IN THE CASE OF: BOARD DATE: 28 April 2020 DOCKET NUMBER: AR20190003784 APPLICANT REQUESTS: his current reenlistment contract be voided and he be provided with a new reenlistment contract, or if this is not possible, that he be awarded the six thousand dollar ($6000) bonus for which he initially contracted. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 17 November 2014 * DA Form 3540 (Certificate and Acknowledgement of U.S. Army Reserve Service Requirements and Methods of Fulfillment), dated 11 November 2014 * United States Army Reserve (USAR (Selected Reserve Incentive Program– USAR Reenlistment Bonus Addendum)), dated 11 November 2014 * memorandum, Headquarters (HQ), United States Army Reserve Command, dated 10 May 2018 * Orders 14-336-00001, Headquarters, 00th Regional Support command, dated 2 December 2014 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, his reenlistment contract was signed under false pretenses and misrepresentation by the recruiter. He contends he signed the contract with the understanding that it was valid on the date of signature and not six months after the date he signed. He was deployed with his civilian employer in Saudi Arabia when he signed the contract and his overseas employment request was already approved. He was awaiting orders, which were received less than 30 days after he signed the contract. He believes there was absolutely no benefit for him or the Army to sign the enlistment contract on the signature date. a. He further contends he has never received disciplinary action under the Uniform Code of Military Justice, he served with distinction in combat, he has not been on a physical profile, he maintained a Top Secret/Sensitive Compartment Information (TS/SCI) clearance for 17 years, and he had positive evaluations. He believes the Army treated him well over his 17 years of service and he lived up to his contracts and served honorably. b. He believes the recruiter was disingenuous and the action by the Army to be unjust, because the only stipulation leading to the suspension of the bonus was that he was in the Individual Ready Reserve (IRR) status on the effective date. He now respectfully request reinstatement of the bonus. 3. On 17 November 2014, the applicant reenlisted into the Army Reserve for a period of six years. a. His DD Form 4 shows his rank/grade as sergeant first class (SFC/E-7) and the location of his reenlistment as "SGT [Sergeant] P USARC [U.S. Army Reserve Center]." (1) Section B (Agreements), item 8 states the additional details of his reenlistment were in Section C and Annex A. (2) Section B, item 8b (Remarks) includes remarks showing/stating – * Immediate Reenlistment into a Troup Program Unit in accordance with Army Regulation 140-111 (USAR Reenlistment Program), chapter 6 * Bonus Control Number A06B01503593 * he understood the effect date of his reenlistment was one day following his current expiration of term of service (ETS) date of 30 July 2015 * the effective date (of his reenlistment) was 31 July 2015 * he further understood that any bonus payment would begin on the effective date (31 July 2015) * his contract expired on his ETS date of 30 July 2021 (3) Section B, item 8c shows he affixed his initials acknowledging and agreeing that he understood, "The agreements in this section and attached annex(es) are all the promises made to me by the Government. ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED." (4) Section D (Certification and Acceptance), item 13a contains the statement, "I certify that I have carefully read this document, Including the partial statement of existing United States laws in Section C and how they may affect this agreement. Any questions I had were explained to my satisfaction. I fully understand that only those agreements in Section B and Section C of this document or recorded on the attached annex(es) will be honored. I also understand that any other promises or guarantees made to me by anyone that are not set forth in Section B or the attached annex(es) are not effective and will not be honored." The applicant affixed his signature in item 13b, thereby acknowledging his understanding of, agreement to, and acceptance of the statement in item 13a. b. Annex A (Certificate and Acknowledgment of USAR Service Requirements and Methods of Fulfillment) shows: (1) SECTION IV (Service Obligation) - Immediate Reenlistment in the USAR - He was a current member of the USAR and he was reenlisting to continue his membership in the USAR. If he was serving under an incurred statutory military service obligation, he had reenlisted in the USAR for a term of service that was equal to or greater than the remaining unfulfilled portion of his current statutory military service obligation. (2) SECTION V (Method of Fulfillment) – Enlistment/Reenlistment with Previous Service or Currently in Service: Under the terms of his enlistment/reenlistment agreement he understood - (a) If he was not