MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          13 August 2002
	DOCKET NUMBER:   AR2002072512

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		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:  In effect, that he be awarded the prior service enlistment bonus that he contracted to receive.

APPLICANT STATES:  In effect, that he was denied his prior service enlistment bonus of $5,000.00.  He states that he enlisted in the United States Army Reserve (USAR) for 6 years with the understanding that he met the requirements to be awarded the prior service enlistment bonus.  He further states that although a mistake was made, the USAR should honor his enlistment contract.  In support of his application, he submits the following documents:  Enlistment Contract 
(DD Form 1966/3); Army Reserve Reservation Record Copy; an undated Memorandum, issued by Headquarters, Reserve Component Pay Support Office, Fort Riley, Kansas; Memorandum dated 5 March 1997, issued by US Army Recruiting Command (USAREC), Fort Knox, Kentucky; Memorandum, dated 
31 March 1997, issued by the Office of The Chief, Army Reserve (OCAR), Chief, Personnel Division; Memorandum, dated 8 April 1997, issued by Headquarters Department of the Army (HQDA), Office of the Deputy Chief of Staff for Personnel (ODCSPER), Chief, Enlisted Accessions Division; Letter, dated 
6 November 1997, to a member of Congress; and Letter, dated 16 December 1997, issued by HQDA, ODCSPER, Chief, Enlisted Accessions Division. 

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

On 31 October 1996, the applicant enlisted in the USAR as an infantryman for a period of 6 years and the prior service enlistment bonus.  During the enlistment process the recruiter certified on the applicant’s enlistment contract (DD Form 1966/3), Section VI-Remarks, that the applicant was eligible for the prior service enlistment bonus of $5,000.00.

The undated memorandum, issued by Headquarters, Reserve Component Pay Support Office, Fort Riley, submitted by the applicant, denied his request for payment of the prior service enlistment bonus of $5,000.00.  The basis for the non-payment of the prior service enlistment bonus was the applicant’s military occupational specialty (MOS) 11B (Infantryman) was not a bonus MOS for prior service during fiscal year 1997.

On 5 March 1997, the Chief, Assistance and Investigations Division, USAREC, prepared a memorandum to the OCAR requesting that an exception to policy be granted and that the applicant be paid the prior service enlistment bonus of $5,000.00.  The memorandum indicated that the enlistment bonus was displayed on the applicant’s request reservation.  

In addition, the USAREC memorandum stated that the prior service bonus was written into his enlistment contract by a recruiting official.  It further indicated that the bonus in question was authorized for soldiers who were drill sergeant qualified, which the applicant was not.  However, given the request vacancy table did not specify the restriction when the bonus was authorized, and that the errors were made by USAREC and USARC, through no fault of the applicant, approval of the exception to policy was recommended.

On 31 March 1997, the OCAR recommended disapproval of the request for exception of policy authorizing the $5,000.00 enlistment bonus.  OCAR opined that upon enlistment, the applicant did not possess the Special Qualification Identifier (SQI) X, and was not assigned in a drill sergeant position, which in accordance with the applicable regulation was required in order to qualify for the prior service enlistment bonus.

On 8 April 1997, the Chief, Enlisted Accessions Division, ODCSPER, disapproved the request for exception to policy and denied the applicant payment of the prior service enlistment bonus.  The denial action indicated that in order to qualify for the bonus, the applicant must be drill sergeant qualified and that by regulation, a soldier must have successfully served in the military occupational specialty (MOS) and attained a level of qualification commensurate with his grade and years of service while serving on active duty in order to qualify for the bonus.  

On 16 December 1997, the Chief, Enlisted Accessions Division, ODCSPER, prepared a letter replying to an inquiry from the applicant’s Member of Congress. The letter stipulated that the applicant’s MOS had not been on the incentives list for many years, and unfortunately on occasion recruiting personnel make mistakes in the incentives they offer prospective soldiers, as is the case with the applicant.  The MOC was further advised that when this happens a soldier is counseled and is provided the following options:  he/she may remain in their unit without benefit of the incentive; request discharge; or apply to the Army Board for Correction of Military Records to pursue redress for any perceived injustice. 

Army Regulation 135-7, chapter 2.1, provides for a prior service reenlistment bonus to those soldiers who possess a SQI X (Drill Sergeant) upon enlistment and assigned to a Training Program Unit (TPU) drill sergeant duty position.  The soldier must have successfully served in the MOS and attained a level of qualification commensurate with his grade and years of service while on active duty in order to qualify for this bonus. 

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, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that he should receive the enlistment bonus contained in his enlistment contract, but it finds insufficient evidence to support this claim.  The evidence of record confirms that upon his enlistment, the applicant did not possess the Special Qualification Identifier (SQI) X and he was not qualified as a drill sergeant.  By regulation, these prerequisites were required in order to qualify for the prior service enlistment bonus in question.

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 when such errors occur, the applicant was provided the option of remaining in his unit without the benefit of the bonus incentive, or of being discharged by reason of a defective enlistment contract.  

3.  The record shows that the applicant voluntarily elected to remain in his unit and serve without the benefit of receiving the bonus.  In view of this fact, the Board finds no injustice related to the non-payment of the bonus in question, and it regrettably concludes that the requested relief is not warranted. 

4.  In view of the foregoing, there is no basis for granting the applicant’s 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

__FNE__  __ TSK  _  _ _LEM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002072512	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/13	
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.	112.1100	
2.		
3.		
4.		
5.		
6.