BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160005611 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: 11 July 2017 DOCKET NUMBER: AR20160005611 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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: a. showing his Student Loan Repayment Program (SLRP) Addendum in the amount of $50,000.00 was properly executed on 23 March 2011 and the addendum was filed in his service records; b. paying the authorized student loans in accordance with the SLRP Addendum as a result of these corrections, provided he submits the appropriate student loan documents; and c. reimbursing him any SLRP funds recouped, if applicable. ______________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: 11 July 2017 DOCKET NUMBER: AR20160005611 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, approval of an exception to policy (ETP) to allow him to retain the $50,000.00 Student Loan Repayment Program (SLRP) incentive for which he contracted. 2. The applicant states: a. His 2011 enlistment contract with the Colorado Army National Guard (COARNG) contained errors. Over the past 5 years, he submitted the proper paperwork through his chain of command, but each year the Professional Education Center (PEC)/National Guard Bureau (NGB) denied his SLRP incentive and returned his paperwork to him with the expectation that he is responsible for discovering the reason for the denials. b. He exhausted all his available resources in his attempt to discover how to fix the problem. He refuses to give up on the process and he tried to get to the heart of the real problem. He refuses to accept the excuses the Education and Incentives Office gave him or their advice "to just be patient." c. Through perseverance, the Education and Incentives Office at the Joint Force Headquarters in Centennial, CO, recently corrected his military records. Now he needs a reversal of the memorandum, dated 30 November 2015, subject: Request for ETP for SRLP (Applicant). According to the memorandum, there are five reasons for his $50,000.00 SLRP disapproval: (1) Part 2b (exceeded the authorized period of non-availability in the Inactive National Guard (ING) and/or failed to extend for the period of non-availability with the required time period upon returning to an active status), which was finally corrected; and (2) the other four reasons for denial of SLRP payments were through no fault of his own, but rather the result of the clerical errors made by his recruiter and the Military Entrance Processing Station (MEPS). d. He needs the Army Board for Correction of Military Records (ABCMR) to correct this memorandum to approve his request for SLRP payment. He hopes that after waiting for 5 years, the ABCMR will fix the problem. e. He discovered the error in his military records when reviewing his ARNG Current Annual Statement. His annual statement incorrectly reflected civilian breaks in service. The Education and Incentives Office recently corrected and certified the error on 3 March 2016. f. He never exceeded the authorized period of non-availability in the ING, nor did he fail to extend for the period of non-availability within the required time frame. g. All the errors listed as reasons of non-payment of his SLRP were errors made by the Education and Incentives Office. The Education and Incentives Office told him the only way to resolve the issue of non-payment is to file a claim with the Army Review Boards Agency. It is his hope that the Army Review Boards Agency can make the necessary changes to his military records so he may receive the $50,000.00 SLRP payments. 3. The applicant provides: * NGB Form 600-7-5-R-E (SLRP Addendum – ARNG Annex L to DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)), dated 17 February 2011 * ARNG Retirement Points History Statement, dated 6 March 2016 * NGB Form 600-7-5-R-E (Annex L to DD Form 4 – Enlisted Loan Repayment Program Addendum ARNG), dated 23 March 2011 * NGB Form 21 (Annex A to DD Form 4 – Enlistment/Reenlistment Agreement ARNG of the United States), dated 23 March 2011 * DD Form 4, dated 23 March 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 August 2012 CONSIDERATION OF EVIDENCE: 1. The applicant had prior enlisted service in the U.S. Coast Guard and U.S. Coast Guard Reserve. 2. He completed the NGB Form 600-7-5-R-E (Annex L), dated 17 February 2011, which contains all of the appropriate signatures and initials and a bonus control number (BCN). Additionally, he placed his initials next to the below sections and items of this addendum, indicating his understanding and agreement: a. Section I – Applicability states, "This addendum will be completed by all persons enlisting, affiliating, reenlisting, or extending in the ARNG for the SLRP incentive." b. Section III – Acknowledgment states, "In connection with my enlistment, affiliation, reenlistment, or extension in the ARNG for entitlement to the SLRP, I hereby acknowledge that I meet the following general eligibility criteria": (1) "I am enlisting, affiliating, reenlisting, or extending into a valid, vacant position in which double-slotting is not authorized. Additional requirements may be announced through iMARC [Information Management and Reporting Center]: MOS [military occupational specialty]: 15W, UIC [unit identification code]: WP8VB0, PARA/LIN [paragraph/line]: 316/09." (2) "I have at least 1 qualifying, dispersed loan at time of enlistment/reenlistment/extension/affiliation. Currently, I have 8 (number of loans.) The total amount that may be repaid on all loans may not exceed $50,000. Loans in default at time of enlistment do not qualify