IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150005895 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 approval of an exception to policy (ETP) to retain eligibility for the Student Loan Repayment Program (SLRP) incentive for which she contracted when she enlisted in the Wyoming Army National Guard (WYARNG). 2. The applicant states: * she enlisted in the WYARNG on 29 June 2010 with the SLRP incentive * due to the ETP determination made by the National Guard Bureau (NGB), she is being told that her SLRP will be terminated with recoupment * the error with her SLRP incentive was not found until a State audit was conducted 3 years after receipt of the incentive * she contracted for a critical unit identification code (UIC) and military occupational specialty (MOS), however due to the personal hardship of being a single parent and the extreme distance between her home of record and her unit, she requested transfer out of her UIC and MOS * she could not in good conscience continue driving the distance she had to for drill and annual training with a child, thus requested a transfer to a unit closer to her home of record * she should have been notified by her unit or the State Incentive Manager should have notified her about the ramifications of transferring units * she continues to remain in good standing with her unit and has become MOS qualified in the MOS she transferred into * she believes her SLRP incentive should be retained and payments made on her student loans or her SLRP incentive should be terminated without recoupment to prevent further hardship on herself and her family * she should not be held accountable for the recoupment as determined by NGB in its denial of her ETP request because of the lack of due diligence on the part of her unit and the State Education Office at the time 3. The applicant provides: * DD Form 4 (Enlistment/Reenlistment Document), dated 30 June 2010 * DD Form 1966 (Record of Military Processing), dated 15 December 2010 * NGB Form 600-7-5-R-E (Annex L to DD Form 4 (Enlisted Loan Repayment Program Addendum)), dated 15 December 2010 * WYARNG Orders 285-011, dated 12 October 2011 * applicant-initiated packet requesting ETP for SLRP termination, dated 30 December 2013 * second applicant-initiated packet requesting ETP for SLRP termination, dated 24 August 2014 * NGB memorandum, dated 12 February 2015, denying her request for ETP for SLRP retention without recoupment 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 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 WYARNG under the Recruit Force Pool Program on 29 June 2010 and served as an inactive member of the National Guard until becoming an active member in the ARNG following the signing of a second DD Form 4 on 15 December 2010. 3. She signed an initial DD Form 4 on 30 June 2010, enlisting in the WYARNG for a period of 1 year. A DD Form 1966, signed 15 December 2010, shows she enlisted for the ARNG Recruit Force Pool Program and would be assigned to the Inactive National Guard from her date of enlistment until activated and that upon activation she would become an active member of the ARNG with pay and benefits. Her enlistment term as an active member was for a period of 8 years and she would be assigned to UIC WPEUAA, 1041st Engineer Company, in MOS 12C (Bridge Crewmember) or alternately MOS 92Y (Unit Supply Specialist) or 92G (Food Service Specialist). The DD Form 1966 contains the statement: "I understand that the unit into which I am enlisting is further than the reasonable commuting distance as defined in Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures), paragraph 5-5." 4. Her NGB Form 600-7-5-R-E, also dated 15 December 2010, shows she acknowledged the repayment of her student loans would be terminated if she voluntarily transferred out of the critical UIC or the critical skill for which the bonus was approved or voluntarily transferred to a non-deploying table of distribution and allowances (TDA) or any TDA not specifically authorized a bonus. There is no indication in her available enlistment documentation of the date her bonus control number was requested by her recruiter. 5. Headquarters, U.S. Army Maneuver Support Center of Excellence, Orders 132-068, dated 12 May 2011, awarded her MOS 12C effective 24 June 2011. 6. WYARNG Orders 285-011, dated 12 October 2011, released her from assignment as a bridge crewmember at 1041st Engineer Company in Rock Springs, WY, and transferred her to a position in MOS 92A (Automated Logistical Specialist) at the ARNG Training Center in Guernsey, WY, effective 11 October 2011. The applicant requested this reassignment. 7. WYARNG Orders 325-011, dated 20 November 2012, awarded her primary MOS 42A (Human Resources Specialist) and secondary MOS 12C and withdrew primary MOS 12C effective 16 November 2012. 