IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140015578 


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, retroactive payment of a $10,000.00 tax-free reenlistment bonus (RB), plus appropriate interest.

2.  The applicant states, in effect, that he defers to his counsel.

3.  The applicant provides no documentary evidence in support of his application; he defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, retroactive payment of a $10,000.00 tax-free RB to the applicant, plus appropriate interest.  

2.  Counsel states the applicant never received a RB for serving a second tour of duty in the Republic of Vietnam (RVN) from November 1970 to November 1971.  

   a.  The applicant is an honorably discharged veteran who served with distinction.  He was completely unaware of the existence of the RB policy until he spoke with an Army veteran on or about 27 September 2011.

   b.  In November 2011, in response to an inquiry about the RB on behalf of the applicant, the Defense Finance and Accounting Service (DFAS) advised that his claim is barred from consideration by the provisions of the Barring Act of 1940.

   c.  Counsel opines that the provisions of this statute should not apply until a claimant has actual knowledge of the existence of his potential claim.  He states that over a period of approximately 2 years, the applicant and his previous counsel were able to obtain copies of his military service records to document a claim.  However, his previous counsel had to withdraw from representing the applicant.  (Counsel is representing the applicant in a pro bono status.)  He adds that these factors caused an approximate 3-year delay in submitting his claim.

3.  Counsel provides copies of the following documents in support of the request:

* DFAS letter, dated 1 November 2011
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 4 (Enlistment Contract – Armed Forces of the United States) with addenda and orders
* Applicant's Military Service Narrative
* Applicant's letter to a U.S. Congressman, dated 12 October 2011
* DFAS letter, dated 26 March 2014
* Memorandum for Record (MFR), dated 9 July 2014
* Letter of recommendation, dated 18 July 2014
* Letter of recommendation, dated 10 July 2014

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.  A DD Form 4 (with addendum and orders) shows the applicant enlisted in the Regular Army (RA) on 15 September 1966 for a period of 3 years with an enlistment option for training in Army Career Group 91 (Medical Care and Treatment).  Subsequent to his enlistment the applicant:

* was awarded military occupational specialty (MOS) 91B (Medical Specialist)
* served in the RVN from 1 September 1967 through 26 August 1968
* was promoted to specialist five/pay grade E-5 on 23 April 1968
* was absent without leave from 20 January 1969 through 25 January 1969

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 20 September 1969 to reenlist in the RA.

   a.  He had completed 3 years of net active service during this period.

   b.  Item 30 (Remarks) shows, in pertinent part, "Last paid reenlistment bonus: None.  Total amount of bonus received on or subsequent to 1 October 1949:  None."

4.  A DD Form 4 (with addenda and orders) shows the applicant reenlisted in the RA on 21 September 1969 for a period of 3 years with a reenlistment option for his present duty assignment.  The orders that were issued (Headquarters, 
U.S. Army Training Center, Infantry, Fort Ord, CA, Special Orders Number 263, paragraph 101, dated 20 September 1969), show, in pertinent part, the applicant reenlisted on 21 September 1969 for a period of 3 years and "VRB [Variable Reenlistment Bonus] designator:  VRB #1."

5.  A DD Form 214 shows the applicant was honorably discharged on 17 August 1970 to reenlist in the RA.

   a.  He had completed 10 months and 26 days of net active service during this period.

   b.  Item 30 shows, in pertinent part, "Last paid reenlistment bonus:  1st.  Total amount of bonus received on or subsequent to 1 October 1949:  $941.40."

6.  A DD Form 4 (with addenda and orders) shows the applicant reenlisted in the RA on 18 August 1970 for a period of 4 years with an overseas area reenlistment option.

   a.  The orders that were issued (Headquarters, U.S. Army Training Center, Infantry, Fort Ord, CA, Special Orders Number 230, paragraph 37, dated
18 August 1970), show, in pertinent part, the applicant reenlisted on 18 August 1970 for a period of 4 years and Army Regulation 601-280 (Personnel Procurement – Army Reenlistment Program), Table 6-6 (Overseas Area Enlisted Option) with assignment to the 1st Cavalry Division, U.S. Army Vietnam.  The orders also show "VRB designator:  NA [Not Applicable]."