for repayment under this program." (3) "I have furnished the Military Entrance Processing Station counselor (non-prior service/State Incentive Manager or his representative (prior service/current guard member) with a copy of all of my promissory notes and proof of disbursement upon enlistment/reenlistment/extension. These documents must be uploaded into iPERMS [Interactive Personnel Electronic Records Management System] and iMARC prior to issuance of a bonus control number." c. Section III – Non-Prior Service Applicants shows he placed his initials next to the below sections and items, indicating his understanding and agreement of the following portions of the addendum: (1) "I am enlisting into the ARNG for an initial service obligation of eight years, either 6x2 or 8x0, for a SLRP incentive of up to $50,000." (2) "I have scored under the Armed Forces Qualification Test (AFQT) in test score category I-IIIA (AFQT score 50 or higher) Score: 90 AFQT." (3) "I am not entitled to the initial loan repayment, or any subsequent repayment of my qualifying student loans, until I have completed Initial Active Duty for Training (IADT), including military qualification training to be deployable." d. Section III – Prior Service or Current ARNG Service Members is lined through and includes the annotation "N/A [not applicable]"; however, this section contains the following items: (1) "I am reenlisting/extending for a term of service of not less than 6 years." (2) "I am DMOS qualified for the position that I am enlisting/reenlisting/extending." (3) "I have not previously received the education Loan Repayment Plan (LRP)/SLRP as an enlistment, reenlistment or extension option in the Selected Reserves." e. Section VI – Termination states, "If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, the member shall not be eligible to receive any further loan payments, except for payments for service performed before the termination date, on a pro-rated basis." (1) "Failure to become DMOSQ [duty military occupational specialty qualified] 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." (2) "Voluntarily transfer to an ineligible military specialty." (3) "Failure to return to active status within the approved time period for non-availability or failure to extend the contracted term of service for a period of authorized non-availability within 90 days of return to active status." f. Section X – Authentication states, "I have read and understand each of the statements above and the statements contained in my enlistment/reenlistment/ extension agreement signed by me and understand that they are intended to constitute all promises or agreements whatsoever concerning my SLRP. No other promise, representation, or commitment has been made to me in connection with my enlistment, reenlistment or extension for this incentive." g. Section XI – Certification by Service Representative contains the signature of the service representative, dated 14 February 2011. 3. Annex L to DD Form 4 (Enlisted Loan Repayment Program (ELRP) Addendum – ARNG of the United States), dated 23 March 2011, shows the applicant and the service representative signed and dated the document on 23 March 2011. Annex L does not contain any language indicating a requirement for the applicant to enlist for a specific MOS to receive the SLRP. 4. His records contain an NGB Form 21 (Annex A), dated 23 March 2011, wherein he initialed the following statements: a. “Enlistment/reenlistment of a former member of the Armed Forces who was discharged prior to completion of an incurred (eight year) military service obligation. I am currently not a member of the Armed Forces of the United States. During my last previous military service I incurred a statutory military service obligation of (eight years) and when last discharged, I had not completed the full (eight years). Therefore, this enlistment into the ARNG is a term of service that will equal or exceed the period of service that is required to complete the remaining portion of the (eight year) obligation. This enlistment requires that I commence training with an ARNG unit immediately or immediately attend initial active duty for training as required. I will be required to maintain satisfactory participation in the Ready Reserve for the entire period of service stipulated on the DD Form 4 to which this is attached." b. "If I have prior military service, I understand that I may be required to attend basic training (BT). If I did not complete BT, and/or a period of full time training duty to become qualified in the MOS for which I enlisted if not already qualified." c. "If I enlist for an assignment to a position requiring airborne training and I refuse to undergo, or fail to complete such training for reasons within my control, or after receiving a parachutist rating I refuse to participate in airborne training, I will be assigned to a unit vacancy for which I am, or can be qualified, or if such an assignment is not available I will be subject to transfer to the Individual Ready Reserve (IRR) or the Inactive National Guard (ING)." d. "I understand that I will undergo training in MOS (Primary) 15 W (Unmanned Aerial Vehicle Operator)." 5. His DD Form 4 shows he enlisted in the COARNG on 23 March 2011 for a period of 6 years. 6. His DD Form 214 shows he entered IADT on 23 August 2011. 7 Orders 290-012 issued by the COARNG Element, Joint Force Headquarters, Centennial, CO, dated 16 October 2012, show he was awarded MOS 15W on 9 August 2012. 