BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160007106 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 BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160007106 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. BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160007106 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 record to show he has no Student Loan Repayment Program (SLRP) debt, to be reimbursed for prior payments he made toward that SLRP debt, and approval of his request for an Officer Accession Bonus (OAB). 2. The applicant states: a. He requests forgiveness of his SLRP debt from the U.S. Army Reserve (USAR) so that he no longer owes a debt and the payments collected from his pocket can be reimbursed. With his continued dedication to serve, he also requests that his $10,000 commissioning bonus be reinstated, which was denied due to clerical errors and wrongful information. b. By regulation, he is still eligible and entitled to the SLRP. The Army National Guard (ARNG) is still trying to pay the SLRP. The USAR gave many different reasons for the debt initiation, all of which can be disproven by paperwork or communications from incentive managers. c. After SLRP payments were made by the USAR for the years 2010 through 2014, they decided the payments were made in error, due to the payments being processed incorrectly. 3. In a separate, self-authored statement dated 21 March 2016, the applicant states, in effect: a. The purpose of his request is to correct an error between the USAR and the ARNG in order to clear a debt in the amount of $5,719.07. Collection of the debt was initiated by the Defense Finance and Accounting Service (DFAS). He would like reimbursement of the payments he made toward satisfying the debt, and he would like his eligibility for the SLRP reinstated. In addition, he would like to receive the $10,000 OAB he applied for. b. This is a timeline of his events: * 2 June 2005 – entered the USAR * 27 February 2008 – transferred to the ARNG * 27 February 2008 – joined the ROTC as an ARNG non-scholarship cadet * 7 May 2010 – appointed in the ARNG * 7 May 2010 – signed $10,000 OAB with witnesses * 9 January 2012 – denied OAB due to non-initiation of a bonus control number (BCN) * 26 October 2012 – transferred to the USAR * 8 June 2015 – received debt notification in the amount of $5,719.07 * 10 March 2016 – received waiver denial from the National Guard Bureau (NGB) c. The ARNG policy provides that "Soldiers who contracted for SLRP as an enlisted Soldier will retain eligibility and receive anniversary payments as a commissioned officer…" This policy provision allowed him to retain eligibility for SLRP after he was commissioned. Due to an ARNG error, a Bonus Control Number (BCN) was initiated for him, which resulted in his loss of a $10,000 commissioning bonus. Due to multiple clerical errors and miscommunication between the USAR and the NGB, he received an SLRP debt of $5,719.07. d. He further lists reasons DFAS, USAR, and NGB representatives cited as reasons why his SLRP payments and recoupment waiver request, as well as his OAB, were denied. 3. The applicant provides: * NGB Forms 22 (NGB Report of Separation and Record of Service) for the periods ending 5 May 2010 and 11 April 2012 * excerpt of NGB-ARM Policy Number 05-02, Selected Reserve Incentive Program (SRIP) policy guidance for the period 14 December 2004 – 30 September 2005 * DA Form 5261-4 (SLRP Addendum), dated 2 June 2005 * Federal Stafford Loan Master Promissory Note, dated 9 January 2007 * DD Form 368 (Request for Conditional Release), dated 13 February 2008 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 19 February 2008 * Written Agreement – OAB Addendum, dated 7 May 2010 * Direct Loans, dated 20 August 2010 * OAB Exception to Policy (ETP) denial, dated 9 January 2012 * USAR Form 28-R (Notice of Indebtedness), dated 6 May 2015 * Statement of service, dated 10 June 2015 * DA Form 2789 (Waiver/Remission of Indebtedness Application), dated 23 July 2015 * DD Forms 2475 (Department of Defense (DOD) Educational LRP Annual Application), dated 2 July 2014, 14 April 2015, 8 April 2017 * payment account records * email communications between 31 January 2012 and 3 March 2016 * DFAS denial of his request for an SLRP recoupment waiver, dated 10 March 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted into the USAR on 2 June 2005. He signed an SLRP Addendum for enlisting in military occupational specialty (MOS) 92Y (Supply Specialist), which was approved for a maximum SLRP of $10,000. He acknowledged that his SLRP eligibility would be terminated if he transferred between the USAR and the ARNG unless the Chief, NGB, authorized continual entitlement at the time of enlistment in the ARNG. