PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001061836

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 in effect, that his military records be corrected to show that he is authorized an enlistment bonus of $14,000 plus interest.

3.  The applicant states that an enlistment cash bonus of $14,000 was part of his enlistment contract.  Upon arrival at his first duty station he was informed that he was only authorized a bonus payment of $3,000.  He did not accept the bonus because he did not want to forfeit the other $11,000.  He then sought the assistance of a local career counselor.  After speaking with the counselor the local finance office determined he was entitled to $9,000.  The counselor advised the applicant that he was entitled to $14,000 because the Army promised it to him in writing, but that his only option was to seek legal assistance.  He was advised by an attorney to appeal to this Board.  He asks that the Army honor its contract.

4.  In support of his appeal, the applicant submits a letter from a battalion career counselor.  The counselor recalls that the applicant informed him that the local finance office only wanted to pay him a bonus of $3000.  He called the finance office and after explaining the bonus message the finance office agreed to pay the applicant $9,000.  He then called the recruiting personnel who had enlisted the applicant.  They informed him that they had made a mistake regarding the bonus.  The counselor then advised the applicant to seek legal assistance.

5.  The applicant’s military records show that he enlisted in the USAR Delayed Entry Program on 26 February 2000 for a period of 4 years and training in military occupational specialty (MOS) Motor Transport Operator (88M) with an enlistment cash bonus of $14,000.  He entered onto active duty in the Regular Army on 21 March 2000.

6.  A DA Form 3286-59 (Statement for Enlistment, US Army Enlistment Program, US Army Delayed Enlistment Program) indicates in two separate paragraphs that the applicant was to receive a cash bonus of $14,000.

7.  A DA Form 3286-66 (Statement of Understanding, US Army Incentive Enlistment Program) reflects that in accordance with Headquarters Department of the Army (HQDA) message 99-093, dated 15 December 1999, the applicant would receive a cash bonus of $14,000.

8.  A DD Form 1966/3 (Record of Military Processing - Armed Forces of the United States) contains a handwritten entry stating that the applicant would receive a cash bonus of $14,000.

9.  A review of US Army Recruiting Command Message 99-093 (which is similar to HQDA message 99-093) reflects a bonus of $6,000.00 for those enlistees with a high priority seat and a $3,000.00 cash bonus for those enlisting for 4 years for training as an 88M.
10.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff for Personnel (ODCSPER).  It concluded that in accordance with the applicant’s file in the HQDA Recruit database the applicant was authorized to receive a $9,000 bonus, and recommended payment of that amount.  Enclosed with the advisory opinion was a printout that identified the applicant by his social security number.  The printout indicates that the applicant was entitled to two bonuses for two incentives:  Incentive 1: US Army cash bonus 4 year enlistment - $3000; Incentive 2: US Army seasonal bonus (high priority seat) - $6000 for a total bonus of $9,000.

11.  The ODCSPER advisory opinion was provided to the applicant for comment, however, he did not respond.

12.  Payment of interest is an issue raised by the applicant.  The United States is not liable for interest on its obligations except when interest is stipulated for in legal and proper contracts or where allowance of interest is specifically directed by statute.  There is no provision in 10 United States Code 1552, the statute governing the Board, for payment of interest on amounts found due based on a correction of military records.

13.  Army Regulation 635-200 provides, in pertinent part, that a defective enlistment agreement exists when the soldier receives a written enlistment commitment from recruiting personnel for which the soldier is qualified but which the Army through no fault of the soldier cannot fulfill.  When the error is discovered after initial assignment the soldier may request discharge.

CONCLUSIONS:

1.  The applicant’s contention that he enlisted under the belief he was eligible for a cash bonus of $14,000 is fully supported by the evidence of record.  The Board agrees with the applicant that he made a contract in good faith with the government that he would enlist for 4 years in the Regular Army for training in MOS 88M with the understanding that the government would pay him bonuses totaling $14,000.  As a matter of law, the applicant is only entitled to $9,000 of the promised $14,000 bonus.  The recruiter, like any other government agent, does not generally possess the authority to bind the government to a contract that is not authorized by law.  

2.  Notwithstanding the above, the Board in this case has concluded that honoring this promise, and protecting the Army’s reputation for honest dealings in recruiting, would justify the payment of the full amount promised to the applicant. This conclusion is strictly an exception to policy made on an individual basis.

3.  A review of the USAREC message 99-093 (which is similar to HQDA message 99-093) provided no reasonable explanation to explain why or how the Army’s representatives in this matter made a mistake in calculating the amount of the applicant’s bonus.   Since the applicant fully meets the conditions of his enlistment contract and has been on active duty over one year it would be an unnecessary hardship to void his contract as a defective enlistment.

4.  The Board noted the applicant’s request for interest.  There is no statute authorizing the Board to direct award of interest on back pay awards; therefore, the Board is precluded from granting this request by the applicant and will not consider this matter further.

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 showing that the individual concerned is entitled to receive an enlistment cash bonus in the amount of $14,000.00 in MOS 88M as an exception to policy, and in accordance with the terms of his enlistment contract dated 26 February 2000.

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

BOARD VOTE:  

___jtm___  _____cla  ____rvo__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Raymond V. O'Connor________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061836	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020228	
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.