qualified in the military occupational specialty (MOS) required by his assigned duty position he may be required to enter on a period of active duty for (ADT) to become qualified. (b) He understood that if his reenlistment provided for service as an assigned member of a troop program unit (TPU) he must commence training with the TPU immediately. He would be required to satisfactorily participate as an assigned member of a TPU of the Selected Reserve for the entire term of service stipulated on the reenlistment document, unless sooner removed by proper authority. (c) He understood that if his reenlistment provided for service as an assigned member the Individual Ready Reserve (IRR) he would be required to satisfactorily participate for the entire term of service stipulated on the reenlistment document, unless sooner removed by the proper authority. If he was subsequently reassigned to a TPU or IMA duty position of the Selected Reserve, he must continue to participate satisfactorily. c. He completed and signed a Selected Reserve Incentive Program (SRIP)-USAR Reenlistment Bonus Addendum: (1) Section III (Acknowledgement) states he was qualified in MOS 38B (Civil Affairs Specialist), which was approved as a bonus MOS and correlates to the unit position vacancy for which he was reenlisting or in an MOS for which correlates to the unit position vacancy for which he was reenlisting in unit (WRT7C0) that has been approved as a bonus unit. (2) Section V (Entitlement) - (a) He was reenlisting for six years with a bonus amount of $6000 in accordance with USAR SRIP(s). Bonus payment would be received IAW USAR SRIP list upon providing proof of contract and qualification at time of request for payment. Retaining the bonus once paid is contingent upon satisfactory participation in the Selected Reserve and subject to current recoupment policy. (b) His current expiration of term of service (ETS) date was greater than his mandatory statutory obligation (MSO). The initial payment of fifty percent of the bonus will be paid upon proof of contract and qualification at time of request for payment. The first installment sum of this bonus will begin on the effective date of this contract (DD Form 4/1, item 8b remarks). The reminder of this bonus will be paid in increments of twenty five percent at the end of the second anniversary year and twenty five percent at the end of the fourth anniversary year. (3) Section VII (Suspension) stated he could be suspended from the incentive program for a 3 year period (or less) of non-availability upon approval for temporary overseas residence, missionary obligation, or overseas employment obligation. Also transfer to the IRR for personal reasons for up to one year. Reinstatement of incentive eligibility, when authorized, requires extending his term of service equal to greater than the period he was in a non – available status. He understood that his eligibility was contingent upon his MOS and/or unit remaining on the Headquarters Department of the Army (HQDA) approved critical shortage list for bonus eligibility. (4) Section VIII (Termination) stated his entitlement to the reenlistment bonus would be terminated and previous bonus payments may be subject to recoupment for any of the following reasons, should he: (a) Exceed the maximum period of non-availability the recoupment was required from the effective date of transfer to the IRR. (b) Fail to extend his USAR contract term of service to compensate for a period of non-availability with 90 days after return to a Selective Reserve (SELRES) unit. Recoupment is required from the effective date of transfer to the IRR (5) Section X (Statement of Understanding) the applicant signed to acknowledge the provisions for addendum which stated he read and understand each of the statements above and that the addendum would be void if he did not meet all the eligibility requirements. (6) Section XI (Certification by Service Representative) provides the appropriate representative certified and witnessed the applicant's reading and signing of the agreement. 4. Orders 14-336-00001, HQ, 99th Regional Support Command, dated 2 December 2014, shows the applicant was released from his current assignment and was assigned to the Standby Reserve (Active Status List) with an effective date of 23 December 2014. The reason for his reassignment is listed as overseas residency or employment. 5. Orders C-09-611992, U.S. Army Human Resources Command, dated 6 September 2016, shows he was released from a standby reserve (Active List) and reassigned to USAR Control Group (REINF), effective date 6 September 2016, which shows basis for standby no longer exists. 6. Orders C-09-612529, U.S. Army Human Resources Command, dated 16 September 2016, shows he was released from USAR Control Group (REINF) and reassigned Alpha (A) Company (Tactical), 443rd Civil Affairs (CA) Battalion (BN), WRT7A0, effective 12 September 2016, for a voluntary reason. 