is entitled to the Selective Reenlistment Bonus (SRB) in the amount of $20,000.

2.  The applicant states:

	a.  His record contains an altered DA Form 4789 (Statement of Entitlement to SRB) which caused him to be paid an incorrect payment for the SRB.  His record also contains an altered DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States).  The altered DD Form 4 and DA Form 4789, both dated 17 August 2005, should be removed from his records and replaced with the original forms.  He made several attempts to correct the issue in 2005 when he first discovered his contract was altered.  He inquired about the altered contact and asked it to be changed but his command told him to wait and see if the whole bonus was paid before any corrections were requested.

	b.  Based on the military personnel (MILPER) message and original contract, he should have received a $20,000 bonus.  Due to the altered contract, he received only $12,115.60 between September 2005 and August 2009.  He then realized nothing was being done so he asked the 96th Regional Readiness Command (RRC) Inspector General (IG) for assistance and he was informed the U.S. Army Human Resources Command (HRC) would make the corrections.  He made several attempts to contact someone at HRC to follow up on receiving the rest of his bonus but he didn't have any success.

	c.  On 19 September 2013, he was given a point of contact at the HRC IG office, Ms. CS, and she agreed he was still owed the rest of the bonus.  She pursued it with the Defense Finance and Accounting Service (DFAS) for several months but had no success.  In May 2014, she requested support and guidance from the Department of the Army (DA), G-1, Sergeant Major and he concurred with her findings.  However, DFAS still insisted he was not owed the rest of the bonus because they had to go by the contract that was in his records.

3.  The applicant provides:

* two DD Forms 4
* two DA Forms 4789
* MILPER Message 04-353 (Implementation of SRB for U.S. Army Reserve (USAR) AGR Soldiers)
* Orders R-8-578399, dated 24 August 2005
* DA Form 3340-R (Request for Reenlistment or Extensions in the Regular Army (RA)), dated 17 August 2005
* Reenlistment Control Number (RCN) Worksheet, dated 11 July 2005
* DA Form 1559 (IG Action Request), dated 19 September 2013
* eight pages of email, dated between 19 May and 3 July 2014
* Eligibility Bonus Work Sheet for Active Guard/Reserve (AGR) for Indefinite, undated
* self-authored Memorandum for Record, undated

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.  The applicant enlisted in the U. S. Army Reserve (USAR) on 12 March 1994.  He served on active duty for training (ADT) from 6 July to 22 November 1994 (4 months and 17 days).  On 16 January 1996, he was honorably released from the USAR.
3.  On 17 January 1996, he enlisted in the RA.  He was honorably released from active duty on 16 January 1999 and he was transferred to the USAR Control Group.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he had a total of 3 years, 4 months, and 17 days of active duty service and 1 year, 5 months, and 19 days of inactive service.  His Reserve obligation termination date was 11 March 2002.

4.  He was subsequently assigned to the USAR, 4211th U.S. Army Hospital (USAH), San Diego, CA.  On 9 March 2003, he extended his enlistment in the USAR; his new expiration of term of service (ETS) was 10 March 2003.  He subsequently extended his enlistment in the USAR for 12 months and his ETS was adjusted to 10 March 2004.

5.  On 28 August 2003, he entered the USAR AGR program and extended his enlistment for a period of 2 years, 5 months, and 13 days.  His ETS was adjusted to 23 August 2006.  On 19 March 2004, he was promoted to the rank/grade of sergeant/E-5 and he held military occupational specialty (MOS) 42A (Human Resources Specialist).  On 1 November 2004, he was promoted to the rank/grade of staff sergeant (SSG)/E-6.

6.  As of 16 August 2005, the applicant had been on active duty as a member of the USAR AGR for 1 year, 11 months, and 17 days and had a total of 5 years, 4 months, and 4 days of active duty service.

7.  He provides an Eligibility Bonus Work Sheet for AGR Bonus for Indefinite, undated, wherein it shows his adjusted basic active service date (BASD) was 30 August 2000, his ETS date had been 23 August 2006, he would reach 18 years of service on 30 August 2018, and the total time he would be paid the SRB was for 12 years and 7 days of service (date of 18 years of service minus reenlistment date, and minus prior obligated time).  In Fiscal Year 2005, the Army monthly basic pay for a SSG with less than 6 years of service was $2,296.50 and with more than 6 years of service but less than 8 years was $2,391.00

8.  On 17 August 2005, he reenlisted in the USAR AGR program in the rank of SSG and MOS 42A.  He provides and his record contains DA Form 4789, dated 17 August 2005, wherein it stated the applicant understood that he was getting an SRB in return for his reenlistment/extension for a period of "indefinite."  He agreed to complete 0 months and 12 years of service (emphasis added).  The top of this form has the word "Original" written on both the copy the applicant provided and the copy in his record.

