MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           8 August 2002                   
	DOCKET NUMBER:   AR2002070383

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  That he be given the prior service reenlistment bonus he contracted to receive.

APPLICANT STATES:  That he was told he qualified for a prior service reenlistment bonus by his recruiter and completed the required addendum to receive that bonus.  However, after he reenlisted he was told that an error had been made, that he had not been separated from the Army National Guard for a year.  Therefore, he was not entitled to the bonus.  The applicant concludes that “I am fulfilling my obligation and I expect the United States Army Reserves to fulfill their obligation to me as a soldier.” 

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

He enlisted in the Army Reserve with no prior service for 8 years on 28 January 1991.  On 10 March 1994, he enlisted for 6 years in the Army National Guard (ARNG), was promoted to pay grade E-5, and was honorably discharged from the ARNG and transferred to the USAR Control Group (Reinforcement) on 1 October 1999.

On 7 September 2000, the applicant enlisted in the USAR for assignment to a troop program unit.  At that time he executed the addenda for the Montgomery GI Bill (MGIB), for the $10,000.00 Student Loan Repayment Program (SLRP), and for the $5,000.00 prior service reenlistment bonus.

On 26 December 2000, the applicant’s unit’s servicing finance and accounting office wrote the applicant’s commander, informing him that the applicant was not eligible for the prior service reenlistment bonus because he did not have the required 1-year break in service.

On 8 April 2001, the applicant’s commander submitted a request for an exception to policy to pay the applicant his prior service reenlistment bonus.  On 19 July 2001, the division retention officer disapproved the commander’s request for an exception to policy.  The division retention officer informed the commander that the applicant’s reenlistment was defective since he was promised a benefit which 

could not be fulfilled, and told his commander that the applicant could elect to be discharged, to remain in the unit without the bonus, or to petition this Board for relief.

Army Regulation 135-7, chapter 2.1, provides for a prior service reenlistment bonus to those soldiers who have completed their statutory military service obligation and who, if last discharged from the ARNG or USAR, have at least a year’s break in service.

Army Regulation 135-178 sets forth the basic authority for the separation of reserve enlisted personnel.  Chapter 9 provides for individuals who were promised a benefit in conjunction with their enlistment or reenlistment which the Army cannot honor.  These individuals have the option of either requesting immediate discharge or waiving the benefit and remaining in the USAR.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant had not been separated from the ARNG for a year at the time of his reenlistment in the USAR.  Although his discharge from the USAR Control Group (Reinforcement) is not contained in his records, he was required to be discharged at the expiration of his term of service on 9 March 2000, which means he would not have been eligible for the prior service reenlistment bonus until 9 March 2001.

2.  While it is unfortunate that the applicant was given erroneous information on his entitlement to the prior service reenlistment bonus, such errors do occur.  Since law and regulation do not provide for the payment of monetary benefits which aren’t authorized, the soldier is provided the option of being discharged from the defective contract or waiving the promised incentive.  The applicant was offered these options in a timely fashion.

3.  Since the applicant was offered the options provided by regulation in a timely manner, there is no basis for granting his request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___mvt__  ___le____  ___rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070583	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020808	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.