IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20140017812 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 as an exception to policy (ETP) to retain his incentive under the Student Loan Repayment Program (SLRP) and to stop recoupment of SLRP bonuses received. 2. The applicant states: a. after waiting over a year to receive a response to his ETP for full payment of his $20,000.00 enlistment bonus under the SLRP, the National Guard Bureau (NGB) not only denied his request, but they also plan to recoup the $12,000.00 payment already received based on a regulation that was implemented 17 days prior to his enlistment; b. he separated from the New York Army National Guard (NYARNG) on 20 March 2013, but did not receive any SLRP payments during his final 2 years of service; c. after submitting all required documentation and contacting the education office of New York State, a human resources officer informed him of an administrative discrepancy with his enlistment contract and SLRP bonus; d. after 6 years of service, he learned for the first time that his enlistment contract did not contain a $20,000.00 maximum bonus; e. due to the conflicting dollar bonus values listed on his DD Form 4 (Enlistment Contract), the NYARNG would not make final SLRP bonus payments estimated at $6,000.00; f. in January 2007, he enlisted in the Army National Guard (ARNG) for 3 years. He was told his loans were eligible for the maximum $20,000.00 bonus under the SLRP; g. upon completion of his initial enlistment, he reenlisted in the ARNG for 6 years with the same recruiter who continued to inform him he remained eligible for his initial SLRP incentive without interruption; and h. he served 6 years in the ARNG in good standing and throughout the past 2 years he has continually maintained contact with appropriate State ARNG personnel and provided them all the necessary paperwork regarding his SLRP in an attempt to receive payment. 3. The applicant provides: * NYARNG memorandum * NGB memorandum * self-authored statement * NGB Form 600-7-5-R-E (Annex L to DD Form 4, Student Loan Repayment Program Addendum) 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 NYARNG on 18 January 2007 for a period of 3 years with a concurrent contractual military service obligation (MSO) of 8 years (a 3 year by 5 year enlistment option (3x5)). His DD Form 1966/3 (Record of Military Processing) shows in item 32 (Specific Option/Program Enlisted For) the entry: * assignment to Company B, 642nd Support Battalion * 3x5 enlistment bonus * SLRP for 3 years * ARNG Standard Training Program * training for military occupational specialty (MOS) 94R (Avionic and Survivability Equipment Repairer) 3. In connection with this enlistment, he completed an NGB Form 600-7-5-R-E. The enlistment option he selected shows he would be a member of an ARNG unit for a period of 3 years and a member of the Individual Ready Reserve (IRR) or Inactive National Guard for the balance of his 8-year MSO unless he elected to remain with his ARNG unit or he was discharged from his enlistment agreement. He also indicated he understood: * Section II (Eligibility) * he would undergo training for MOS 94R * SLRP benefits were authorized for MOS 94R * must remain in his contracted MOS for the first 3 years * he had one loan in the amount of $21,889.89 * repayment of student loan(s) would not exceed $10,000.00 * he would be suspended from SLRP eligibility if he accepted a commission as an officer or an appointment as a warrant officer * Section III (Entitlement and Payments) – (paragraph 1a) the total amount of repayment for qualifying loans will not exceed $20,000.00 and the contract would terminate at the end of his contractual obligation 4. He entered active duty for training (ADT) on 6 September 2007 and he completed training for MOS 11B (Infantryman). He was released from ADT on 23 February 2008 to the control of his state. There is no evidence he completed training in his contractual MOS 94R. 5. On 17 January 2010, he was honorably released from the NYARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). His NGB Form 22 (Report of Separation and Record of Service) shows he completed 3 years of honorable ARNG service. His primary MOS was 11B. 6. On 27 January 2010, the applicant reenlisted in the NYARNG for a period of 6 years. He entered active duty on 16 May 2010 and completed training in MOS 74D (Chemical Operations Specialist). 7. The applicant continued to serve on active duty as a member of the ARNG until he was honorably released to the control of the state by reason of completion of required active service on 31 July 2011. The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 2 months, and 15 days of creditable active duty service for this period. His primary MOS was 74D. 8. On 30 March 2013, the applicant was honorably discharged from the NYARNG. The NGB Form 22 issued at that time shows he completed a total of 6 years, 2 months, and 3 days creditable ARNG service. His MOSs were 74D and 11B. 9. On 22 July 2014, the Deputy G-1, NGB, denied the applicant’s second request for an ETP for SLRP. The official stated: a. The State Incentive Manager would terminate the incentive with recoupment effective the initial enlistment contract start date of 18 January 2007. b. The applicant did not contract for the proper term of service required for the incentive which violates ARNG Selected Reserve Incentive Program (SRIP) 07-04 and Department of Defense Instructions (DODI) 1205-21, subject: Reserve Component Incentive Programs Procedures. c. The applicant contracted for MOS 94R. His current MOS was 74D. d. Although the applicant enlisted in the NYARNG for a term of 3 years on 18 January 2007, he was in violation of the DODI 1205-21 which requires a non-prior service applicant to enlist for 6 years (6 years by 2 years (6x2)), therefore his request could not be granted. 