BOARD DATE: 25 February 2014 DOCKET NUMBER: AR20140001331 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 correction of his records to show entitlement to the $20,000.00 Student Loan Repayment Program (SLRP) that he contracted for upon enlistment in the Army National Guard (ARNG). 2. The applicant states the National Guard Bureau (NGB) rejection letter states that his request for exception to policy (ETP) was denied because he was not Duty Military Occupational Specialty Qualified (DMOSQ) at the time of his enlistment. Neither the SLRP Addendum nor the Selective Reenlistment Incentive Program (SRIP) policy letter, then in effect, indicates that an enlistee with his status as a non-current ARNG, prior service enlistee must be DMOSQ. a. The SRIP policy letter states current ARNG Soldiers who are reenlisting or extending must be DMOSQ. However, he was enlisting in the ARNG for the first time to become a Soldier after a 3-year break in service subsequent to serving on active duty as a U.S. Marine. (1) In addition, he was told he was DMOSQ at the time of enlistment and he would be eligible for promotion when he met the time-in-grade requirement, which was 18 months. (2) On 27 March 2007, an MOSQ Waiver Rejection letter was issued. However, he was unaware that a waiver had been requested and he was not made aware of the letter until much later. (3) Just prior to completing 18 months service (in the fall of 2007), he inquired about his promotion and was informed that he was not DMOSQ. He took immediate action and asked the training noncommissioned officer (NCO) to enroll him in Phase 1 training for MOS 88M (Motor Transport Operator) and then in Phase 2 training for the MOS. b. His original request for ETP was approved by NGB on 12 February 2013. Eight months later he was told NGB changed its decision based on denial of a request for DMOSQ waiver that was submitted on his behalf when he enlisted. He adds that the documentation was produced nearly 1 year after he enlisted in the ARNG. The NGB ETP letter also indicates the denial was based on several administrative errors, such as signatures and dates that were made by the enlisting official and not due to his fault. These administrative errors were not deemed significant when his request for an ETP was first approved by NGB on 12 February 2013. In fact, he was found qualified for the SLRP benefit and served his entire 6-year contract in good faith. c. The approved ETP indicates that he received $15,000.00 in SLRP payments for loans totaling $15,861.00 that existed prior to his enlistment. He accepts the fact that he was overpaid based on the 15% maximum annual payment rule and he does not take issue with NGB recouping $752.52 as a result of this overpayment. d. He was told by the State Incentives Manager (IM) that the reason for the denial of his request for an ETP was a direct result of the approved ETP that involved applying an overpayment to his final (sixth) year of SLRP eligibility, which requires approval from NGB. However, instead of approving or denying that one portion as an ETP, NGB decided to reject the entire request for an ETP, despite the fact that he was DMOSQ qualified. 3. The applicant provides copies of his SLRP enlistment documents, SRIP policy letter, NGB ETP letters, and student loan documents. CONSIDERATION OF EVIDENCE: 1. Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) show the applicant had honorable active duty enlisted service in the U.S. Marine Corps as follows: * from 23 August 1993 through 18 February 2001 - he had completed: * 7 years, 5 months, and 26 days of net active service this period * 3 months and 4 days of total prior inactive service * Item 11 (Primary Specialty) shows, in part: * 3531, Motor Vehicle Operator, 6 years, 10 months * Item 14 (Military Education) shows, in part: * Motor Vehicle Operations Course, 7 weeks, 1994 * Motor Transport Operations NCO Course, 4 weeks, 1997 * from 2 August 2001 through 1 April 2003 - he had completed * 1 year and 8 months of net active service this period * 7 years, 5 months, and 26 days of total prior active service * 8 months and 18 days of total prior inactive service * Item 11 shows, in part: * 3531, Motor Vehicle Operator, 8 years, 11 months * 3537, Motor Transport Operator Chief, 2 years, 5 months * Item 14 shows, in part: * Motor Transport Operations, 1997 * Motor Vehicle Operator, 1994 2. A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) was