MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           24 January 2002
	DOCKET NUMBER:   AR2001060674

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

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

APPLICANT REQUESTS:  In an application dated 18 July 2001, that he be paid the reenlistment bonus that he was promised at reenlistment, but was subsequently denied.  He states, in effect, that he reenlisted in the US Army Reserve (USAR) for the prior service enlistment bonus.  After reenlisting for 6 years, he was informed that his military occupational specialty (MOS), 11B (Infantryman) was not eligible for the bonus.  He reenlisted for the bonus, it is on his contract, a representative of the Army signed the contract, and he is fulfilling his obligation.  In support of his application, he submits:  a copy of his 11 March 1997 enlistment contract; a letter from his recruiting noncommissioned officer (NCO), dated 21 August 1997, requesting that the applicant be paid the bonus as an exception to policy; a letter from the Chief, Retention Office, US Army Reserve Command, dated 18 September 1997, recommending approval to the request for an exception to policy; a letter from the Chief, Personnel Division, Office of The Chief, Army Reserve (OCAR), dated 8 October 1997, recommending approval; and a letter of denial from Headquarters, Department of the Army (HQDA), dated 10 October 1997.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

With prior service, he enlisted in the USAR on 11 March 1997 for a period of 6 years.  He enlisted under the Selected Reserve Incentive Program – USAR Prior Service Enlistment Bonus Addendum (DA Form 5261-5-R), for a $5,000 enlistment bonus.

On an unknown date, the applicant was informed that he was not eligible for the enlistment bonus based upon his MOS of 11B.  On 21 August 1997, his unit requested that he be authorized the enlistment bonus as an exception to policy and forwarded the request to the OCAR.  The OCAR recommended approval and forwarded the request to HQDA for final approval.  In its recommendation, the OCAR noted that, at the time of the applicant's enlistment, a computer error included MOS 11B as an eligible MOS for the prior service bonus.  HQDA, on 10 October 1997, denied the request because the applicant's MOS was not authorized the prior service enlistment bonus, and pointed out that the applicant had the options to either remain in the USAR, request discharge based on an invalid enlistment contract, or petition this Board.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:

1.  The applicant enlisted in the USAR on 11 March 1997.  When he enlisted, he was told that he qualified for a prior service enlistment bonus because his MOS was erroneously included in a computer program of MOS's eligible for a bonus.

2.  Although it is unknown when the applicant was advised that he was promised the bonus in error, it is known that his retention NCO initiated a request for an exception to policy on 21 August 1997 to permit the applicant to receive the bonus.  It is also known that HQDA denied the exception to policy request on 10 October 1997 and advised the applicant that had three options; he could:  (1) Continue to serve in the USAR, (2) Request discharge based on an erroneous enlistment, or (3) Petition this Board for relief.

3.  The applicant waited 45 months to petition this Board to pay him the enlistment bonus.  He argues that he is fulfilling his contract and should be paid the bonus.  The Board is not persuaded by this argument and notes that the error was discovered shortly after the applicant enlisted and he was promptly provided with three choices by HQDA.  He apparently chose to continue to serve and only after more than 3 1/2 years decided to change his option to petition this Board.

4.  The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 October 1997, the date that HQDA denied his request for an exception to policy and provided him with the option to petition this Board.  The time for the applicant to file a request for correction of any error or injustice expired on 10 October 2000.  The application is dated 18 July 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

5.  Prior to reaching this determination, the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_GDP ___  ___WTM  ___RTD _  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001060674	
SUFFIX		
RECON		
DATE BOARDED	20020124	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.0500	
2.		
3.		
4.		
5.		
6.