IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008099 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008099 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008099 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, an exception to policy (ETP) for retention of the Student Loan Repayment Program (SLRP) incentive in the Iowa Army National Guard (IAARNG). 2. The applicant states: a. His initial enlistment contract placed him in a military occupational specialty (MOS) for which he was physically unable to attain. During his career he received inaccurate information from his state incentive manager which would suggest that if he were to become a commissioned officer he would remain eligible to enroll in the SLRP. As a newer Soldier he was unaware that he could be jeopardizing his participation in the SLRP. He trusted in his leaders to inform him. b. In May 2013, he spoke with his State Incentive Manager and was advised that in order to receive the payment an ETP memorandum must be submitted. After several months he received the denial notification. The notification not only explained that his request had been denied, but that he had not upheld his initial enlistment contract and recoupment action up to $20,000.00 would commence. He believes this decision could be quite different if some of the circumstances surrounding the situation had been taken into account. c. In late 2006, he made the decision to join the IAARNG. His primary desire was to attend the Officer Candidate School (OCS). On 19 October 2006, at the Military Entrance Processing Station he underwent the standard military medical examinations. During the examination his audiology tests showed significant hearing loss in his left ear as a result of serving on active duty in the U.S. Navy (USN). After the examination, he was advised he could be assigned MOS 96H (Imagery Ground Station Operator (currently 35H (Common Ground Station Analyst)). The selection of this MOS would afford him the opportunity to immediately attend OCS without the need to become MOS qualified (MOSQ). It was explained that because of the nature of his occupation in the Navy, he could be directly assigned to this MOS. d. He accepted the MOS classification and began serving in Company B, 2nd Battalion, 34th Brigade Special Troops Battalion. His company commander wasted no time preparing his OCS packet. In March 2007, he attended his first OCS drill. During his pre-commissioning physical examination it was determined that his hearing loss would require a waiver generated by his command. Ultimately his OCS experience was cut short as he was required to attend the Warrior Transition Course in New Mexico. His experience there opened his eyes to Army service. Upon returning to the IAARNG he advised his company commander that he did not feel he had enough experience to lead troops and he withdrew from OCS. The next step in the process was to become MOSQ. e. With his command now formally notified that he would not be attending OCS, they began making arrangements to award him MOS 96H. Upon review it was determined that his 11-year break in service was too great to award him this MOS and he would need to attend the formal school in Fort Huachuca, AZ. As the full-time staff began researching the school options it was determined that his hearing loss made him ineligible for the MOS. He was told he could choose from any number of MOSs in the unit or he could research options outside of the command. He chose to leave the command for a unit which was closer to his home. f. He accepted a position with Headquarters and Headquarters Company, 334th Brigade Support Battalion (BSB). After approximately 1 1/2 years with the BSB, he chose to reenter the OCS program. During Phase 2 of OCS, he was advised he had two options regarding the affiliation bonus options. The first was to stay in the SLRP and sacrifice the $10,000.00 bonus. The second was to accept the bonus and repay the amount which had already been paid out through the SLRP. He chose to remain in the SLRP. He accepted his commission on 15 August 2010. Since that time his service has been characterized as exemplary. He has served in four commands since his commissioning and will receive a company command in September 2015. g. His intention moving forward is to continue to serve in the IAARNG until age 60. As a commissioned officer he believes that his position in the organization is of far greater importance than the position of a 96H enlisted Soldier. He has proven himself to be a competent leader of troops and his career as an officer continues to advance. His level of commitment to the State of Iowa and the United States is unwavering. He is requesting strong consideration of his request and the remaining payments be made on his existing student loans. 3. The applicant provides copies of: * DD Form 1996/1 (Record of Military Processing – Armed Forces of the United States) * DD Form 2808 (Report of Medical Examination) * DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States) * Guard Annex (Enlistment/Reenlistment Agreement – ARNG) * Army Training Requirements and Resources System (ATRRS) Couse Catalog for Course 233-35H10 * three DA Forms 67-9 (Officer Evaluation Report) * Request for ETP memorandum * letter from the Department of Veterans Affairs (VA) and disability compensation benefits information 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. He served in the USN from 17 August 1989 through 16 August 1995. 3. He provides a copy of a DD Form 2808 showing he underwent a medical examination on 19 October 2006 for the purpose of a commission in the ARNG. The form indicates he passed the hearing test and that he was found qualified for service. 4. He enlisted in the IAARNG on 19 October 2006. At the time of his enlistment, he executed a Guard Annex for enlistment in MOS 96H. He also executed and signed Annex S (SLRP Addendum). Annex S stated in: a. Section II (Eligibility) – "I hold the primary MOS for the position in which I am immediately reenlisting/extending. I am immediately reenlisting/extending in a valid positon vacancy in WP8WBO and in the critical skill MOS 96H that Headquarters, Department of the Army, has authorized for SLRP. I must remain in the contracted MOS for the first three years of my enlistment contract." b. Section V (Termination) – "I understand that my SLRP eligibility will be terminated if I voluntarily transfer out of my contracted MOS and/or SLRP eligible unit prior to third year anniversary. I have read Section V and understand the contents thereof." 5. Orders Number 209-007, issued by the IAARNG on 28 July 2009, relieved him from MOS 92Y (Supply Specialist) and assigned him to MOS 09S2O (S4 (Officer Candidate)) effective 6 July 2009. 6. He also provides a copy of an ATRRS Couse Catalog for Course 233-35H10 (96H) showing as a prerequisite the passing of a hearing test on an audiometer. 7. His record shows he was discharged from his enlisted status in the IAARNG on 14 August 2010 and that he was appointed as a second lieutenant in the IAARNG on 15 August 2010. 8. In a memorandum, dated 2 August 2012, the IAARNG designated he qualified for Area of Concentration (AOC) 91A (Ordnance Officer). 9. He further provides copies of: a. Three DA Forms 67-9, for the periods ending on 30 June 2012, 30 June 2013, and 31 December 2013, showing he received ratings of "Outstanding Performance, Must Promote" and "Best Qualified." b. A Request for ETP memorandum, dated 17 December 2014, in which the National Guard (NGB), Deputy G1, ARNG, advised the IAARNG of the denial of the applicant's retention of the $20,000.00 SLRP with termination of the incentive with recoupment effective the contract start date. The NGB official stated the applicant did not qualify in the contracted MOS which violated Department of Defense Instruction Number 1205.21. The applicant did not hold the skill as listed in line 1.c. of Section 11-Eligiblity of the SLRP addendum. The applicant contracted for MOS 96H on 19 October 2006. His current AOC/MOS was 90A (Logistics Officer). c. His ORB, dated 7 February 2015, showing his AOC as 91A. d. A letter, dated 7 February 2015, in which the VA awarded him a 10 percent service-connected disability rating for tinnitus. REFERENCES: Title 37, U.S. Code, section 373, allows for the recomptment of an unearned portion of a bonus, incentive pay, or similar benefit, and termination of remaining payments, when conditions of payment are not met. DISCUSSION: 1. The applicant enlisted in the IAARNG on 19 October 2006 and executed an SLRP addendum for MOS 96H. During his period of enlisted service he served in MOS 96H, 09S, 92Y positions. 2. There is no evidence showing he was qualified and held the contracted SLRP MOS 96H during his enlisted service. It is unfortunate that he thinks he was erroneously denied the SLRP; however, he knew or should have known of the eligibility criteria for receipt of and retention of the incentive. 3. Without evidence to the contrary, the action taken by NGB to invalidate the incentive appears to be proper. //NOTHING FOLLOWS// ABCMR Record of Proceedings @#!CASENUMBER Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150008099 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2