BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150007523 BOARD VOTE: __x_______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150007523 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140021009, dated 15 January 2015. As a result, the Board recommends that all Army National Guard and Department of the Army records of the individual concerned be corrected by showing an exception to policy was approved allowing the applicant to retain the Enlisted Loan Repayment Program incentive and paying the incentive as prescribed in the applicable policy. __________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. BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150007523 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 reconsideration of his previous request for payment of his college loans under the Student Loan Repayment Program (SLRP). 2. The applicant states the wording of his addendum specifically states that his eligibility may be terminated, not that it will be terminated based on a failure to become DMOSQ within 24 months. a. As cited in the memorandum from the National Guard Bureau (NGB) denying his eligibility, the source of the 24 month requirement for DMOSQ is U.S. Code, Title 10, Subsection 10105, section 1115, item c(1), which states, "If at the end of 24 months after a member of the Army Selected Reserve enters the Army Selected Reserve, the member has not completed the minimum training required for deployment, the member shall be discharged." The wording of the addendum follows the wording of the Title 10 so that if a member is discharged they are no longer eligible for SLRP benefits. The applicant was not discharged because he redirected his career to become an officer. It stands to reason that he can either be discharged and have his benefits terminated or continue to serve and receive his benefits, but not that he continue to serve and have his benefits terminated. b. He was never counseled that contracting as a cadet with the Reserve Officers' Training Corps (ROTC) would terminated his eligibility for SLRP and no paperwork was ever processed terminating his benefits. The first paperwork generated regarding his termination was dated 5 November 2014, in response to an exception to policy (ETP) request he submitted in an attempt to receive his benefits. At that point, four SLRP payments should have been paid. Instead, he was denied his benefits for 4 years without any paperwork regarding the denial. c. Army Board for Correction of Military Records (ABCMR) Docket Number AR20120015144 appears to be identical to his case and concerns a non-prior service (NPS) applicant who enlisted under MOS 09S (Commissioned Officer Candidate). The same forms governed his SLRP benefits as the applicant's, and the NGB initially denied his benefits. In this applicant's ABCMR appeal, he provided the same arguments as the applicant, and the same form, which explicitly states the SLRP will continue after contracting with ROTC and commissioning; he was granted full relief. As an 09S enlistee, this applicant would not have gone through Advanced Individual Training prior to commissioning. As in the applicant's case, failure to obtain a DMOSQ is not grounds for termination if the reason for not obtaining DMOSQ was commissioning. 3. The applicant provides the following evidence, previously considered in Docket Number AR20140021009, on 15 January 2015: * NGB Form 600-7-5-R-E (Annex L to DD Form 4, SLRP Addendum, Army National Guard (ARNG) of the United States), dated 27 January 2010 * DA Form 2823 (Sworn Statement), dated 2 January 2014 * Memorandum, Subject: Request for ETP for SLRP, dated 5 November 2014 * Memorandum, Subject: Notification of Incentive Eligibility Termination, dated 20 November 2014 4. The applicant provides the following new evidence: * Email correspondence from the office of his Member of Congress, dated 25 April 2015 * ABCMR Docket Number AR20120015144, dated 10 January 2013 * Memorandum for Record, Subject: Eligibility for SLRP, dated 17 October 2013 * Letter from the applicant to his Member of Congress, dated 26 February 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140021009 on 15 January 2015. 2. The applicant provides new evidence and a new argument not previously considered by the Board. Therefore, this new evidence and argument warrant consideration by the Board. 3. The applicant enlisted in the Montana Army National Guard (MTARNG) for a period of 6 years on 27 January 2010 and elected the alternate split option training for military occupational specialty 91J (Quartermaster and Chemical Equipment Repairer). 4. His enlistment contract included an NGB Form 600-7-5-R-E, dated 27 January 2010. This SLRP addendum shows that he was a NPS applicant enlisting to serve in critical Unit Identification Code (UIC) WPLUAA with an assignment to the 1063rd Support Maintenance Company. He identified six qualifying disbursed loans totaling $10,095.00 at the time of his enlistment. This form shows he acknowledged his understanding of the following statement by affixing his initials and signing his name to the agreement: a. Section V (Termination): I understand that I may be terminated from bonus eligibility for… Failure to obtain DMOSQ within 24 months after an involuntary transfer into another skill for the convenience of the government. Any periods of service spent in a deployed/mobilized status subsequent to the transfer will be added to the 24 month period. b. Section IX (Statement of Understanding): I understand that my SLRP will continue if I either accept an appointment as an officer or warrant officer candidate, or if I contract as an SMP/ROTC Cadet. It will also continue upon acceptance of either a commission or appointment as an officer or warrant officer candidate in the ARNG. The timeline of the original contract will remain in effect, but will not be renewed. I also understand that my continued participation in this program will cause me to be ineligible for any officer/warrant officer accession bonus. 5. He signed a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) on 10 December 2010. This contract obligated the Army to pay his full tuition for a period of 2 years provided the applicant successfully completed the academic, medical, and fitness terms and conditions as outlined in the agreement. 6. The applicant signed an Army National Guard Simultaneous Membership Program Agreement on 14 January 2011. This addendum to his current contract shows in Section C (For Current ARNG Members Electing Participation in SMP) that he agreed: As a current ARNG member, my original enlistment/reenlistment agreement is to be held in abeyance in order that I may participate in the SMP. As a participant in the SMP, I understand that – Upon acceptance into SMP, I am not eligible to continue in the ARNG Incentive Program. If I am disenrolled from or fail to complete the Advanced ROTC Course, or fail to be tendered a commission or accept a commission, or fail to volunteer for the ROTC Early Commissioning Program… [then he would be required to execute the terms of his enlistment/reenlistment agreement]. 