8. A copy of her Enlisted Record Brief, dated 30 July 2013, shows she was reassigned from the ARNG Training Center to the 213th Regiment Regional Training Institute (RTI) in Guernsey, WY, on 2 March 2012 where she served as both a training sergeant and a human resources specialist. Orders pertaining to that reassignment are not in her available records for review. 9. On 30 December 2013, she requested an ETP for her SLRP termination, stating she signed her initial enlistment/bonus contract on 29 June 2010 to join the WYARNG in the Recruit Force Pool Program, at which time a bonus control number was requested and added to her SLRP addendum. She didn't join the WYARNG until 15 December 2010 when she signed a second DD Form 4 at the Military Entrance Processing Station. Her SLRP payments were suspended due to the signing of the SLRP addendum in advance of her current DD Form 4. It was her recruiter who filled out the paperwork and requested the bonus control number and neither he nor she knew a new bonus control number needed to be requested on the date of the new DD Form 4. Her enlistment contract was processed through her recruiter and her State Incentive Manager and at no time was her SLRP addendum called into question by either party. 10. Included in her ETP packet was a 30 December 2013 memorandum from Headquarters, 213th Regiment RTI to the Chief, ARNG Strength Education Office, requesting approval of an ETP for the applicant based on the grounds that retraction of her bonus over 3 years after establishment of what was felt to be a valid contract with the U.S. Government is unjust and places her in financial hardship. A termination of the SLRP will cause her to lose a significant amount of money and will, in essence, hold her accountable for the Government's mistake in requesting her bonus control number in advance of her actual enlistment date. 11. On 24 August 2014, the applicant again composed a memorandum, addressed to the Chief, ARNG Strength Education Office, requesting approval of an ETP for her SLRP termination. Her packet included endorsements from Headquarters, 213th Regiment RTI, and the State of Wyoming Adjutant General's Office. She argued that she was a single parent looking for a way to pay back her student loans as well as meet the financial needs of her family when she signed the SLRP documents. She enlisted in the 1041st Engineer Company with the understanding she would only need to train there once or twice a year, as the unit is 338 miles from her home. After basic combat training and advanced individual training she learned she would need to be in attendance on a monthly basis. As a single mother and caretaker for her mother who had a stroke, drilling so far from home would have created an undue hardship on her family. She discussed the issue with her unit and on 11 October 2011 was transferred to the WYARNG Training Center so she could drill closer to home. A couple of months after her transfer, the office of the State Inspector General informed her she could not retain the SLRP in that unit and must transfer to another unit where the SLRP was authorized, thus arrangements were made for her to transfer to the 213th Regiment RTI effective 1 March 2012 where she would fill a training sergeant position. She was informed that this transfer would allow her to keep her SLRP, thus she quickly agreed. She has not received a payment on her student loans although she has submitted her paperwork numerous times and always acted in good faith. 12. The endorsement from the Commander, Headquarters, 213th Regiment RTI, dated 28 August 2014, reiterated the applicant's predicament, and noted that it is unknown why she was initially enlisted in a unit so far away from her home of record or whether she was informed of the impact on her SLRP by transferring from that unit to avoid hardship. Despite the 213th Regiment RTI being a qualified unit for SLRP, the applicant has never received a payment and should not be held liable for an error made by the Government over 3 years ago. 13. On 6 September 2014, the State of Wyoming Adjutant General's Office likewise endorsed the applicant's ETP request, recommending approval. The memorandum states the applicant initially contracted for assignment to an incentive-qualified unit; however, she transferred out of that unit into a non-qualifying TDA unit on 11 October 2011 due to personal hardship. Unknown to the applicant, the date the bonus control number was requested was not the date she signed her second DD Form 4, thus it was found to be invalid and the SLRP would be terminated. She should not be held responsible for the lack of due diligence on the part of Military Entrance Processing Station personnel. 