10. DODI 1205.21 prescribes policy, assigns responsibilities, and prescribes procedures for management of the Reserve Component incentive programs. a. Section 4.1 (Policy) incentive skills shall be used to attract and retain individuals possessing or qualifying for training in critical skills and/or critical units needed in wartime and to sustain membership and maintain readiness in the ARNG and Reserve components. b. Section 6.2 (Written Agreements), 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 understands 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 authorizes the payment of the incentive to the member. c. Section 6.6.2. (Relief from Termination) persons who MOS is changed for the convenience of the Government or whose unit is inactivated, relocated, or reorganized, or converted (e.g., weapons systems conversion) are entitled to continue receiving incentive payments provided they meet all other eligibility criteria, and are not separated from the Selected Reserve. d. Section 6.8 (Termination and Recoupment) a person shall not be eleigible to receive any further payments, except for payments for service performed before the contract termination date. Unless granted relief, a member must refund a prorate amount to the Government, if termination is for unsatisfactory participation, separates for any reason before completing contractual obligation, moves to a non-bonus skill or unit, unless the move is required by the Reserve component. e. Section E8.1 (Written Agreement General Education Loan Repayment Program) states, in pertinent part, that a person incurs a contractual obligation of 6 years if their initial enlistment is as a non-prior service member. If the person is prior service, the contractual obligation is an enlistment, reenlistment or extension of 3 or more years. 11. DODI 1340.23, subject: Waiver Procedures for Debts Resulting from Erroneous Pay and Allowances, provides the following directives: a. Generally, persons who receive a payment erroneously from the Government acquire no right to the money. They are bound in equity and good conscience to make restitution. If a benefit is bestowed by mistake, no matter how careless the act of the Government may have been, the recipient must make restitution. A waiver is not a matter of right. It is available to provide relief as a matter of equity, if the circumstances warrant. b. A waiver usually is not appropriate when a recipient knows, or reasonably should know, that a payment is erroneous. The recipient has a duty to notify an appropriate official and to set aside the funds for eventual repayment to the Government, even if the Government fails to act after such notification. c. Debts may be waived only when collection would be against equity and good conscience and would not be in the best interests of the United States. There must be no indication the erroneous payment was solely or partially the result of fraud, misrepresentation, fault, or lack of good faith of the applicant. DISCUSSION AND CONCLUSIONS: 1. The applicant signed a 3x5 enlistment contract in the NYARNG on 18 January 2007. In connection with this contract, he signed an SLRP addendum that promised him payment under the SLRP. He enlisted in good faith not knowing that he was in violation of DODI 1205.21. It appears, the ARNG SRIP Guidance for FY 2007, Policy Number 07-04 was written in violation of DODI 1205.21, paragraph E8.1.2.1., that required a 6x2 enlistment commitment. SRIP Policy Number 07-04, paragraph 1(2) authorized an enlistment contract of 3x5. For a non-prior service enlistment, DODI 1205.21, E8.1.2, requires a 6-year contract. Therefore, SRIP Policy Number 07-04 was in violation of DODI 1205.21. 2. In addition, while the applicant did not initially sign a 6x2 enlistment contract, he subsequently reenlisted in the NYARNG on 27 January 2010 and continuously served until he was honorably discharged on 20 March 2013. Thus completing a total of 6 years, 2 months, and 3 days of honorable ARNG service. 3. Notwithstanding the enlistment contractual errors pertaining to years of service, there is no evidence to show why the applicant did not complete training in his contracted MOS of 94R. The applicant successfully completed training in MOS 11B and 74D. As the applicant is not responsible for requesting military school or training quotas, it is reasonable to presume Government employees errored in the administration and adherence to his enlistment contractual obligation to train, qualify and serve in MOS 94R. 4. Therefore, due to the numerous administrative errors in the processing and execution of the applicant’s enlistment contract, withholding payment of the SLRP incentive would be contrary to equity, good conscience and against the best interests of the United States as he served more than 6 years of honorable service. The administrative errors were not his fault. As such, his records should be corrected to show he was granted an exception to policy and allowed to retain the $20,000 SLRP with no recoupment action required by the Government. 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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by: a. showing the NGB and NYARNG granted him an exception to policy to retain a $20,000.00 SLRP; b. waiving all SLRP recoupment actions and returning funds previously collected based on the NGB denial of an exception to policy; and c. paying the remaining SLRP payments to the appropriate institutions as a result of this exception to policy provided the applicant provides the necessary evidence to support his educational loans. ____________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) AR20140017812 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017812 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1