AR20150009726

IN THE CASE OF:

BOARD DATE: 2 June 2016

DOCKET NUMBER: AR20150009726

BOARD VOTE:

____X_____ ___X____ ____X____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 2 June 2016

DOCKET NUMBER: AR20150009726

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a. Regarding his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), executed on 15 July 2009:

(1) Amending block 5 by changing the date of his reenlistment from
15 July 2009 to 21 May 2007.

(2) Deleting the entry in block 8b that states “THIS CONTRACT EXPIRES
ON (ETS) 20150715” and replace it with “THIS CONTRACT EXPIRES ON(ETS) 20MAY 2014.”

b. Concerning his DA Form 3540, executed on 15 July 2009, in Section XII (Annual Orientation), paragraph 2 (Remarks), subparagraph 2a: delete, “I am reenlisting for 6 years with a bonus amount of $10,000 IAW USAR SRIP list” and replace it with “I am reenlisting for 6 years with a bonus amount of $15,000 IAW USAR SRIP list.”

c. As to his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), executed on 16 July 2014:

(1) Amend block 5 by changing the date of his reenlistment from 16 July 2014 to 21 May 2013.

(2) Delete the entry in block 8b that states “THIS CONTRACT EXPIRES ON (ETS) 20210715” and replace it with “THIS CONTRACT EXPIRES
ON (ETS) 20MAY 2020.”

d. On his USAR Reenlistment Bonus Written Agreement, executed on 16July 2014, Section V (Entitlement), paragraph 2a: delete, “I am reenlisting for 6 years with a bonus amount of $6,000 IAW USAR SRIP list” and replace it with “I am reenlisting for 6 years with a bonus amount of $8,000 IAW USAR SRIP list.”

_____________X____________
CHAIRPERSON

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.

IN THE CASE OF:

BOARD DATE: 2 June 2016

DOCKET NUMBER: AR20150009726

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect:

a. Correction of the date on his reenlistment contract, changing it from 15July 2009 to a date consistent with the terms of his initial enlistment contract; and, based on this correction,

b. Payment of an additional $5,000 in reenlistment bonus (REB).

2. The applicant states, in effect:

* he enlisted in the U.S. Army Reserve (USAR) on 10 December 2004 under a “3×2” contract [sic, his enlistment contract shows he agreed to serve 3 years in a troop program unit (TPU) within the Selected Reserve (SELRES), and 5 years in the Individual Ready Reserve (IRR) (3x5contract)]
* he returned to his home reserve unit after completing advanced individual training and provided all of his records to his unit administrator (UA)
* the UA entered his contract information incorrectly; rather than showing he had enlisted for 3 years, the UA reflected his contract as being 6 years (which would be 6 years in the SELRES and 2 years in the IRR, or a 6x2contract)
* he brought the error to the attention of unit personnel, but his efforts to correct this error were unsuccessful; the REB was $15,000 when he would have been eligible to reenlist
* when his unit personnel finally realized their mistake, the bonus had gone down from $15,000 to $10,000
* he was refused help to correct this, so he contacted the Inspector General (IG)
* he provided all of his paperwork to the IG and he (the IG) found his unit’s UA was at fault due to negligence
* he also provided all of his paperwork to his last four commanders and none of them were able to help him
* all he has been told is “the money is there for you, it is just a matter of time,” but he has been waiting with no results since 2009

3. The applicant provides:

* enlistment documents, dated 10 December 2004
* Certificate and Acknowledgement – USAR Service Requirements and Methods of Fulfillment, dated 10 December 2004
* email, dated 10 March 2009
* reenlistment documents, dated 15 July 2009
* DA Forms 3540 (Certificate and Acknowledgement of USAR Service Requirements and Methods of Fulfillment), dated 15 July 2009
* DA Form 1559 (Inspector General Action Request), dated 22 January 2010, with self-authored letter from the applicant
* letter from the IG to the applicant, dated 6 April 2010
* letter from the IG to the Defense Finance and Accounting Service, dated 6April 2010
* DA Form 2823 (Sworn Statement), by the applicant, dated 29 June 2010
* memorandum, dated 1 September 2010, Subject: Exception to Policy (ETP) on REB [applicant]
* memorandum, dated 14 September 2010, Subject: ETP for [applicant]
* memorandum, dated 8 October 2010, Subject: ETP for [applicant]
* DA Form 4187-1-R (Personnel Action Form Addendum), dated 17 August 2011
* memorandum, dated 25 July 2012, Subject: Request an Antedated Contract for [applicant]
* document, titled Processing Antedated Reenlistments (Effective 10October 2007)
* memorandum, dated 10 December 2007, Subject: First Half Fiscal Year 2008 (FY08) SELRES Incentive Program (SRIP)
* memorandum, dated December 2007, Subject: Removal of the Five-Year Physical Exam Requirement for U.S. Army Reserve Components (RC) Enlisted Soldiers to Reenlist/Extend
* memorandum, dated 10 January 2008, Subject: Change to Army Regulation 140-111 (USAR Reenlistment Program), chapter 2-3b (USAR Indefinite Reenlistment Program)
* memorandum, dated 11 January 2008, Subject: FY08 SRIP – Army Reserve
* All Army Activities (ALARACT) message, dated 6 February 2008, Subject: The Army RC REB – Deployed/Location Program
* memorandum, dated 4 March 2008, Subject: Approval of RC Second Half FY08 SRIP Plans
* memorandum, dated 28 March 2008, Subject: Army Reserve FY08 2nd Half SRIP Policy Guidance from 1 April through 30 September 2008
* memorandum, dated March 2009, Subject: SRIP Change for REB

