IN THE CASE OF BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150003505 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: The applicant, in effect, defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests correction of the applicant's military records to show he remains eligible for payment of his $6,000 Stafford loan under the Student Loan Repayment Plan (SLRP). 2. Counsel states that: a. Following the terrorist attacks on 11 September 2001 the applicant was completing his enlistment in the California Army National Guard (CAARNG) and intended to complete his military service and concentrate on his civilian career as a police officer. b. In response to the 9/11 attacks, as a matter of patriotism, he reenlisted in the CAARNG on 26 October 2001. c. At the time of his enlistment he was told by his unit recruiting/retention officer that he was eligible for the 2001 SLRP incentive to repay his college Stafford loan. d. In conjunction with his reenlistment in the CAARNG a National Guard Bureau (NGB) Form 600-7-5-R-E (Student Loan Repayment Program Addendum – Army National Guard of the United States) was completed showing he was eligible for the repayment of a $6,150 student loan. A bonus control number is listed. e. Following his reenlistment his unit was deployed to Iraq in support of Operation Iraqi Freedom. He was on convoys and experienced combat including firefights and improvised explosive devices. He received numerous commendations and awards. He served faithfully for the 6 years of the contract. f. In February 2009, after years of suffering, he was diagnosed by the Department of Veterans Affairs (VA) with post-traumatic stress disorder (PTSD). Due to the PTSD, he was no longer able to pursue his civilian career as a police officer. He continued to serve in the CAARNG until 2013, when his PTSD forced him into medical retirement. g. In July 2012, approximately 1 year before his retirement, he was sent a Request for Documentation from the CAARNG Incentves Task Force requiring him to justify the 2001 SLRP incentive. h. The Incentives Task Force was investigating the conduct of the CAARNG Bonus and Incentives Manager. Due to that misconduct, the CAARNG was uncertain whether hundreds of Soldiers had received proper or improper bonuses. Unjustly, the burden of proving those enlistment incentives had been placed on the individual Soldiers. i. On 11 September 2012, with the help of the CAARNG Legal Office, he submitted an exception to policy (ETP) request to retain the SLRP eligibility. j. On 23 May 2013, the NGB issued an Incentive Notice of Indebtedness asserting he was ineligible for the SLRP and subject to recoupment. k. On 18 June 2013, he submitted a handwritten response to an indebtedness notice. The CAARNG Task Force reviewed the matter and on 11 September 2013, submitted a recommendation to the NGB that an ETP be granted in his favor. l. On 21 July 2014, NGB denied the ETP and directed the State Incentives Manager to terminate the SLRP incentive with recoupment. m. The 21 July 2014 NGB denial memorandum contains errors. The NGB's review and conclusions reveal a careless, arbitrary and cavalier attitude towards a loyal Soldier, who served honorably and faithfully, and sacrificed for his country. n. Even if he was not technically eligible, it would be unjust to accept his faithful service (resulting in combat-induced PTSD which cost him his military career and civilian law enforcement career, and continues to cost him and his family on a daily basis) and wait more than 10 years to claim that technical discrepancies justify recoupment. o. He reasonably relied on the knowledge and expertise of those responsible for issuing, processing, and approving the incentive bonus. p. He gave 6 years of service on the promises by, paperwork prepared by, and multiple levels of approval by the CAARNG chain of command. 3. Counsel provides: a. Reenlistment documents, dated 26 October 2001, for reenlistment and bonus and SLRP incentive. b. Four letters recommending the applicant for a direct commission. c. DD From 214 (Certificate of Release or Discharge from Active Duty) for the period 11 February 2002 to 5 July 2004. d. VA Rating decision, dated 12 February 2009. e. Loan documents. f. CAARNG Memorandum, subject: Request for Documentation Supporting Your Incentives, dated 20 July 2012. g. U. S. District Court plea agreement pertaining to Master Sergeant (MSG) Toni L. J____ (the previous CAARNG Bonus and Incentives Manager). h. The applicant's ETP request to retain the SLRP. i. Extract from Title 10, US Code, section 16301, Training for Reserve Components and Education Assistance Programs, chapter 1609 (Education Loan Repayment Programs). j. Army Regulation (AR) 135-7 (Incentive Programs). k. National Guard Regulation (NGR) 600-7 (Selected Reserve Incentive Programs). l. Military education documents. m. NGB memorandum, subject: Selected Reserve Incentive Programs Policy Guidance for 1 October 2001 (Policy Number 02-01 for Army National Guard Soldiers), undated. n. NGB memorandum, subject: Changes to Policy for the SLRP for the Army National Guard, (Policy Number 02-02 for Army National Guard Soldiers), dated 15 November 2001. o. Three Records of Proceedings (ROPs) for Soldiers granted relief to retain eligibility for the SLRP incentive. p. NGB denial of the applicant's ETP request to retain SLRP eligibility. CONSIDERATION OF EVIDENCE: 1. The applicant retired from the ARNG as a master sergeant on 14 November 2013. 2. Two DA Forms 4836, dated 26 October 2001, wherein he extended his service for a period of 3 years each. He contracted to receive a $2,500 bonus and repayment of a student loan in the amount of $6,150. Bonus control numbers were included on each form and Captain (CPT) William M________, signed both the forms as the Enlisting Official. 3. A CAARNG memorandum, subject: Request for Documentation Supporting Your Incentives, dated 20 July 2012, notified him that the CAARNG had audited his bonus and SLRP incentive payments and noted a discrepancy. His assistance was requested to resolve the discrepancy. The payments were noted to be in violation of federal law and NGB policy. He was advised he was eligible for an ETP and he should contact the CAARNG Incentives Task Force for detailed information. 4. On 11 September 2012, the applicant requested an ETP to allow him to retain eligibility for the SLRP. 5. A 23 May 2013 NGB memorandum, subject: Incentive Notice of Indebtedness Ref TL#20130861RC), notified the applicant he was indebted to the U. S. Government because he received SLRP funds in the amount of $7,040.00 erroneously. The applicant provided a handwritten response indicating he would submit a request for a waiver of the debt. 6. On 11 September 2013, the CAARNG Incentives Task Force provided a memorandum recommending his ETP be granted to allow him to retain SLRP eligibility. 7. A 21 July 2014 NGB memorandum, subject: Request for ETP for SLRP, notified the CAARNG State Incentive Manager that the ETP request was denied. 8. A Principal Deputy Under Secretary of Defense memorandum delegates to the Secretary concerned a determination on a case-by-case basis that bonus repayment will not be required, if it is determined that such repayment would be contrary to a personnel policy or management objectives, against equity and good conscience, or contrary to the best interest of the United States. DISCUSSION AND CONCLUSIONS: 1. The evidence of record clearly shows the applicant entered into a contract with the understanding he was entitled to and would receive the SLRP. 2. The contract includes a bonus control number and is signed by the appropriate official. 3. It seems unjust for NGB to terminate his SLRP after he fulfilled the extension of enlistment period. Therefore, notwithstanding the ETP denial and in view of the facts of this case, it would be appropriate at this time and serve the interest of justice and equity to correct the applicant's record to show his request for an ETP was approved and allow him to retain SLRP eligibility. Any monies recouped should be returned to him. 4. In view of the above, the applicant's request should be granted. BOARD VOTE: ___X_____ ___X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 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 showing the appropriate authority approved an ETP allowing the applicant to remain entitled to payment of his student loan under the SLRP. _____________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) AR20110020775 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003505 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1