8. His DD Form 214 for the period ending 10 August 2012 shows he was honorably released from active duty for training (ADT) and transferred to Company B, 86th Brigade, Military Intelligence Detachment, in Watkins, CO. 9. His records contain a memorandum issued by the Chief, Personnel Programs, Resources and Manpower Division, NGB, on 30 November 2015, which denied his request for an ETP for the SLRP. a. NGB denied his request for the following reasons: (1) He did not enlist DMOSQ, which violates Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), paragraph E8.1.1.3. (2) He exceeded the authorized period of non-availability in the ING and/or failed to extend for the period of non-availability within the required time period upon returning to an active status in accordance with regulatory guidance which, violates DODI 1205.21, paragraph 6.7.1. (3) The Incentive Addendum is incorrect, which violates ARNG Chaplain, Health Professional and Enlisted Loan Repayment Program (CHELRP). (4) The BCN was requested before the date of enlistment with violates ARNG CHELRP. (5) His Addendum was initialed for an incorrect bonus type, which violates ARNG CHELRP. b. NGB also stated the discrepancies identified violated the DODI and the ARNG does not have the authority to approve this request. The State Incentive Manager will terminate the incentive with recoupment effective the date of the contract. The applicant may file a claim with the ABCMR in accordance with Army Regulation 15-185 (Army Board for Correction of Military Records) if he believes an error or injustice still exists. 10. His records contain an ARNG Retirement Points History Statement prepared on 6 March 2016. This form lists his status as: a. (B1 – ARNG Unit Member) from 23 March 2011 to 22 August 2011, b. (B7 – ARNG Unit Member on Initial Entry Training) from 23 August 2011 to 4 November 2011, and c. (B1) from 5 November 2011 to 23 March 2015, which was the last entry on the form. 11. The applicant is currently serving as a member of the COARNG. REFERENCES: 1. The DODI 1205.21, dated 20 September 1999, applies to incentives 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 National Guard and Reserve Components. a. Paragraph 6.7.1 (Non-availability) states, "Members of the Ready Reserve who incur a period of authorized non-availability (i.e., temporary overseas residence, missionary obligation, or overseas employment obligation, etc.) shall have their incentive suspended during the period of non-availability, those persons shall not be entitled to incentive payments. If subsequently assigned to the Reserve status and skill they had previously contracted for, members may be reinstated in the incentive program if they extend their term of service or contract for service so as to be able to serve the full original incentive contract period. Entitlement to subsequent payments shall resume on the adjusted anniversary date of satisfactory and creditable Reserve service, as appropriate. The date shall be adjusted for that period of non-availability. Failure to meet reinstatement criteria in a capacity for which previously contracted shall result in termination of the incentive and recoupment, as appropriate." b. Enclosure 8 (Written Agreement General Education Loan Repayment Program) contains the required language for the LRP/SLRP contract and states, "In connection with my (enlistment, reenlistment or extension) in the (Name of Reserve component), I hereby acknowledge that: I meet the eligibility criteria, as follows: (1) Paragraph E8.1.1.3 states, "I am (enlisting, reenlisting or extending) for assignment in a critical skill approved for loan repayment by the Secretary concerned, and currently hold that specialty or, if enlisting, shall meet critical skill qualification on completion of IADT, and agree to serve the entire enlistment in that critical skill unless removed for the convenience of the Government. I will not exceed 20 years of qualifying service under this agreement." (2) Paragraphs E8.1.2. and E8.1.2.1 state, "I incur the obligations of this contractual commitment, as follows: I am (enlisting, reenlisting or extending) for a period of __ years in a critical skill as designated for loan repayment entitlement. If this is my initial enlistment as a non-prior service member, I have selected the 6-year enlistment option. If I am prior service, I have selected the 3-or-more-year enlistment, reenlistment, or extension option." 2. NGB Education Division Instruction 1.1 (CHELRP), paragraph 2-3 (Enlisted Eligibility), dated 1 October 2009, states to be eligible for the ELRP, a Soldier must: a. be a secondary school (high school) graduate; b. enlist or reenlist in accordance with paragraph (1) below; c. Soldiers must have one or more qualifying and disbursed loans at the time of enlistment/re-enlistment/extension; d. may continue ELRP eligibility by extending for a period of not less than 6 years once they reach their 12-month extension window, if they initially contracted for the ELRP on or after 1 October 2009. Any period of extension of less than 6 years will terminate ELRP eligibility. These Soldiers may continue to extend in this manner until they reach the maximum dollar amount authorized on their initial ELRP contract; e. any new qualifying loans that were disbursed during the current contract term may be added for repayment only up-to the fifth anniversary date. Loans disbursed after the fifth anniversary date, will require a new 6-year contract extension; and f. acknowledge that payments on loans cannot exceed the $50,000, amount authorized under the initial contract, with a maximum payment of 15 percent ($7,500) cap per Soldier, per year) or $500.00 per year, whichever is greater. The annual payment will include interest as long as the combined principal and interest payment does not exceed the maximum amount authorized under the law. NPS enlistees must meet the following eligibility requirements in addition to the general requirements: (1) enlist for either a 6x2 or 8x0 enlistment option; (2) enlist into a capability set (CS), modification table of organization and equipment (MTOE), Aviation Classification Repair Activity Depot (AVCRAD), Regional Training Institute (RTI) or a Medical or Special Forces Total Distribution and Allowance (TDA) Unit; and (3) qualify as a Category I-IIIA enlistment (AFQT of 50 or higher). 