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant enlisted in the USAR on 10 December 2004.

a. His official military personnel file (OMPF) includes a document titled the Certificate and Acknowledgement – USAR Service Requirements and Methods of Fulfillment and dated 10 December 2004.

b. On this form, he acknowledged his service obligation in the USAR was 8years, and he agreed to serve 3 of those years in a TPU within the SELRES, with the remaining 5 years in the IRR.

3. He was ordered to initial active duty for training on 13 January 2005, and was released from active duty (REFRAD) on 20 May 2005.

a. Item 6 (Reserve Obligation Termination Date) stated 9 December 2012 (reflecting 8years from date of initial enlistment).
b. Item 9 (Command to Which Transferred) shows the TPU to which he was being transferred.

c. Item 11 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates his military occupational specialty (MOS) was 91E (Dental Specialist, later redesignated as MOS 68E).

d. Based on his successful completion of MOS training, his 3 year service obligation assigned to a TPU was effective on his REFRAD date, and his expiration of term of service (ETS) became 20 May 2008.

4. His OMPF also contains a DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), showing he reenlisted in the SELRES. Block 5 (Date of Enlistment/Reenlistment) lists a reenlistment date of 15 July 2009.

a. In item 8b (Remarks) it states the contract expires on 15 July 2015.

b. Associated with this reenlistment is a DA Forms 3540, also dated 15 July 2009. On the DA Form 3540 he affirmed he was reenlisting:

* to continue his membership in the USAR
* for a term of 6 years would receive a REB amount of $10,000 in accordance with the USAR SRIP List

5. He was promoted to sergeant (SGT)/E-5 on 1 September 2009.

6. Based on documents provided by the applicant, he requested assistance from the IG to correct his records and permit him to receive an additional $5,000 in REB compensation. The IG responded in a memorandum, dated 6April 2010, and essentially affirmed the applicant was, by his enlistment DD Form 4, eligible to have reenlisted in December 2007. An administrative error caused the applicant to be denied the higher REB.

7. On 1 September 2010, the USAR Medical Command requested an exception to policy on behalf of the applicant that would permit him to receive the additional $5,000 in REB. On 14 September2010, the USAR Command (USARC) Deputy Chief of Staff, G-1, returned the request without action. The USARC G-1 official advised the applicant to request an antedated contract to correct the error.

8. On 8 October 2010, the applicant requested his chain of command to antedate his July 2009 reenlistment contract.
9. On a17 August 2011 signed DA Form 4187-1-R, the applicant’s UA recommended approval of the applicant’s request to antedate his July 2009 reenlistment contract, and forwarded the request to the USARC, G-1. The applicant’s OMPF is void of any response to this request.

10. On 25 July 2012, the applicant’s unit commander requested an antedated contract on his behalf. There is no record of any response to this request.

11. On 16 July 2014, the applicant again reenlisted for a term of 6 years in the SELRES. He was a sergeant/E-5 at the time. He is currently serving in an Active GuardReserve Status in the rank/grade of staff sergeant/E-6. Associated with this reenlistment is a USAR REB Written Agreement, in which he confirms, by reenlisting for 6 years, he would receive an REB of $6,000.

12. In an email, dated 25 May 2016, an official from USARC Careers Division stated the following, in summary:

a. The memorandum generated by the USARC, G-1, dated 14 September 2010, incorrectly advised the applicant to request an antedated contract. The correct solution would have been to modify block 5 of his DD Form 4 from 15 July 2009 to 21 May 2007 (which would be his earliest date of reenlistment (EDOR)).

b. The SRIP guidance in effect in May 2007 permitted an REB of $15,000.

c. An additional consideration is that the applicant reenlisted again on 16July 2014. With the correction of the DD Form 4, changing the date of reenlistment from 15 July 2009 to 21 May 2007, this reenlistment is also affected.