7. On 4 August 2018, the applicant extended his current reenlistment, dated 17 November 2014, for a period of one year and three months. The evidence of record shows he was assigned to a TPU unit, A Company (Tactical), 443rd CA BN, and the extension for his reenlistment was certified by an officer. 8. Orders 19-225-00001, HQ, 443rd CA (Tactical), dated 13 August 2019, shows he was released from his current assignment and reassigned to Charlie (C) Company (Tactical) 443rd CA BN, WRT7C0, effective 13 August 2019. 9. The applicant's military record contains a memorandum, HQ, USAR Command, dated 10 May 2018, which shows his request for an exception to policy (Reenlistment Bonus (RB)) was disapproved for the following reasons: a. On the effective date of reenlistment, he was assigned to the IRR and Army policy requires Soldiers to meet all requirements at the time the reenlistment takes effect. The RB was not paid because he was not in a TPU on the effective date of the reenlistment. b. Army policy requires Soldiers to extend their contractual obligation for the length of time they were in a non-available status; he was in the IRR from 23 December 2014 to 12 September 2016. He completed an extension for 1 year and 7 months; however, the extension should have been completed for 1 year and 9 months. 10. Army Regulation 135-178 (Army Nation Guard and Reserve – Enlisted Administrative Separations), states, in pertinent part, that a defective enlistment or reenlistment exists when a Soldier has received a written enlistment or reenlistment commitment from recruiting or retention personnel for which the Soldier was qualified, but which the Army cannot fulfill. 11. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, provides eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, USAR, and ARNG. Chapter 10 (Selected Reserve Incentive Program (SRIP)), in effective at the time, stated the SRIP is approved annually by the Assistant Secretary of the Army of Manpower and Reserve Affairs (ASA (M&RA)). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. The Board agreed the reenlistment bonus was not paid because the applicant was assigned to the IRR and was not in a TPU on the effective date of the reenlistment. The Board determined that there was insufficient evidence to warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XX :XXX DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States 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. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 135-178, states, in pertinent part, that a defective enlistment or reenlistment exists when a Soldier has received a written enlistment or reenlistment commitment from recruiting or retention personnel for which the Soldier was qualified, but which the Army cannot fulfill. a. Paragraph 7-2 (Erroneous enlistment, reenlistment, and extension) Basis. A Soldier may be discharged on the basis of an erroneous enlistment, reenlistment, or extension of enlistment under the guidance set forth in chapter 2, section I. An enlistment, reenlistment, or an extension of enlistment is erroneous in the following circumstances, if: (1) It would not have occurred had the relevant facts been known by the Government or had appropriate regulations been followed. (2) It was not the result of fraudulent conduct on the part of the Soldier. (3) The defect is unchanged in material respects. b. Actions on discovery. When it is discovered that a Soldier’s enlistment, reenlistment, or extension is erroneous because he or she failed to meet the qualifications for enlistment, reenlistment, or extension (AR 140-111, AR 601-210, etc), as applicable, the unit commander (CDR, HRC-St. Louis (AHRC-EP-S), for IRR, IMA, or Standby Reserve Soldiers) will initiate action to retain, discharge, or release the Soldier, as appropriate, under the provisions of this paragraph. The unit commander (CDR, HRC-St. Louis (AHRC-EP-S), for IRR, IMA, or Standby Reserve Soldiers) will forward the case through channels to the appropriate separation authority (para 1–10) with the following information: (1) Facts relating to and circumstances surrounding the erroneous enlistment or extension. (2) The desire of the Soldier regarding retention or discharge. (3) A statement by the immediate commander as to the Soldier’s conduct, efficiency, and overall value to the Army. (4) A specific recommendation for retention or discharge, and the reasons, by each commander in the chain of command. c. Paragraph 7–3 (Defective enlistments or reenlistments), subparagraph (a. (Basis)) states a defective enlistment or reenlistment agreement exists in the following circumstances: (1) As a result of a material misrepresentation by recruiting or retention personnel, upon which the Soldier reasonably relied, and the Soldier was induced to enlist or reenlist with a commitment for which the Soldier was not qualified. (2) The Soldier received a written enlistment or reenlistment commitment from recruiting or retention personnel for which the Soldier was qualified, but which cannot be fulfilled by the Army. (3) The enlistment or reenlistment was involuntary. