IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150005356 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, termination of recoupment of payments made on his behalf under the Student Loan Repayment Program (SLRP). 2. The applicant states: a. The North Dakota Army National Guard (NDARNG) has terminated his SLRP with recoupment of the $12,000.00 already paid out. The ARNG states that he needs to repay the $12,000.00 because he did not serve in the contracted military occupational specialty (MOS) of 12N (Horizontal Construction Engineer). He served his entire enlistment in his primary MOS (PMOS) of 12N with no breaks in service. He was drilling with the 818th Engineer Company at the time of his expiration of term of service (ETS). He reenlisted with them for MOS 12N. b. His military records show his PMOS was 12N3O, the same MOS for which he received the SLRP incentive. He deployed to Iraq in support of Operation Iraqi Freedom (OIF) from 2004 to 2005 with the 1st Battalion, 189th Aviation Regiment. When he returned from Iraq in 2005, he moved to ND because he had been laid off from his former job in Montana (MT) while he was deployed. His wife and daughter had moved to ND during his deployment to be with family. c. He attempted to join the aviation unit in Bismarck, ND, when he moved there. He was told that they were in the middle of reorganization and no slots were available. He spoke with different units and located an E-6 slot in the 818th Engineer Company in Dickinson, ND. He was told the slot belonged to another Soldier who was deployed to Iraq at the time and it was not a hard slot. d. In 2007, he was contacted by his former unit and asked if he wanted to join the 2nd Battalion, 285th Aviation Regiment, and deploy with them to Iraq. He had flown with Company C, 1st Battalion, 189th Aviation Regiment, a unit from Arizona (AZ). This unit became the 2nd Battalion, 285th Assault Battalion, and they were deploying to Iraq in 2009. He was transferred to this unit in 2007. e. During the June 2008 annual training/pre-deployment training he was seriously injured in a military training accident and nearly lost his life and the use of his legs. He was unable to attend any monthly drills until April 2009. At that time he was on light duty. He was cleared for regular duty in July 2009 and was unable to deploy to Iraq. At this time he contacted the 818th Engineer Company and was told there weren’t any E-6 slots available. f. In October 2009, he was alerted that he would be deploying with the 1st Battalion, 112th Aviation Battalion, for Kosovo Force (KFOR) 15. The pre-deployment training began in 2010 and he deployed in September 2011. He returned from KFOR 15 in September 2012 and attended all of the mandatory post-deployment briefings and trainings. In January 2013, he was reassigned from the 1st Battalion, 112th Aviation Battalion, to the 2nd Battalion, 285th Assault Battalion. He spoke with the engineering unit to see if there were any E-6 openings and he was told that there were none. His ETS was in May 2013 and he completed the remainder of his enlistment with the 2nd Battalion, 285th Assault Battalion. g. He has not received his SLRP for 2 years. He telephoned Staff Sergeant BXXXXX in May 2013, who advised him of the amount he would have been awarded and that he would have been notified in June 2013. He submitted an exception to policy (ETP) request which was denied. He received a copy of his reenlistment contract and discovered he had not initialed Section V (Termination with Recoupment) of the National Guard Bureau (NGB) Form 600-7-5-R-E (Annex L to DD Form 4, SLRP Addendum, ARNG) stating that he understood the contents thereof. Each year he submitted all of the required documents for his SLRP and it was approved. If there was an issue, he wonders why was it not caught by his unit or the State Benefits Office, especially since he contacted the State Benefits Office regarding this matter. h. When he was gathering documents for his appeal he contacted the State Benefits Office and requested copies of his DD Forms 2475 (Department of Defense (DoD) Loan Repayment Program Annual Application). He was told they didn't have any copies and that all of the forms had been submitted to the contracted financial institutions. The full amount of $12,000.00 will financially devastate his family as they are living paycheck to paycheck and he would be unable to repay the amount owed. He has served this country and the ARNG with honor and distinction. 