prepared by the recruiter on the occasion of processing the applicant for his entrance into the ARNG on 8 April 2006. Section B (Agreements), item 8, shows, "I am enlisting/reenlisting in the United States ARNG [and Minnesota ARNG (MNARNG)] this date for 6 years beginning in pay grade E-5. The additional details of my enlistment/reenlistment are in Section C and Annex(es) 'Bonus Annex D and J'." [A DA Form 4187 (Personnel Action), dated 16 May 2006, corrected the applicant's DD Form 4, as follows: "Bonus Annex D and J" corrected to read "Annex X and Annex S."] a. Annex A to DD Form 4 (Enlistment/Reenlistment Document - ARNG) shows the applicant acknowledged with his initials and signature that he had prior military service, he had no military service obligation, and that he understood he would undergo training in MOS 88M. b. Annex S to DD Form 4 (SLRP Addendum - ARNG of the United States (ARNGUS)) shows the applicant was enlisting in a valid position vacancy in the critical skill MOS 88M that Headquarters, Department of the Army, authorized for the SLRP. He acknowledged that he must remain in the contracted MOS for the first 3 years of his enlistment contract. (1) He acknowledged that he had 3 existing loans in the disbursed amount of $17,551.20 and the total amount of repayment for qualifying loans will not exceed $20,000.00. (2) Section V (Termination) outlines the circumstances when SLRP eligibility will be terminated and shows, in part, "If I fail to become MOS qualified within 24 months after unit inactivation, reorganization, or relocation." * the Addendum shows SLRP Control Number S06040007MN * the applicant and IM signed the Addendum on 11 June 2006 * the Addendum does not contain a signature of an enlisting official c. Annex X to DD Form 4 and DA Form 4836 (Prior Service Enlistment Bonus (PSEB) Addendum - ARNGUS) shows that upon enlistment in the ARNGUS the applicant is eligible for a PSEB under the SRIP, if he meets the criteria outlined. * the Addendum shows Bonus Control Number P069040003MN * the applicant and IM signed the Addendum on 11 June 2006 3. Joint Force Headquarters - Minnesota, Office of the Adjutant General, Saint Paul, MN, Orders 257-1003, dated 13 September 2008, awarded the applicant primary MOS (PMOS) 88M2O effective 6 September 2008. 4. On 27 June 2010, the applicant extended his enlistment for a period of 1 year for the duration of his deployment and to receive Deployment Extension Stabilization Pay while deployed. 5. Joint Force Headquarters - Minnesota, Office of the Adjutant General, Saint Paul, MN, Orders 191-1002, dated 10 July 2011, promoted the applicant to staff sergeant (E-6) and awarded him PMOS 88M3O effective 15 July 2011. 6. The applicant's DA Form 2-1 (Personnel Qualification Record), prepared on 22 January 2011, shows in: a. section VI (Current and Previous Assignments - Record of Assignments), beginning 8 April 2006, the applicant served in Duty MOS 88M2O (Heavy Vehicle Driver) while serving in two different ARNG units and b. item 17 (Civilian Education and Military Schools) he completed training for MOS 88M (Phases 1 and 2) in 2008. 7. Three DA Forms 2166-8 (NCO Evaluation Reports), that cover the period 8 April 2006 through 30 November 2008, show the applicant served as a squad leader of a transportation platoon (DMOS 88M3O) and as a heavy vehicle transporter (DMOS 88M2O). All three of the reports show he performed capably and successfully. 8. NGB, Arlington, VA, memorandum, dated 15 August 2012, subject: Request for ETP for PSEB, approved an ETP for the applicant to retain a $15,000.00 PSEB offered at the time of his enlistment on 8 April 2006. The explanation given for the approval shows, in part, "Although the applicant failed to initial Section III of the addendum and it was dated after the date of enlistment, a review of the DD Form 4 and DD Form 1966 supports an incentive being offered at the time of enlistment. (Applicant) accepted an incentive offer made by the MNARNG in good faith and has otherwise fulfilled his obligations under the contract as of the date of this request. Therefore, withholding payment of this incentive would be contrary to equity and good conscience and against the best interest of the Army." 9. In support of his application, the applicant provides the following documents: a. NGB, Arlington, VA, memorandum, dated 12 February 2013, subject: Request for ETP for