   b.  The applicant:

* served in the RVN from 7 November 1970 through 8 November 1971:

* in duty MOS (DMOS) 91B2O (Field Medic) with Headquarters and Headquarters Company (HHC), 2nd Battalion, 7th Cavalry, 
1st Cavalry Division (Airmobile), from 17 November 1970 through 26 March 1971
* in DMOS 91B2O (Field Medic and Senior Medical Aidman) with HHC, 1st Battalion, 7th Cavalry, 1st Cavalry Division (Airmobile), from 27 March 1971 through 5 November 1971

* was promoted to specialist six/pay grade E-6 on 1 October 1971
* was awarded MOS 91C (Clinical Specialist) on 12 April 1973

7.  A DD Form 214 shows the applicant was honorably discharged on 16 August 1974 based on completion of required active service.  He had completed 3 years, 
11 months, and 29 days of net active service during this period that included 
1 year and 1 day of foreign service.  It shows he completed 3 years, 10 months, and 26 days of prior active service and 7 years, 10 months, and 25 days of total active service.  It also shows in:

* item 19 (Indochina or Korea Service Since August 5, 1964):

* 1 September 1967 through 26 August 1968
* 7 November 1970 through 8 November 1971

* item 27 (Remarks), in pertinent part, "Last Foreign Service Tour:  RVN"

8.  In support of the application counsel provides the following documents.

   a.  DFAS, Indianapolis, IN, letter, dated 1 November 2011, to the Honorable K____ M____, U.S. House of Representatives, in response to an inquiry on behalf of the applicant pertaining to payment of an incentive bonus.  The Deputy Director, Operations, advised that the applicant's claim is barred from consideration by the provisions of the Barring Act of 1940.

   b.  Military Service Narrative constructed by the applicant that provides details of his service in the U.S. Army from 15 September 1966 through 16 August 1974.  
A review shows that it makes reference to his reenlistment in "August 1970."  It does not make any reference to his reenlistment on 21 September 1969 nor does it provide any information pertaining to the receipt of any bonuses.


   c.  A letter from the applicant to the Honorable K____ M____, dated
12 October 2011.  The applicant explained that he had two conversations with a combat veteran who provided him information about a $10,000.00 bonus.  He wrote:  "Incentive:  A tax free $10,000.00 bonus payable over and above his reenlistment bonus being paid to any Viet Nam combat MOS veteran who would return to RVN."  The applicant noted that he reenlisted for a second tour of duty in RVN with the 1st Cavalry Division.  He acknowledged that his MOS (91B2O) was "non-combatant."  He added, "[h]owever, the fact that we Medics WERE trained for and freely utilized in combat situations is aptly demonstrated by the fact that something like 1,400 names on "The Wall" are those of U.S. Medics and U.S. Navy Hospitalmen killed in action while serving with Army and Marine infantry."  He asked for assistance in receiving the bonus.

   d.  DFAS, Indianapolis, IN, letter, dated 26 March 2014, to the Honorable T____ C____, U.S. Senate, in response to an inquiry on behalf of the applicant pertaining to his second request for military pay records.  The Deputy Director, Operations, explained an error was initially made in searching the wrong Records Holding Facility.  However, the pay records were located and forwarded with the correspondence.

   e.  Military pay records spanning the period 15 September 1966 to December 1974 pertaining to the applicant that show, in pertinent part:

* Military Pay Voucher, Voucher Number 603451 (September 1969) –
his term of reenlistment was 36 months, he was paid a taxable RB of $941.40, and it was the first RB due the applicant
* Military Pay Voucher, Voucher Number 602253 (August 1970) –
his term of reenlistment was 48 months and he was paid a taxable RB of $948.00 based on recoupment for 2 years, 1 month, and 3 days

   f.  MFR authored by Colonel R____ M. C____, U.S. Army (Retired), dated 
9 July 2014.  He states he was a platoon leader and then executive officer while the applicant was assigned as the senior aidman (medic) in Company A,
2nd Battalion, 7th Cavalry (from November 1970 through March 1971).  He notes that the applicant was on his second tour in Vietnam and his performance of duty was outstanding.