3. The applicant provides copies of the following: * DA Form 2-1 (Personnel Qualification Record – Part II) * Enlisted Record Brief * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * NGB Form 600-7-5-R-E (Annex L to DD Form 4, SLRP Addendum, ARNG) * Orders Number 241-112 * DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 8 October 2012 * Orders Number 012-438 * His ETP request * Request for ETP for SLRP memorandum * NDARNG Notification of ETP Decision memorandum CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 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 the cases 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. 2. The applicant enlisted in the MTARNG on 15 November 2002, with prior U.S. Army Reserve enlisted service. He completed training and was awarded MOS 92F (Petroleum Supply Specialist). He reenlisted in the MTARNG on 10 February 2003. 3. He entered active duty in support of OIF on 6 September 2004. He served in Iraq from 1 January through 20 November 2005. He was released from active duty on 6 December 2005. 4. Orders Number 160-1, issued by Headquarters, 164th Engineer Battalion (Mechanized), NDARNG, on 9 June 2006, awarded him PMOS 21N3O (Heavy Vehicle Driver) effective the same day. 5. He was transferred to the NDARNG on 10 February 2006. 6. Orders Number 251-36, issued by Headquarters, 164th Engineer Battalion (Mechanized), NDARNG on 8 September 2006, reassigned him to the 816th Engineer Company (Horizontal) in PMOS 21N3O effective 11 September 2006. 7. A DA Form 4836, dated 27 October 2006, shows he extended his 10 February 2003 reenlistment for 6 months in the NDARNG. His new ETS was established as 13 May 2014. The form states in Item 8 (Provisions and Computation of this Extension) – "I understand I am eligible for the following bonus: Retention Bonus and SLRP. I accept the following bonus: Retention Bonus and SLRP." This section contains his initials. 8. On 27 October 2006, he executed Annex L for the SLRP under the Selected Reserve Incentive Program (SRIP) in the amount of $20,000.00. The addendum states and contains his initials in: a. Section II (Eligibility): (1) "I am currently a Soldier in the ARNG and I am reenlisting/extending for a minimum of term of service of 3 years in the ARNG." (2) "I am reenlisting/extending in MOS 21N3O that is authorized for SLRP" (emphasis added). (3) "I have read Section II and understand the contents thereof." b. Section V: (1) "I understand that my SLRP will be terminated if I voluntarily transfer out of my contracted MOS or fail to become MOS qualified within 24 months after unit inactivation, reorganization, or relocation. (2) "I have read Section V and understand the contents thereof" (this section does not contain his initials). c. Section VII (Authentication) which contains the applicant's printed and signed name and date signed, the enlisting officer's printed and signed name and date signed, and an SLRP Control Number. 9. A DA Form 2166-8 for the period from 1 November 2010 through 31 October 2011, shows his principal duty as Section Chief, in duty MOS 92F, with the 112th Aviation Battalion. 10. Orders Number 027-001, issued by Headquarters, 1th Battalion, 112th Aviation Battalion on 27 January 2011, awarded him PMOS 12N30 effective 27 January 2011. 11. He entered active duty 22 September 2011 for KFOR mobilization. He served in Kosovo from 31 October 2011 through 6 September 2012. He was released from active duty on 8 October 2012 and transferred to the NDARNG. 12. Item 11 (Primary Specialty) of his 2012 DD Form 214 lists MOS 12N3O and 92F3O. 13. Orders Number 012-438, issued by the NDARNG on 12 January 2013, transferred him from the 112th Aviation Battalion to the 2nd Battalion, 285th Assault Helicopter Regiment, in MOS 92F. 14. In a request for an ETP for retention of the SLRP, the applicant stated he had reenlisted in the NDARNG for MOS 21N. He transferred to the aviation unit in Bismarck, ND, and accepted a hard slot with the 2nd Battalion, 285th Assault Battalion, as the Refuel Section Sergeant. He had already held MOS 92F and had performed in this MOS. At the time of his transfer into the 285th, the 92F MOS had the same SLRP incentive as that of the 21N MOS. In the course of his transfer and while his records were being reviewed, the matter was not brought to