SLRP, approved an ETP for the applicant to retain the $20,000.00 SLRP offered at the time of his enlistment on 8 April 2006. (1) The ETP was granted for the following discrepancies: * the contract/bonus addendum contains administrative issues * the applicant was paid on unauthorized loans (2) It also shows that, although the applicant and witnessing official failed to either sign and/or date the SLRP Addendum, the Bonus Control Number supports an incentive being offered at the time of the enlistment contract. However, a review of SLRP payments processed were found to have been overpaid by $3,104.60 for loans disbursed after the applicant enlisted. (3) It further shows the applicant was eligible for a final payment for FY12. Therefore, the FY12 payment was to be subtracted from the previous overpayment leaving a final recoupment amount of $752.52. b. NGB, Arlington, VA, memorandum, dated 30 December 2013, subject: Second Review Request for ETP for SLRP, denied an ETP for the applicant to retain the $20,000.00 SLRB offered at the time of his enlistment on 8 April 2006. (This ETP superseded the Request for ETP for SLRP, dated 12 February 2013.) (1) The Request for ETP was denied for the following discrepancies: * the applicant was not DMOSQ for the contracted incentive * incentive addendum contains a missing signature from the enlisting official * the applicant was paid on unauthorized loans (2) It also shows the applicant was not DMOSQ for MOS 88M upon enlistment and that he completed training for MOS 88M on 6 September 2008. Therefore, since he was in violation of the DMOSQ requirement, all previous payments were not authorized and the applicant's request to retain the incentive was denied. c. National Student Loan Data System and Spreadsheet pertaining to the applicant's student loans that show: * the student loans that qualified for the SLRP * two student loans that did not qualify for SLRP * the total SLRP paid (as of an unspecified date) was $15,000.00 * a total overpayment of $3,104.60 * $725.52 to be recouped with no FY12 payments to offset overpayment 10. Army Regulation 135-7 (Incentive Programs), in part, restricts the SLRP to those Reservists who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOSs and units, which is updated every 6 months. This educational incentive may only be elected at the time of enlistment or reenlistment. a. Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date. Any qualifying loan which is at least a year old may then be paid in accordance with the terms of this educational enlistment incentive. b. The incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment. These payments continue on a yearly basis unless the Soldier loses eligibility. 11. NGB Arlington, VA, memorandum, dated 3 February 2006, subject ARNG Fiscal Year 2006 (FY06) SRIP Policy Guidance for 27 January 2006 through 31 May 2006 (Policy Number 06-05) superseded all previous SRIP policies for FY06. Paragraph 5k outlines SLRP eligibility criteria for prior service and current enlistees and as an extension incentive. It shows, in pertinent part, "Current ARNG Soldiers must also meet all of the following requirements" and includes, "Must be MOSQ for the position for which enlisting or extending." The attached ARNG FY 06 MOS List (27 January 2006 - 31 May 2006) lists the "NGB 'Top Ten' Critical Skills" and shows, in pertinent part, MOS 88M. 12. Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following: a. contrary to a personnel policy or management objective; b. against equity and good conscience; or c. contrary to the best interest of the United States. DISCUSSION AND CONCLUSIONS: 1. Records show the applicant enlisted in the MNARNG on 8 April 2006 for a period of 6 years and his enlistment agreement included the SLRP. He indicated that he had existing student loans in the amount of $17,551.20. (He extended his enlistment a period of 1 year for deployment purposes.) 