7. His record contains an NGB Form 22 (Report of Separation and Record of Service) which shows the MTARNG honorably discharged him on 26 April 2012 for appointment as a commissioned or warrant officer. 8. His record contains a DA Form 71 (Oath of Office - Military Personnel) and an NGB Form 337 (Oaths of Office). These forms show he was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT) and as a 2LT in the MTARNG on 27 April 2012; 27 months after his enlistment. 9. He provided a DA Form 2823, dated 2 January 2014. This sworn statement includes the applicant's description of the events that led to the cancellation of his SLRP incentive. He stated, in effect: a. He enlisted in the MTARNG and agreed to serve in MOS 91J on 27 January 2010 in Butte, MT. In his contract, he agreed to forego an enlistment bonus in exchange for the SLRP and indicated that his student loans totaled $10,095.00. He graduated from Basic Combat Training on 15 July 2010 and returned to the MTARNG. b. He later contracted as a cadet with the ROTC/SMP on 10 December 2010 and was commissioned as a second lieutenant (2LT) on 27 April 2012 (2 years and 3 months after his initial enlistment). He has not received any payments under the SLRP incentive. He was informed that he was prevented from receiving the SLPR incentive because he failed to complete his Advance Individual Training (AIT) and become duty MOS qualified (DMOSQ). c. He also states that his SLRP Addendum clearly permits him to accept an appointment as an officer/warrant officer/SMP/ROTC cadet and retain his SLRP incentive. His contract does indicate that failure to become DMOSQ within 24 months may be grounds for termination of bonus eligibility but his understanding was that his commissioning would not cancel his SLRP incentive. He was told to request an ETP to retain the incentive. 10. The Deputy G-1, ARNG, denied his request for ETP for the SLRP on 5 November 2014. The memorandum denying his request states that the applicant was in violation of the ARNG Chaplain, Health Professional and Enlisted Loan Repayment Programs, effective 1 October 2009 because he failed to complete his initial MOS training requirements within 24 months of his date of enlistment; he entered the SMP/ROTC program; his contract was recorded on an obsolete contract/bonus addendum; and his contract/bonus addendum contained unauthorized pen and ink changes. 11. On 20 November 2014, the Joint Force Headquarters-MT notified the applicant that his SLRP incentive would be terminated because of his failure to complete the required training within 24 months of enlistment. 12. The applicant provided a memorandum that details the same information contained in his sworn statement. He further states that he did not complete AIT because he decided to join the ROTC/SMP program, but he fully intended to complete AIT after fulfilling his ROTC requirements. He was later informed that a cadet could not attend AIT. However, he believes that completion of the Basic Officer Leadership Course on 21 August 2013 did in fact make him DMOSQ. The fact that his Addendum was completed on an obsolete form is due to no fault of his own. Lastly, there are no unauthorized pen and ink changes on his contract. He has faithfully and diligently performed his duties and he plans to remain in the ARNG far longer than his original 6-year enlistment. Denying him the SLRP incentive is in direct conflict with the Army's publication governing the program. The basis for denial of his ETP request seems to lie in minor technicalities that have little to no evidence to support them and that contradict the spirit of the loan repayment program. 13. The applicant provided ABCMR Docket Number AR20120015144, dated 10 January 2013. The applicant in this case contracted for the SLRP, and enlisted for MOS 09S. In this case, the NGB denied the applicant's request for ETP because he attended OCS. The ABCMR overturned the NGB's decision because the applicant's contract did not state that attendance at OCS would violate the contract. REFERENCES: 1. Army Regulation 135-7 (Incentive Programs), 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. 2. NGB EDU Memorandum 10-009, subject: Chaplain, Health Professional and Enlisted Loan Repayment (CHELRP), dated 23 February 2010, implemented NGB Education Division Instruction 1.1, dated 1 October 2009. 3. NGB Education Division Instruction 1.1 contains all policy and procedural guidance for all loan repayment programs for the ARNG. a. This instruction supersedes all other policy and procedural guidance on the SLRP (now known as the ELRP), the Health Professional Loan Repayment Program (HPLRP) and the Chaplain Loan Repayment Program (CLRP). The combined loan repayment program is now known as the Chaplain, Health Professional and Enlisted Loan Repayment Programs (CHELRP). b. Paragraph 2-3 provides guidance for enlisted eligibility. It states, in part, enlisted Soldiers receiving ELRP will remain eligible after contracting into the ROTC/SMP. Soldiers will also remain eligible upon commissioning or appointment, subject to the original restriction that their ELRP will be paid within the same period established in their original enlistment documents. 4. ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2010, 1October 2009 - 30 September 2010 (Policy Number 10-01), dated 20 January 2010, paragraph 7 (Non-Prior Service (NPS) Enlistment Bonus) states "Soldiers who do not complete Advanced Individual Training (AIT) and become MOS Qualified (MOSQ) within two years will not receive an incentive." DISCUSSION: 1. The evidence of record shows the applicant enlisted in the MTARNG on 27 January 2010, he contracted as an ROTC cadet on 10 December 2010, and he contracted for the SMP, a program that allows Soldiers to attend ROTC while they are serving in an enlisted status, on 14 January 2011. 2. Entering ROTC/SMP did not terminate the applicant's SLRP contract, as the contract itself states. As cadets do not attend AIT, his failure to become DMOSQ would not have been a basis for terminating the incentive. 3. The evidence indicates the decision to terminate the SLRP incentive was an error. A review of the governing policies indicates he would have remained eligible for this incentive in spite of his change in status. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007523 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007523 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2