his attention. He was not told that he would lose any of his benefits if he transferred into another MOS. 15. In a Request for ETP for SLRP memorandum, dated 18 July 2013, the Deputy G1, NGB, advised the NDARNG of the denial, with recoupment, of the applicant's request to retain the SLRP because the applicant was not serving in the duty MOS for which he had contracted, which violated ARNG SRIP Number 07-01. The NGB official stated the applicant's contract/agreement dated 27 October 2006 stated he was contracting for a $20,000.00 SLRP for MOS 21E (Heavy Construction Equipment Operator), later re-numbered as 12N. The applicant was advised of the denial on 2 December 2013 and that the amount to be recouped was $12,000.00. 16. In an advisory opinion, dated 10 September 2015, the Chief, Personnel Policy Division, NGB, recommended approval of the applicant's request. The NGB official stated: a. The applicant reenlisted in the NDARNG on 27 October 2006 for 6 years as a 21N3O, as annotated on page 2 of NGB Form 600-7-5-R-E. The contract effective date was 15 May 2007. On 31 October 2007, under NDARNG Orders Number 304-001, the Soldier transferred units which updated his MOS from 21N to 92F as he was informed of unit reorganization during his family's physical relocation from Montana to join him after redeployment. b. On 21 February 2013, the NDARNG submitted an ETP request on behalf of the applicant. On 18 July and 2 December 2013, respectively, the NDARNG and the applicant were notified of the denial of the request to retain the SLRP. c. DoD Instruction (DoDI) Number 12025.21.6.2 requires a Soldier to enter into a written agreement to receive an incentive and payments. The specific paragraph states, "As a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understand the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specify the terms of the Reserve service commitment that authorized the payment of the incentive to the member." This error is in no way the fault of the applicant. d. The NGB Incentives Branch non-concurred with the approval recommendation and supports its original denial based on Section V of the NGB Form 600-7-5-R-E, wherein it states, "Voluntarily transfer out of my contracted MOS." It was noted the applicant did not initial that acknowledgement block. The NDARNG concurred with the approval recommendation. 17. The advisory opinion was provided to the applicant on 14 September 2015 for acknowledgement/rebuttal. In his response, he stated he agreed with the statement that the error was in no way the fault of the Soldier. His reenlistment contract was not properly briefed and Section V was not covered. Each year he submitted all of the required documents for the SLRP and it was approved. DISCUSSION AND CONCLUSIONS: 1. The applicant reenlisted in the NDARNG on 27 October 2006 for an SLRP in MOS 21N3O. The Annex L clearly stated the SLRP would be terminated if the individual voluntarily transferred out of the contracted MOS or fail to become MOS qualified with 24 months after a unit inactivation, reorganization, or relocation; however, this section of the addendum does not contain his initials. 2. It appears the loss of the applicant's civilian job upon his return from deployment prompted his attempting to locate a NDARNG unit with a 21N slot. In January 2011 he was awarded PMOS 12N in the NDARNG. The NGB opined that his MOS was updated and slotted from 21N to 92F as a result of the unit's reorganization. 3. The NGB and NDARNG recommended approval of the applicant's request in accordance with DoDI 12025.21.6.2 that each recipient shall be required to sign a written agreement stating that the member has been advised and understands the conditions under which the incentive shall be terminated or recouped. Through no fault of his own the applicant was unaware his actions would terminate his eligibility for the SLRP. As a matter of equity, he should not be penalized. He met all the requirements he agreed to on his SLRP contract up until his transfer and unit's reorganization. BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 terminating any recoupment action against him related to the SLRP and returning to him any monies that have been recouped. ___________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) AR20150005356 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005356 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1