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, provides eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, USAR, and ARNG. Chapter 10 (Selected Reserve Incentive Program (SRIP)), in effective at the time, stated the SRIP is approved annually by the Assistant Secretary of the Army of Manpower and Reserve Affairs (ASA (M&RA)). a. Paragraph 10–6 (Suspension of incentives) listed periods of nonavailability during which incentive pay was not authorized. Recipients of an incentive were suspended from the program during authorized periods of nonavailability. Among the authorized periods of nonavailability was an approved transfer to the IRR for cogent personal reasons for up to 1 year. b. Paragraph 10–7 (Reinstatement of incentives) stated reinstatement and resumption of subsequent incentive payments following a period of authorized nonavailability is not guaranteed. Soldiers who complete a period of nonavailability and request reinstatement of eligibility for incentives and resumption of subsequent payments must: (1) Complete the period of authorized nonavailability within the required time limit in paragraph 10–6 of this regulation. (2) Rejoin an existing vacancy in the SELRES authorized the Soldier’s grade and specialty in a bonus-authorized unit, or a bonus authorized specialty. (3) Extend their contract, enlistment, or reenlistment agreement, within 90 days after completing the period of nonavailability, in order to serve out the full incentive contract period in the SELRES. This is provided the unit reenlistment officials have access to the Soldier’s personnel records and are able to verify the Soldier’s eligibility to extend. Two consecutive APFT or body fat standard failures will result in the termination of an incentive. c. Paragraph 10-8 (Termination of incentives) stated once an incentive was terminated the member was not eligible to receive any further incentive payments, except for service performed before the termination date. The termination of an incentive did not affect a Soldier's responsibility to serve their current statutory or contractual service commitment. Reasons for termination of an incentive included: voluntarily moving to a nonbonus unit or MOS and/or failing to extend the contracted term of service for an authorized period of nonavailablity. 4. Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), then in effect, states for paragraph 5–15 (Date of reenlistment) states except as indicated in paragraph 5–16, the date of reenlistment is the date on which the oath of enlistment is administered. The date will be shown on the enlistment record (block 19f, DD Form 4). a. Paragraph 5-16 (Antedating reenlistment) provides, in pertinent part, that when through administrative error, or for the convenience of the Government, the reenlistment of a Soldier has been delayed through no fault of the Soldier an antedated reenlistment agreement may be authorized. b. Chapter 6 (Selected Reserve—Administrative Procedures), paragraph 6-2 (Scope) provides the procedures in this chapter provide for personnel assigned to a unit of the Selected Reserve and who are reenlisting; to continue unit membership or with a concurrent reassignment to the IRR or an IMA position. (1) Paragraph 6-3 (Processing Selected Reserve unit Soldiers for reenlistment and continued membership in Selected Reserve units) states the following: (a) Processing a unit Soldier for reenlistment, with continued membership in a unit of the Selective Reserve, requires the completion and distribution of 2 forms: DD Form 4–series and DA Form 3540 (para 5–6c). (b) The DD Form 4–series will be completed according to table 5–1. The following entry must be entered on DD Form 4/1, in item 8b, REMARKS: “IMMED REENL TPU IAW AR 140–111, CHAP 6.” (2) Paragraph 6-4 (Processing Selected Reserve unit Soldiers for reenlistment in the U.S. Army Reserve with concurrent transfer to the Individual Ready Reserve) states this procedure applies to all Selected Reserve Soldiers who are within 12 months of their current statutory or contractual service obligation (whichever is the later) and desire continuous membership in the USAR, only assigned to the IRR. The losing unit will effect the reenlistment to prevent a break in service. The Soldier must be qualified for reenlistment. He, or she, will reenlist as a TPU Soldier. (3) Table 3-1 (Authorized reasons and periods of extensions), Rule EE, states a Soldier serving on a USAR enlistment with a term of service option per AR 601–210 or this regulation, and agrees to continue participation in a TPU or IMA position to meet 4 year service remaining requirement of Post 9/11 Transfer of Education Benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003784 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1