IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: 20150017118 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: 20150017118 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by showing an exception to policy was approved waiving recoupment of payments made on his behalf under the Student Loan Repayment Program. As a result of this correction, any monies that have been recouped should be returned to him. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reinstating his Student Loan Repayment Program eligibility under the contract he signed on 28 July 2008. __________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. IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: 20150017118 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, correction of his military records to show he was authorized the Student Loan Repayment Program (SLRP) incentive. 2. The applicant states he served as a member of the United States Marine Corps from 3 December 1998 to 2 December 2002. He received an honorable characterization of service. On 28 July 2008, he enlisted in the New Jersey Army National Guard (NJARNG). He opted for training in military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic). This was a critical MOS qualifying him for an SLRP of $20,000. The primary reason for his enlistment was to receive the SLRP. His recruiter assured him that his prior service qualified him for the SLRP. He had no reason to believe he did not qualify for the SLRP. He completed training as a 63B and the SLRP payments began. He transferred to the Rhode Island ARNG (RIARNG) and attended training for MOS 13B, also a critical MOS. The RIARNG continued to certify him for SLRP and the payments continued. He was always in good standing and met the training requirements. He contends that the National Guard Bureau (NGB) ratified his inclusion in the SLRP by making the $10.000.00 SLRP payments on his behalf. He performed his full term of enlistment and was discharged with an honorable characterization of service. Therefore, he contends that the NGB is bound to fully perform its portion of the contract it ratified by making full payment of his SLRP. He also argues that he relied on the SLRP payments promised in his enlistment contract. It is unconscionable for the NGB to not render full payment and to recoup monies paid on his behalf after he has fully completed honorable and faithful service within all of the terms of his enlistment contract. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) from the U.S. Marine Corps, ending on 2 December 2002 * NGB Form 600-7-5-R-E (Annex L to DD Form 4 (Enlistment/ Reenlistment Document)) signed and dated 28 July 2008 * DA Form 1059 (Service School Academic Evaluation Report), dated 31 October 2008 * DA Form 1059 (Service School Academic Evaluation Report), dated 13 December 2008 * Orders 026-120, State of New Jersey, dated 26 January 2010 * NGB Form 22-5 (Addendum to DD Form 4, Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard), dated 9 September 2010 * Orders, State of New Jersey, dated 20 October 2010 * Voucher Information, Military Pay Vouchers Type SLRP, dated from 19 October 2009 through 12 January 2011 (19 pages) * Memorandum for Record, RIARNG, dated 22 April 2014 * Memorandum from the NGB to the RIARNG, dated 5 December 2014 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests that the applicant’s military records be corrected by showing the NGB reinstated his authorization for SLRP and terminated all efforts to recoup payments made on his behalf. 2. Counsel states the applicant’s incremental SLRP payments began on 19 October 2009. He requested a transfer to the RIARNG on 9 September 2010, which was approved. He transferred and was placed into a 13B MOS (Cannon Crewmember) because there were no available positions for MOS 63B. He was assured that he qualified for SLRP and his payments continued. The applicant’s education was financially possible because of the SLRP. However, as he approached the date of his discharge, he was notified that he did not in fact qualify for SLRP because of a discrepancy in his contract, due to not holding the skill for which he contracted. The applicant requested an exception to policy (ETP) which was not granted. Furthermore, the NGB was looking to recoup the SLRP payments. 3. Counsel provides no additional documentation. 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. A DD Form 4, dated 28 July 2008, as filed in his Official Military Personnel file (OMPF), shows the applicant enlisted in the NJARNG for a period of 6 years beginning in the rank of sergeant, pay grade E-5. 3. Annex L to the applicant’s DD Form 4, dated 28 July 2008, as provided by the applicant, shows the applicant enlisted as a prior service applicant for a minimum of 3 years in the ARNG of the United States. The contract indicates that he already held critical MOS 63B, for which he was enlisting and was authorized SLRP. The contract further stated that he must remain in this MOS for 3 years of his contract. The contract provided that his SLRP would be terminated if he voluntarily transferred out of his contracted MOS or SLRP eligible unit. The applicant’s initials indicate that he read and understood all of the provisions of his contract. 4. Two DA Forms 1059, dated 31 October and 13 December 2008, indicate the applicant successfully completed Phases I and II of training for MOS 63B. 5. An NGB Form 22-5, dated 9 September 2010, shows the applicant acknowledged his having voluntarily transferred interstate to the RIARNG. The document shows his MOS as 13B, and as a critical skill. He was required to report to his new unit within 60 days, but not later than 9 November 2010. The Soldier and unit representative both signed the document. 6. Orders 293-047, State of New Jersey, dated 20 October 2010, announced the applicant’s transfer from his unit in New Jersey to his new unit in Rhode Island, effective 9 September 2010. 7. Orders 221-035, State of Rhode Island, dated 9 August 2011, announced change of MOS to 13B, effective 26 July 2011. 8. In a memorandum, dated 22 April 2014, the applicant requested an ETP concerning his SLRP. He requested relief from recoupment because he believed his contract to be valid. He wished to receive the remaining SLRP installments. He questions why he received SLRP payments if his enlistment contract and SLRP addendum were invalid. He argued that several people were required to review and approve the SLRP installments. He has an impeccable service record and has been faithful and dedicated in performing his duties. His recruiter asserts that his enlistment contract is valid and does not understand the situation. 9. On 27 October 2014, the applicant was honorably separated from the RIARNG and as a Reserve of the Army. He completed 6 years and 3 months service in the ARNG. 10. In a memorandum dated 5 December 2014, the NGB responded to the applicant’s request for an ETP. The NGB denied the applicant’s request to retain his SLRP in the amount of $20,000.00. The State Incentive Manager was to terminate with recoupment effective on the contract start date. The reason for this action was that the applicant did not hold the skill in the contracted MOS. This made him ineligible to contract for the SLRP. REFERENCES: Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests, in effect, correction of his military records to show he was authorized the SLRP incentive. Furthermore, he asks that the recoupment action be terminated and the remaining incentive payments be made. 2. The available evidence clearly shows the applicant contracted for the SLRP incentive based on a specific MOS. His contract explained the incentive would be terminated if he voluntarily transferred out of the contracted critical skill. The contract further specified that he was to have held the MOS at the time of making the contract, which he did not. The applicant initialed the contract indicating that he had read and understood these conditions. 3. According to the evidence, the applicant voluntarily transferred out of the contracted MOS and transferred to another unit in a different state less than a year after enlisting. Furthermore, he accepted and was trained in a different MOS. 4. The applicant’s contract clearly stated the required conditions for receipt of SLRP. He did not meet these conditions. The unit’s error in approving his SLRP is unfortunate, but does not justify an SLRP incentive for service in 63B that he did not perform. //NOTHING FOLLOWS// ABCMR Record of Proceedings 20150000953 Enclosure 1