PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           27 September 2001                   
	DOCKET NUMBER:   AR2001058736

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O'Shaughnessy		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 his Selective Reenlistment Bonus (SRB) be paid to him in accordance with the terms of his contract.

3.  The applicant states that he signed a valid contract with the Army and the Army has to honor its portion of that contract.

4.  The applicant's military records were not provided to the Board.  The following information was derived from documents provided by the applicant himself.

5.  On 26 June 2000 he immediately reenlisted for 3 years for SRB 0.5.  At that time he had 2 years, 1 month and 4 days of active service.

6.  Army Regulation 601-280 establishes the policies and provision for the Army retention program.  In pertinent part it states that the SRB program is a retention incentive paid to soldiers in certain selected Military Occupational Specialties (MOS's) who reenlist for a minimum of 3 years.  The objective of the SRB program is to increase the number of reenlistments in critical MOSs that do not have adequate retention levels to man the career force.  Three zones have been established under the SRB program.  They are zone A, which applies to soldiers between 21 months and 6 years of active service, zone B for those soldiers between 6 and 10 years, and zone C, which applies to soldiers between 10 and 14 years of active service.  Within each zone a multiplier between .5 and 6 is established based on the eligible MOS.  The amount of the bonus is determined by multiplying the soldiers monthly basic pay times the period of reenlistment (excluding any service obligation remaining from a previous enlistment/reenlistment) times the SRB zone multiplier, or $20,000, which ever is the lesser amount.  A soldier may be paid an SRB only once within each zone of eligibility.

7.  In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM).  The PERSCOM stated that in order for a soldier to be eligible for an SRB he or she must have a total of at least 6 years of service at the newly established Expiration of Term of Service (ETS).  In the applicant’s case, his reenlistment will give him 5 years, 1 month and 4 days of active service at his new ETS.  The PERSCOM stated that the applicant could request to change his term of reenlistment to 4 years which would give him the required 6 years of active service at his ETS (thereby making him eligible for his SRB), or he can request separation for an unfulfilled reenlistment commitment.  The applicant was provided this advisory opinion and responded that since he 

must comply with the terms of his enlistment contract, the Army must also comply with the contract.  

8.  The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7 establishes policy and prescribes procedures for separating members for defective enlistments, reenlistments and extensions.  However, the soldier must request separation within 30 days of discovering the defective nature of the enlistment (paragraph 7-16e).  This chapter also provides the authority for the affected soldier to waive the defective enlistment and serve his or her enlistment without the promised incentive.

CONCLUSIONS:

1.  The applicant was erroneously allowed to execute an SRB addendum because he did not reenlist for the required years of service.

2.  Army Regulations provide for the discharge of a soldier who is promised an enlistment incentive which the Army cannot fulfill.  However, there is no evidence that the applicant had been advised of that option.

3.  The PERSCOM has offered the applicant an opportunity to renegotiate his reenlistment contract so he would have sufficient years of service at his ETS to qualify for his SRB.  The applicant has declined this option.

4.  The Board corrects errors or injustice which are not amenable to administrative correction.  In this case the applicant was offered a method to qualify for the SRB he was promised.  The Board will not use its authority to circumvent the requirement for a soldier to earn the benefits provided by the Army.  However, since there is no evidence that the applicant was informed that he had the option of requesting discharge, and the time to do so has expired, the Board will recommend that he now be provided that option.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by providing the individual concerned 60 days from the date of this document to request discharge as a result of his defective enlistment in accordance with Army Regulation 635-200, paragraph 7-16.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___rvo __  ___teo __  ____ena    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		________Raymond V. O'Connor____
		        CHAIRPERSON

INDEX

CASE ID	AR2001058736	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010927	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.