3. Army Regulation 135-7 (Incentive Programs) restricts the SLRP to those Reserve Soldiers who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field. The SLRP may only be elected at the time of enlistment or reenlistment. To be eligible for the SLRP incentive, a person must contractually obligate himself/herself to serve satisfactorily, must serve in a Reserve unit for a full term of the contractual agreement, and must further obligate himself or herself to continue to serve in the same component and the same MOS unless excused for the convenience of the government. Each completed satisfactory year of service performed under this SLRP agreement establishes an anniversary date. Any qualifying loan that is at least 1 year old may then be paid in accordance with the terms of this educational enlistment incentive. 4. ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007-30 September 2009 (Policy Number 07-06) with updates, dated 10 August 2007, updated on 17 February 2009 and in effect at the time of the applicant's enlistment, states in paragraph 9 (Enlisted SLRP) that no SLRP contract may exceed $50,000, and payments on loans cannot exceed the amount authorized under the initial contract. Applicants/ Soldiers must have one or more qualifying, and disbursed loans at the time of enlistment and Soldiers must enlist into an MTOE or deploying TDA unit. Any Soldier who initially contracts for the SLRP on or after the effective date of this memorandum may continue SLRP eligibility by immediately extending for a period of not less than 6 years after the current contract term has expired. These Soldiers may continue to extend in this manner until they reach the maximum dollar amount authorized on their initial SLRP contract. The ARNG offers NPS SLRP as an enlistment incentive for NPS enlistees. It may be offered in addition to any NPS enlistment bonus. 5. The Office of the Under Secretary of Defense published a memorandum, dated 21 May 2008, subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends. This memorandum states, "A member who enters into a written agreement with specified conditions for receipt of a pay or benefit, is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit. The Deputy Secretary of Defense Policy Memorandum recognized that, at the time, members were subject to statutory repayment for any unearned portion of a pay or benefit, as appropriate." 6. Title 10, U.S. Code, section 1552, the law which governs the operation of this Board, states "The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be." DISCUSSION: 1. The applicant contends the Board should approve an ETP to allow his retention of a $50,000.00 SLRP incentive because his contract was not MOS specific and he only reclassified into a new MOS to advance his military career. 2. The evidence of record shows the applicant initially contracted for the SLRP incentive in MOS 15W on 17 February 2011. He signed and initialed the portions of this contract, acknowledging his understanding. The evidence of record also shows that on 23 March 2011 the applicant signed an NGB Form 21 (Annex A) with MOS 15W. The fact that his enlistment contract, the DD Form 4, and the SLRP addendum were not signed on the same date was not the fault of the applicant. Neither error nor confusion would have been the fault of the applicant. 3. NGB denied the applicant’s request for an ETP for an SLRP incentive because of following discrepancies: a. He did not enlist in a DMOSQ, which violates DODI 1205.21, paragraph E8.1.1.3. b. He exceeded the authorized period of non-availability in the ING and/or failed to extend for the period of non-availability within the required time period upon returning to an active status in accordance with regulatory guidance which violates DODI 1205.21, paragraph 6.7.1. c. The Incentive Addendum is incorrect which violates ARNG CHELRP. d. The BCN was requested before the date of enlistment with violates ARNG CHELRP. e. His addendum was initialed for an incorrect bonus type, which violates ARNG CHELRP. 5. Due to the errors in the applicant's contract, which occurred through no fault of his own, the Board may elect to correct his records to show he met the criteria for an SLRP incentive and that he executed a properly constituted SLRP Addendum in the amount of $50,000.00 on 23 March 2011 with a valid BCN. The errors committed in processing his enlistment in the ARNG were not errors he created and he should not be penalized because his service representative, an agent of the government, made mistakes while executing his enlistment contract. The applicant has and continues to fulfill his contractual obligations. If the Board sees fit to correct the applicant's contract, he would be eligible to receive full administrative relief in the form of payment of his authorized student loans in accordance with SLRP regulatory guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005611 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005611 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2