2. There is no indication in the available enlistment documents that shows the applicant was required to be DMOSQ upon enlistment as a prior service, non-current ARNG Soldier nor is there an MOSQ waiver rejection letter. a. Records show that during his prior military service in the U.S. Marine Corps, the applicant qualified as a Motor Vehicle Operator (i.e., 8 years and 11 months) and as a Motor Transport Operator (i.e., 2 years and 2 months). Records also show, beginning from the date of his enlistment in the ARNG, he was assigned to duty positions in MOS 88M, in which he performed successfully. b. The evidence of record shows, on 6 September 2008, the applicant was afforded DMOSQ status following his completion of the Army training course for MOS 88M. 3. On 12 February 2013, more than 10 months after his 6-year enlistment agreement had expired, the NGB approved a request for ETP for SLRP for the applicant to retain (emphasis added) the $20,000.00 SLRP offered at the time of his enlistment on 8 April 2006. At that time, the NGB recognized that the applicant's enlistment contract/bonus addendum contained minor administrative errors; however, there is no indication in the ETP granted by NGB that the applicant was not entitled to the SLRP incentive. (Note: The NGB ETP found an overpayment of $3,104.60 for loans disbursed after the applicant enlisted and action was taken to recoup the overpayment.) 4. In view of the foregoing, it is reasonable to conclude that ARNG officials recognized the applicant was DMOSQ in 88M from the date of his enlistment based on the extensive training and experience he possessed and brought to the ARNG from his prior military service in the U.S. Marine Corps where he served in a similar specialty in the transportation corps. 5. Then, on 30 December 2013, more than 10 months after the NGB had approved the ETP for SLRP, and more than 1 year and 8 months after the applicant fulfilled the terms of his 6-year enlistment agreement, the NGB superseded its previous decision and denied the SLRP incentive because the applicant was not DMOSQ for the contracted incentive, the enlisting official's signature was missing from the SLRP addendum, and due to the previously addressed overpayment made to the applicant. 6. Records show MOS 88M was listed as one of the "NGB 'Top Ten' Critical Skills" at the time of the applicant's enlistment. In addition, his SLRP Addendum contains a SLRP Bonus Control Number and the signature of the State IM. The fact that the enlisting official failed to sign the SLRP Addendum merely offers evidence of an administrative oversight on the part of the government and was due to no fault of the applicant. Moreover, these administrative errors on the SLRP Addendum were previously deemed to be inconsequential. 7. The explanation given by NGB for the approval of the applicant's Request for ETP for PSEB is also applicable with respect to the SLRP. That is, a review of the applicant's enlistment documents supports an incentive being offered at the time of enlistment. It goes on to state, "He accepted an incentive offer made by the MNARNG in good faith and has otherwise fulfilled his obligations under the contract. Therefore, withholding payment of this incentive would be contrary to equity and good conscience and against the best interest of the Army." 8. Thus, based on the circumstances surrounding this case, it would be in the best interest of the government to allow the applicant to retain the $20,000.00 SLRP incentive. 9. Therefore, in view of all of the foregoing, the applicant's records should be corrected as recommended below. BOARD VOTE: ___X_____ ___X_____ __X__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and state Army National Guard records of the individual concerned be corrected by: a. showing he enlisted in the Army National Guard of the United States and Minnesota Army National Guard on 8 April 2006 for a period of 6 years with the $20,000.00 Student Loan Repayment Program incentive based on qualification in bonus MOS 88M and that all addenda were properly and timely signed by appropriate officials; b. voiding National Guard Bureau, Arlington, VA memorandum, dated 30 December 2013, subject: Second Review Request for Exception to Policy for Student Loan Repayment Program (pertaining to the applicant); and c. confirming the continued validity of National Guard Bureau, Arlington, VA, memorandum, dated 12 February 2013, subject: Request for Exception to Policy for Student Loan Repayment Program (pertaining to the applicant). 2. As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination regarding the applicant's entitlement to the $20,000.00 Student Loan Repayment Program incentives. __________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. ABCMR Record of Proceedings (cont) AR20140001331 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140001331 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1