9.  The applicant also provides and his record contains DA Form 4789, dated 17 August 2005, wherein it stated the applicant understood that he was getting a SRB in return for his reenlistment/extension for a period of "indefinite."  He agreed to complete 8 months and 4 years of service.  This form appears to have the 8 months and 4 years handwritten over the previously typed entries of 0 months and 12 years of service.  The top of this form has the word "Altered" written on the copy the applicant provided and no additional entry on top of the copy in his record.

10.  His record also contains two DD Forms 4, each dated 17 August 2005; however, both copies of the form appear to be alike.

11.  The applicant is currently serving on active duty as a member of the USAR AGR in the rank/grade of sergeant first class (SFC)/E-7 in MOS 42A.

12.  In the processing of this case an advisory opinion was received on 19 February 2015 from the Senior Career Counselor, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended approval of the applicant's request and opined, in part, that:

	a.  The applicant was fully eligible to reenlist and receive incentives as published in MILPER Message 04-353 and Army Regulation 140-111 (USAR Reenlistment Program).  The command and career counselor prepared documents per published messages and guidance from DA G-1 and HRC for the time period of the execution of his documents.  There were no faults at the unit’s, career counselor’s, or applicant's level in the preparation of his original service agreement documents.

	b.  The applicant's original documents were altered after the execution of the agreement without his knowledge.  The alerted incentive documents changed the total incentive dollar amount payable to him.  MILPER Message 04-353, dated 29 December 2004, explains the payment calculations and maximums as the contract was prepared.  Department of Defense Instruction (DODI) 1304.29 (Administration of Enlistment Bonuses, Accession Bonuses for New Officers in Critical Skills, SRB, and Critical Skills Retention Bonuses for Active Members), dated 15 December 2004, does not allow a payment calculation above the 6 years.  This is clearly stated in MILPER messages after November 2005.  However, the applicant reenlisted and his incentive was originally calculated and documented prior to the corrected DA G-1 published policies and guidance.

13.  On 24 February 2015, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments; however, no response was received.


14.  MILPER Message 04-353, dated 29 December 2004, in part:

	a.  Soldiers may be paid bonuses up to 15 times their monthly basic pay at discharge, times the number of years of additional obligated service, or $20,000 for 6 years/$10,000 for 3 years, whichever is less.  The SRB was authorized for use by the USAR for AGR Soldiers in MOS 42A with a multiplier of 1 effective 1 January through 31 December 2005.

	b.  To be eligible for a Zone A SRB a Soldier must have completed at least 17 months of continuous active duty but no more that 6 years of active service including ADT.  The total amount of the bonus will be computed as follows: the monthly basic pay (at the time of discharge or release from active duty), multiplied by the years or fractions of a years of additional obligated service, multiplied by the SRB multiplier, equals the total SRB (not to exceed $20,000).  A 50 percent (%) payment of SRB would be paid upon reenlistment and the remaining 50% would be paid in equal annual installments each anniversary of the reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows at the time of the applicant's reenlistment as a USAR AGR on 17 August 2005 he agreed to serve for an indefinite period and a minimum of 12 years for the SRB.  Based on his rank and BASD at the time, he would have been entitled to the SRB in the amount of $20,000.  The advisory official confirmed that although later MILPER messages noted limitations on the amount of the SRB authorized, at the time of his reenlistment on 17 August 2005 the MILPER message in effect at that time authorized him an SRB of $20,000.

2.  Although the DA Form 4789, dated 17 August 2005, is filed in his record, as verified by the advisory official, the form was subsequently altered to show he was reenlisted on that date for 8 months and 4 years vice 12 years which reduced the amount of the SRB he was entitled to.  This altered form is also filed in his record.  

3.  It is unclear why his DA Form 4789 was altered.  What is clear is that the applicant acted in good faith, fulfilled all the requirements of his contract, and continues to do so.  He should not be penalized for an error committed by an unknown party and should be entitled to receive payment of a $20,000 SRB as specified in MILPER Message 04-353.  In view of the foregoing, his 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 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 

* removing from his records the DA Form 4789, dated 17 August 2005, that shows he was reenlisting for 8 months and 4 years
* showing he is eligible for payment of the SRB in the amount of $20,000
* paying him the SRB of $20,000, less taxes, in accordance with MILPER Message 04-353, dated 29 December 2004



      ____________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)                                         AR20140013472





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ABCMR Record of Proceedings (cont)                                         AR20140013472



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