PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 June 2000                   
	DOCKET NUMBER:   AR2000036647

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be reimbursed the $300.00 bonus that was recouped from him.

3.  The applicant defers to counsel who contends that nowhere in the applicant’s contract does it state that his voluntary transfer from the contracted military occupational specialty (MOS) of 31C/D (31C - Single Channel Radio Operator; 31D – Mobile Subscriber Equipment Transmission System Operator) to MOS 91B (Medical Non-Commissioned Officer) is a reason for recoupment of his bonus.

4.  The applicant's military records show that he enlisted in the U. S. Army Reserve (USAR) Delayed Entry Program on or about 16 April 1988.  He served on active duty in the Regular Army from 19 May 1988 until 18 May 1992.  He had been trained in MOS 31C and held that MOS at the time of his release from active duty.  His DD Form 214, Certificate of Release or Discharge from Active Duty, showed his reserve obligation terminal date as 15 April 1996.

5.  On 19 May 1992, the applicant entered the Army National Guard (ARNG) under the Selected Reserve Incentive Program (SRIP) – Affiliation Bonus.  He completed DA Form 5261-3-R-3, Selected Reserve Incentive Program – Affiliation Bonus Addendum.  In section III of the DA Form 5261-3-R-3, he acknowledged that, in connection with his assignment to Company A, 134th Signal, he met the eligibility criteria of being assigned to a unit vacancy in the Selected Reserve which was authorized the grade and MOS he currently held.  In section V, he acknowledged that he would receive an initial payment of      one-half the amount of the bonus on completion of the form and assignment to the Selected Reserve.  The remainder of the bonus would be paid on the fifth anniversary date of his military service obligation (MSO).  In section VI, he acknowledged that his entitlement to the Affiliation Bonus would be terminated should any of the following conditions occur before completion of his statutory MSO:  (1) unsatisfactory participation; (2) acceptance of a permanent civilian position where membership in the Selected Reserve is a condition of employment; (3) separation from the Selected Reserve as an enlisted person for any reason; (4) entering a period of nonavailability; (5) participation in the Reserve Officers Training Corps (ROTC)/Simultaneous Membership Program (SMP) upon enrollment in the ROTC advanced course or assignment to Control Group (ROTC); and (6) completion of the statutory MSO.  In section VII, he acknowledged that if his entitlement to an Affiliation Bonus was terminated for any of reasons 1 through 3 in section VI, he could be subjected to recoupment action.

6.  Apparently, around November 1995, the applicant was reclassified or “transferred” into MOS 91B.

7.  On 18 March 1996, the applicant was discharged from the ARNG and transferred to the USAR, 114th Combat Support Hospital from where he attended 91C (Licensed Practical Nurse) training beginning in September 1996.

8.  In September 1996, the applicant was notified by the Minnesota ARNG that they intended to initiate recoupment of $300.00 in Affiliation Bonus overpayments (six months at $50.00 per month) stemming from his voluntary transfer from the contracted MOS 31C/D to MOS 91B.

9.  Army Regulation 135-7 prescribes policies and procedures for the administration of the ARNG and the USAR incentive programs.  In pertinent part, it discusses the SRIP – Affiliation Bonus.  It states that soldiers meeting the eligibility criteria may be awarded an Affiliation Bonus.  The bonus amount is based on $50.00 per month for each month of the remaining statutory MSO served in affiliation with a unit of the Selected Reserve.  It states that the Affiliation Bonus entitlement will stop if the soldier becomes an unsatisfactory participant; accepts a permanent civilian position where membership in the Reserve is a condition of employment; becomes a participant in the ROTC/SMP on enrollment in the ROTC advanced course or becomes an assigned member of the Control Group (ROTC); is separated from the Selected Reserve as an enlisted person for any reason; enters a period of nonavailability (persons who complete a period of nonavailability and request reinstatement of eligibility for the SRIP and resumption of incentive payments must rejoin a bonus authorized unit or MOS and extend their agreement in order to serve out the full incentive contract period in the Selected Reserve); completes the statutory MSO; moves to a duty MOS in which he or she is not qualified unless at the direction of the ARNG or USAR; or requests and accepts assignment to a nondrill sergeant duty position within the Selected Reserve if enlisted for the USAR drill sergeant program.  Recoupment of Affiliation Bonus payment must be initiated when entitlement to such incentive is terminated based on the soldier’s unsatisfactory participation, acceptance of a permanent civilian position where Selected Reserve membership is a condition of employment, or separation from the Selected Reserve as an enlisted person for any reason.

CONCLUSIONS:

1.  The wording in Army Regulation 135-7 shows that the intent of the SRIP program is to pay the Affiliation Bonus only when the soldier is assigned to a bonus authorized unit or MOS.  However, in completing and signing the DA Form 5261-3-R-E the applicant and the Army agreed that any bonus paid to him would be subject to recoupment if he was terminated for one of three conditions.  These conditions were unsatisfactory performance, or civilian employment requiring membership in the Selected Reserve, or separation from the Selected Reserve for any reason.  These terms implied that a change of MOS was not a basis for recoupment.  
2.  In addition, the applicant did not meet any one of the three conditions described in the contract or those described in the regulation that would have subjected his bonus to recoupment.

3.  The Board concludes that the risk of error in the contract, written by the Army, is borne by the Army, not the applicant.  As a matter of fairness, the Army should honor its agreement with him.  

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by reimbursing to the applicant the $300.00 in Affiliation Bonus monies recouped from him.

BOARD VOTE:  

__owt___  __kan___  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Orville W. Troesch, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036647	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.