* his ETS for the 15 July 2009 contract was 15 July 2015
* adjusting the 15 July 2009 contract to 21 May 2007 changes his ETS to 20 May 2014 (a difference of 1 year, 1 month, and 26 days)
* the difference can be addressed by requiring USARC to generate an antedated contract, or to also amend the date of the 16 July 2014 contract
* amending the date of the contract would entail adjusting the date to 21May 2013 (EDOR based on adjusted ETS of 20 May 2014)

d. Should the date of his last contract be changed, the SRIP guidance in effect in May 2013 would make him eligible for an additional $2,000 in REB for this reenlistment.

REFERENCES:

1. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, USAR, and Army National Guard.

2. Army Regulation 135-7 (Incentive Programs) restricts the SRIP to those Reservists who either enlist or reenlist for a skill or unit approved by the Department of the Army (HQDA). HQDA disseminates the list of qualified MOS’ and units to the field, and provides updates periodically.

3. ALARACT 242/2005, dated 22 November 2005, Subject: Change in Reenlistment Policy for the Army Reserve, stated, effective this message, the USAR no longer executed immediate reenlistments. The date of reenlistment takes effect the day following the expiration date of the current USAR service agreement. As an example, if the expiration date is 31 October, the date the reenlistment would take effect would be on 1 November.

4. The Army Reserve, FY 2007 2nd Half SELRES SRIP, effective 1 May 2007, showed MOS 68E was eligible for a $15,000 REB when the Soldier reenlisted for 6years.

5. The Army Reserve, FY 2013 2nd Half SELRES SRIP, effective 1 April 2013, showed Soldiers in the grade of E-5 with the MOS 68E were eligible for an $8,000REB when they reenlisted for 6years.

6. Army Regulation 140-111 (USAR Reenlistment Program) outlines procedures for antedating reenlistment contracts. An enlisted Soldier may not be held in service beyond the normal ETS, unless the ETS is extended by law. 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, the Commander, U.S. Army Human Resources Command may authorize the reenlistment agreement to be antedated.

7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military
Records (ABCMR). It is based upon the provisions of Title 10, U.S. Code, Section 1552. Paragraph 3-1 states the Army, by law, may pay claims for amounts due to applicants because of correction of military records.

DISCUSSION:

1. The applicant requests correction of his first reenlistment contract and, based on that correction, payment of an additional $5,000 in REB.

a. He contends his UA incorrectly reflected his initial enlistment as a 6×2 term of service when, in fact, he had signed a 3×5 contract. This error prevented him from receiving a $15,000 REB for which he would have been eligible. Instead, he was paid a 10,000 REB. He sought to correct the error without success.

b. The IG confirmed an error had occurred, but corrections were made. The evidence offered by the applicant also indicates his chain of command attempted to fix the mistake, without success.

2. Both the evidence of record and that which he provides confirm he signed a 3×5, not a 6×2 contract, and was eligible to reenlist on or around 21May 2008. He reenlisted instead on 15 July 2009. The evidence also shows, had he reenlisted as permitted by his contract, he would have been eligible for a $15,000 REB instead of the $10,000 that he received. It appears he acted in good faith and fulfilled his obligations under his enlistment contract. The errors that occurred were beyond his control, and resulted from mistakes made by his unit’s administrative staff. As such, it would be appropriate to change block 5 of his first reenlistment contract to show it took place on 21 May 2007 (EDOR) instead of 15 July 2009. This also changes the contract expiration date from 15 July 2015 to 20 May 2014.

3. The applicant has since reenlisted a second time, on 16 July 2014. The correction to block 5 of his 15 July 2009 reenlistment contract affects this second reenlistment, as it took place almost 2 months after his corrected ETS. There are two options available to correct this gap.

a. The first would require the USARC to generate an antedated contract to cover the time.

b. The second would entail adjusting the date of the contract to align with an EDOR that would have been used, had his second reenlistment been properly executed.

(1) It appears the second option would be the most appropriate from both the standpoint of administrative correctness, and as a matter of equity.

(2) Additionally, the second option permits the applicant to be eligible for an additional $2,000 in REB compensation, money he would have received, had his first reenlist occurred in conformance with his initial enlistment contract.

4. Based on the foregoing, there appears to be sufficient evidence to support the requested relief.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009726

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009726

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2