   g.  Letter of recommendation authored by Brigadier General K____ P. B____, U.S. Army (Retired), dated 18 July 2014.  He states he was the company commander while the applicant was assigned as the senior medic in Company A, 2nd Battalion, 7th Cavalry (from November 1970 until March 1971).  He notes the applicant directly supervised the four platoon medics attached to the company and he routinely exposed himself to enemy fire during fire fights.  He adds the applicant reenlisted and was there for the Soldiers when his medical skills were most needed.

   h.  Letter of recommendation authored by Lieutenant General D____ H. V____, U.S. Army (Retired), dated 10 July 2014.  He states he was the battalion commander while the applicant was assigned as the senior medic in Company A, 2nd Battalion, 7th Cavalry (from November 1970 through March 1971).  He attests to the applicant's honorable service and excellent character.

9.  Army Regulation 601-280, in effect at the time, prescribed eligibility criteria governing the immediate reenlistment in the RA of persons currently serving on active duty with the Army.  Chapter 6 (Reenlistment Options), Section II (Basic Reenlistment Option Tables), shows, in pertinent part, in:

* Table 6-1 (Basic), Line 4 (Information to Applicants), that individuals who take short discharges subsequent to a reenlistment for which RB (and VRB) was paid are subject for prorated recoupment or nonpayment of bonus (and VRB)

* Table 6-6 (Oversea Area Reenlistment Option):

* Line 2 (Description of Option), promises to qualified applicants, initial duty assignment to one of the specified oversea areas of choice (and includes RVN)
* Line 5 (Information to Applicants):

* Applicants reenlisting for assignment to Vietnam are authorized discharge for the convenience of the Government under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the purpose of immediate reenlistment for assignment to Vietnam
* Applicant reenlisting for assignment to Vietnam which will result in a second or subsequent tour may reenlist for a commitment to a specific unit of assignment under the provisions of Army Regulation 614-30 ( Overseas Service)

* Line 9 (Record Entries and Orders):  Orders – reenlistment orders will specify applicant is an enlistee for the Overseas Area Reenlistment Option under the provisions of Table 6-6

10.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the applicant's records should be corrected to show authorization and payment of a $10,000.00 tax-free bonus, plus appropriate interest, because the applicant reenlisted for and completed a second tour of duty in the RVN.

2.  Records show the applicant reenlisted in the RA on 21 September 1969 for a period of 3 years for his present duty assignment, he was authorized a taxable VRB, and he received payment in the amount of $941.40.

   a.  Records also show he was discharged on 17 August 1970 to reenlist.  He completed only 10 months and 26 days of his 3-year reenlistment obligation.

   b.  The evidence of record shows that Soldiers who take short discharges subsequent to a reenlistment for which a VRB was paid are subject to prorated recoupment or nonpayment of bonus.

   c.  The evidence of record shows the applicant was subject to prorated recoupment of the VRB he was authorized due to failing to complete 2 years, 
1 month, and 3 days of his 3-year reenlistment obligation.

3.  Records show the applicant reenlisted in the RA on 18 August 1970 for a period of 4 years for a second tour in the RVN.

   a.  The evidence of record shows the applicant served a second tour in the RVN (from 7 November 1970 through 6 November 1971).  The evidence of record also shows he served in combat support MOS 91B.

   b.  There is no evidence of record that shows the applicant was eligible for or authorized a taxable or non-taxable bonus in the amount of $10,000.00.

   c.  The evidence that the applicant and his counsel offer (i.e., an account of a conversation with an Army veteran concerning a tax-free $10,000.00 bonus payable over and above his reenlistment bonus to any combat MOS Soldier who reenlists for a second tour in Vietnam) is noted.  However, this anecdotal evidence offers insufficient evidence to support a claim to a bonus.
4.  During this review the important public policy considerations behind statutes of limitations (31 USC 3702) were not an issue.  However, the essential issue is that the evidence of record does not support a claim to a tax-free $10,000.00 bonus.

5.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the requested relief.

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)                                         AR20140015578



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ABCMR Record of Proceedings (cont)                                         AR20140015578



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