PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           6 November 2001                 
	DOCKET NUMBER:   AR2001063035

	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:

	Ms. Deborah S. Jacobs		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Donald P. Hupman		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, termination of the recoupment of his Selected Reserve Incentive Program (SRIP) debt of approximately $1,953.00.

3.  The applicant states in effect, that he reenlisted into the US Army Reserve (USAR) under the SRIP.  Shortly after being assigned to a unit he accepted an Active Guard Reserve (AGR) duty position as an USAR recruiter.  He was later notified by the Defense Finance and Accounting Service (DFAS) that the SRIP bonus money he had received was now a debt and would be collected.

4.  In support of his request, he submits a letter from his commander.  He states the applicant received one half of a $5000.00 bonus for joining the USAR.  The applicant accepted an USAR recruiter position, after serving several months with the USAR unit.  He recommends full relief for the applicant.

5.  The applicant’s military records show that he separated honorably from the Regular Army on 17 June 1998.  On 5 February 1999, he enlisted into the USAR, as a sergeant, for a period of six years.

6.  At enlistment, he completed a SRIP – USAR Prior Service Enlistment Bonus Addendum (DA Form 5261-5-R), which shows that he enlisted under the SRIP incentive, and that the government would pay him $5,000.00.  In Section VII (Termination), the form indicates that entry on active duty in an AGR status prior to the fulfillment of the enlistment agreement would cause termination of the bonus.  

7.  In Section VIII (Recoupment) of DA Form 5261-5-R it states “If my entitlement to the prior service enlistment bonus is terminated for a reason listed in paragraph 1 through 8 of Section VIII [error on form, should read VII], above,       I may be subject to recoupment action.”  The recoupment would be based on the number of months served satisfactorily multiplied by $69.44 and subtracted from the total amount paid.

8.  On 22 October 1999, orders were issued ordering the applicant to active duty effective 27 October 1999, for the purpose of attendance at recruiting and retention school and follow on assignment.

9.  On 16 December 1999, a certificate was issued reflecting that the applicant had completed the recruiting and retention school.

10.  On 10 July 2000, DFAS notified the applicant that full payment of his debt of $1953.23 was due.

11.  On 30 August 2000, the applicant submitted a waiver/remission of indebtedness application to DFAS.

12.  On 31 October 2000, DFAS notified the applicant that his waiver request was returned without action.  It cited Public Law 92-453, which authorizes the waiver of erroneous payments of pay and allowance to military members.  In implementing instructions, the Comptroller General ruled that any payment that is legal and proper when paid may not be considered for a waiver.  At the time the applicant received the SRIP payment it was proper; therefore, DFAS advised that the debt was not an erroneous payment subject to waiver.

13.  Army Regulation 135-7 provides, in pertinent part, that prior service soldiers enlisting in the Army National Guard and or a troop program unit of the Selected Reserve of the USAR may be offered an incentive of $2500.00 for enlistment for three years or $5000.00 for six years.  Soldiers enlisting with prior active duty service must have an honorable discharge and soldiers last discharged from the ARNG or USAR, must have a 12-month break in service.  Further, the soldier must reenlist in a selected military occupational specialty announced by the Department of the Army 

14.  The same regulation provides that recoupment is not authorized for separation from enlisted status in an USAR Selected Reserve unit for any reason unless due to entry on active duty in an AGR status.

15.  Department of Defense Instruction (DODI) 1205.21, provides in pertinent part, that if entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member’s written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date.  Recoupment is not required if accepting an AGR position where membership in a Reserve component is a condition of employment, and member has served at least six months of the incentive contract following receipt of the initial incentive payment.

CONCLUSIONS:

1.  The SRIP contract indicated that if the SRIP bonus was terminated then the applicant may be subject to recoupment action.  The contract does not explain what criteria is used to make the decision on whether or not recoupment action will be initiated.  However, DODI 1205.21 does provide clearer instructions.  It states that recoupment is not required for those accepting an AGR position, which the applicant did.  The Board is persuaded to affirm the applicant’s request.

2.  The applicant served at least six months (February 1999 to October 1999) of the incentive contract following receipt of the initial incentive payment prior to accepting an AGR position as an USAR recruiter.  The Board concludes that recoupment of the initial SRIP payment was incorrect and any further recoupment should cease and any monies collected refunded.
3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  remitting the SRIP debt; and

b.  reimbursing to the applicant all principal, administrative and interest charges recouped from him in connection with the SRIP enlistment bonus.

BOARD VOTE:  

__dph___  ___dsj___  ___eja__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___________Deborah S. Jacobs___
		        CHAIRPERSON

INDEX

CASE ID	AR2001063035	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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.	128.05	
2.		
3.		
4.		
5.		
6.