14. A 12 February 2015 memorandum from NGB denied the applicant's request for an ETP to retain the $50,000.00 SLRP incentive and directed the State Incentive Manager to terminate the incentive effective the date of the applicant's transfer. NGB further directed that payments are not authorized due to her transfer occurring prior to the first anniversary date of her contract. The request for an ETP was denied based on the following discrepancies: * the applicant voluntarily transferred out of her contracted MOS which violates NGB Education Division Instruction 1.1 (NGB-EDUi 1.1), Chaplain, Health Professional, and Enlisted Loan Repayment Programs (CHELRP), dated 1 October 2009 * her contract/bonus addendum is obsolete, which violates NGB-EDUi 1.1 (CHELRP), dated 1 October 2009 * her bonus control number was requested before the date of enlistment which violates NGB-EDUi 1.1 (CHELRP), dated 1 October 2009 * her contract/agreement shows she enlisted in UIC W77755 on 15 December 2010 and contracted for MOS 12C for a loan addendum amount of $50,000.00, but her current MOS is 42A * since she voluntarily transferred out of her contracted MOS, her request for an ETP cannot be approved 15. NGB-EDUi 1.1 (CHELRP), dated 1 October 2009, established standards, policies, and procedures for the ARNG Loan Repayment Program. It states CHELRP benefits will be terminated if the Soldier: a. receives the maximum CHELRP benefit available equating to the maximum amount authorized, or b. moves to another MOS or area of concentration (AOC) or is reclassified in and MOS/AOC, other than that for which contracted except if the Soldier is moved to another MOS/AOC in a National Guard unit for normal career progression or when retention of CHELRP entitlement has been approved by the Chief, NGB, or c. becomes an unsatisfactory participant under Army Regulation 135-91. The termination date must be the date the Soldier attained his or her ninth unexcused absence or the date the Soldier is determined to be an unsatisfactory participant for failing to attend or complete the entire period of annual training, or d. fails to extend the contracted term of service for a period of nonavailability, or e. separates from status in a Selected Reserve unit of the ARNG, except when separated for an authorized period of nonavailability; separation includes but is not limited to discharge or transfer to the Individual Ready Reserve, Standby reserve, or Retired Reserve, enlistment or appointment in the Regular Army or in a Regular or Reserve Component of another branch of the service, and voluntary entry or order to extended active duty. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that she should be granted an ETP to retain the SLRP incentive was carefully considered. 2. She enlisted in the WYARNG for the critical skill MOS 12C and agreed to serve in the critical UIC WPEUAA, 1041st Engineer Company, in order to qualify for the SLRP benefit. 3. She acknowledged in her enlistment documents that she understood the unit into which she was enlisting is further than the reasonable commuting distance and that her SLRP benefit would be terminated should she voluntarily transfer out of her critical skill MOS or her critical skill UIC. Regulatory guidance supports termination of the benefit in the event of voluntary transfer out of the UIC or MOS listed in the contract. 4. It is unclear what date her recruiter requested her bonus control number, but that information appears to be negligible in light of the fact that the applicant has not and continues to not fulfill the core terms of her enlistment contract required for qualification of the SLRP. 5. While the hardship derived from commuting to a unit over 300 miles away from her home of record while she cares for her family is understandable and was a reasonable cause for her voluntary transfer out of her contracted UIC once she realized she could not easily manage it, she initially transferred to a TDA unit closer to home and served in MOS 92A, neither of which qualify for the benefit. Once made aware she was not eligible for SLRP benefits at that unit, she transferred to another unit that may well be authorized the SLRP, but she continues to serve in the non-critical MOS of 42A. Once qualified in the critical MOS of 12C for which she enlisted and the SLRP was granted, she served in that MOS for less than 4 months and never again served in a qualifying MOS. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x____ 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. _____________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) AR20150005895 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005895 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1