RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 February
      DOCKET NUMBER:  AR20050007607


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redman             |     |Member               |
|     |Mr. David K. Hassenritter         |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be allowed to be immediately discharged
for the purpose of reenlistment and that his reenlistment be made effective
immediately (his application is dated 16 March 2005) so he may receive the
Selective Reenlistment Bonus (SRB) for his military occupational specialty
(MOS).

2.  The applicant states he had less than 10 years of active Federal
service at the time of his reenlistment.  He reenlisted for an indefinite
period.  Military Personnel (MILPER) message 04-353 states Soldiers in an
Active Guard Reserve (AGR) status can reenlist anytime during their
contract period.  There is no window.  He was forced to reenlist
indefinitely.  He is a Retention Noncommissioned Officer (NCO) who is
committed to taking care of Soldiers.

3.  The applicant states he provides a 26 January 2005 message, Subject:
Clarification for Implementation of Selective Reenlistment Bonus (SRB) for
AGRs; however, no message was attached to the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 20 June 1978 to 19 June
1981, when he was transferred to the U. S. Army Reserve (USAR).  On 20
March 1984, he reenlisted in the USAR for 6 years.  He reenlisted again on
10 February 1990 for 3 years.  He reenlisted again on 19 September 1992 for
6 years.  He reenlisted again on 12 July 1998 for 6 years, making his
expiration term of service (ETS) 11 July 2004.  He was ordered to active
duty in an AGR status on or about 3 November 1999.

2.  On 8 June 2004, the applicant reenlisted for an indefinite period.  At
that time, he had 8 years, 4 months, and 10 days of total active military
service and          17 years, 10 months, and 7 days of total inactive
military service.

3.  In the processing of this case, an advisory opinion was obtained from
the Army Reserve Active Duty Management Directorate, U. S. Army Human
Resources Command – St. Louis, MO.  That office recommended disapproval of
the applicant's request.  That office cited a memorandum from the Office of
The Staff Judge Advocate General (OTJAG), dated 4 January 2005, Subject:
Legal Opinion Concerning a Request to Retroactively Apply the Army National
Guard (ARNG) National Defense Authorization Act (NDAA) Fiscal Year 2005
Expanded
Bonus Authority Implementation Plan for 1 January 2005 through 31 March
2005 (Incentive Program).  OTJAG had opined that there is no authority that
permits a Soldier to be discharged from the AGR program for the sole
purpose of reenlisting to receive the SRB.  OTJAG also noted the Army may
not pay bonuses retroactively absent a specific statutory grant of
authority.  The Army Reserve Active Duty Management Directorate noted that
the applicant's reenlistment contract cannot be revoked because it is not
erroneous.

4.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

5.  The Army Reserve Active Duty Management Directorate forwarded a copy
of MILPER message 04-353 to the Board analyst.  They did not have a copy
of/did not know of the 26 January 2005 message the applicant referred to.
  They forwarded a copy of two other messages:  a 22 November 2005 message,
Subject:  Change in Reenlistment Policy for the Army Reserve and a
       29 November 2005 message, Subject:  Clarification to Implementation
of SRB for USAR Active Guard Reserve (AGR) Soldiers.

6.  MILPER message 04-353, issued on 29 December 2004, announced
implementation of a SRB for certain eligible USAR AGR Soldiers including
those holding MOSs 79R (Recruiter) and 79V (Retention and Transition NCO,
USAR) in the ranks of Sergeant through Sergeant First Class who have
between          17 months and 16 years of active service at the time of
reenlistment.  The SRB was authorized for USAR AGR Soldiers in specified
ranks and MOSs effective    1 January 2005 through 31 December 2005 or
until changed by future MILPER messages.

7.  The 22 November 2005 message stated the reenlistment period of
eligibility for a Selected Reserve incentive under the provisions of Army
Regulation 135-7 was expanded to within 12 months prior to the expiration
date of the current USAR service agreement (ETS); the USAR no longer
executes immediate reenlistments; the date of reenlistment is the date the
oath of reenlistment is administered; and the date the reenlistment takes
effect is the day following the expiration date of the current USAR service
agreement.

8.  The 29 November 2005 message restated that the window to reenlist for
the SRB is now 12 months from ETS.  The message also stated that Soldiers
must have 14 years or less of active service to be eligible for the SRB and
that there were now four zones of SRB eligibility.

9.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program),
chapter 2 states all USAR enlisted Soldiers are required to enlist for an
indefinite term unless exempted elsewhere in this regulation or other
regulations.  AGR Soldiers in the grades of Staff Sergeant through Command
Sergeant Major who are eligible for reenlistment in accordance with the
provisions of this chapter who have at least 10 years of total military
service will be allowed to reenlist (but not extend) for an unspecified
period of time and to continue in an AGR status.  Reenlistment may be
permitted for a specific period of time for humanitarian reasons or pending
other ongoing personnel actions.

DISCUSSION AND CONCLUSIONS:

1.  The 26 January 2005 message the applicant referred to was not
available; however, he contended MILPER message 04-353 stated Soldiers in
an AGR status can reenlist anytime during their contract period and that
there is no window.  A copy of MILPER message 04-353 was obtained and it
does not discuss the reenlistment window of opportunity.

2.  The November 2005 messages provided by the Army Reserve Active Duty
Management Directorate, U. S. Army Human Resources Command – St. Louis, MO
did mention that the reenlistment period of eligibility was expanded to
within 12 months prior to ETS.

3.  The applicant's ETS from his 6-year reenlistment of 12 July 1998 was 11
July 2004.  Even under the new guidance in the November 2005 messages, he
would have had to reenlist prior to 11 July 2004.  He did reenlist prior to
11 July 2004, on 8 June 2004.

4.  The applicant contends he was forced to reenlist for an indefinite
period.  It may have been true that he was "forced" to reenlist for an
indefinite period; however, the "force" came through a regulatory
requirement.  The governing regulation requires AGR Soldiers in the grades
of Staff Sergeant through Command Sergeant Major who are eligible for
reenlistment who have at least    10 years of total military service to
reenlist for an unspecified period of time.  The applicant had over 17
years of total military service at the time of his 8 June 2004
reenlistment.  He provides no evidence to show he should have been
permitted to reenlist for a specific period of time for humanitarian
reasons or because he was pending other ongoing personnel actions.

5.  Regrettably, since it appears the SRB for his MOS and grade did not
become effective until 1 January 2005, he was not eligible to reenlist for
the SRB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_lds ____  _jcr _  ___  __dkh___  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.




                                  _____Linda D. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007607                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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