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 August 2006 shows the applicant entered active duty training (ADT) on 15 June 2006 for the purpose of completing his MOS 92Y training and was released from ADT on 18 August 2006. 3. The applicant was approved for a conditional release from the USAR on 13 February 2008, and he enlisted in the Washington ARNG (WAARNG) on 19 February 2008. 4. The applicant's record is void of evidence that shows the Chief, NGB, authorized his continued eligibility for the SLRP at the time of his appointment in the ARNG. 5. Orders 127-903, issued by WAARNG on 7 May 2010, show the applicant was honorably discharged from the ARNG on 6 May 2010. An NGB Form 22 (Report of Separation and Record of Service) for the period ending 6 May 2010 shows he was discharged on appointment as a commissioned officer. 6. A DA Form 71 (Oath of Office – Military Personnel) shows the applicant was appointed as a Reserve commissioned officer of the Army on 7 May 2010. 7. Concurrent with his appointment, the applicant signed an OAB Written Agreement to serve in the Selected Reserve in area of concentration (AOC) 92A (Quartermaster), which was a critical officer skill that was designated for bonus entitlement by the Secretary of Defense or his delegate. * the service representative signed and dated the form * the applicant signed, but did not date the form * the witnessing officer signed and dated the form * no BCN is shown on the form 8. The applicant was denied the OAB due to his receipt of the SLRP incentive he contracted for with the USAR. He subsequently requested an ETP through the NGB. The NGB denied his OAB ETP request on 9 January 2012. The Chief, Guard Strength Directorate, notified him that: a. His ETP to retain the $10,000 OAB offered at the time of commission on 7 May 2010 was denied. b. He was commissioned into the WAARNG on 7 May 2010 and contracted for the OAB in the critical AOC 92A. However, a thorough review of the documentation shows that he had an active SLRP contract from the USAR, dated 24 June 2005, and had received monetary benefits under the SLRP contract. In addition, he failed to date the OAB Addendum and a BCN was not requested or approved for the OAB. Service members with active enlisted SLRP contracts are not authorized receipt of the OAB per Title 37, U.S. Code, section 308j. Therefore, the request for ETP cannot be approved. c. The official further recommended the applicant request a record correction through the ABCMR if there is a belief that an error or injustice exists. 9. An NGB Form 22 for the period ending 11 April 2011 shows the applicant was honorably released from the WAARNG upon his resignation. He was assigned to the USAR Control Group (Reinforcement). 10. The applicant received a notice of indebtedness on 6 May 2015, in the amount of $5,219.07, from the USAR Command (USARC) Pay Center. A DD Form 2789, dated 23 July 2015, shows he requested a waiver of the debt he acknowledged resulted from the SLRP. 11. DFAS notified the applicant on 10 March 2016 that he was not eligible for the requested waiver consideration. a. Recoupment was made for payments totaling $5,719.07, issued during the period 2 June 2010 through 2 June 2014. He enlisted in the USAR where he contracted for the SLRP effective 2 June 2005. He was transferred into the ARNG effective 27 February 2008. In accordance with the SLRP Addendum, Section VII (Termination), he was ineligible to receive SLRP payments due to his entry into the ARNG. Due to administrative error, his SLRP account was not terminated properly. Upon reentry into the USAR effective 26 October 2012, he requested payment of SLRP and received erroneous payments in the amount of $5,219.07 for the periods 2010 through 2014. DFAS verified that the amount of his debt was equal to the amount he requested for waiver. b. Title 10, U.S. Code, section 2774, provides authority for waiving claims for erroneous payments of pay and allowances made to or on behalf of members of the uniformed services. In his implementing instructions, the Comptroller General ruled that any payment that is legal and proper when paid may not be considered for waiver. At the time SLRP payments were made on his behalf, payment was proper; therefore, the debt was not an erroneous payment subject to waiver. To be considered for waiver, the debt must result from the overpayment of an erroneous pay or allowance. The debt in this case did not arise from "pay or allowances" as that term is used in Title 10, U.S. Code, section 2774, because educational expenses are not considered "pay or allowances." 12. The applicant provides email communication in reference to his SLRP and OAB concerns. The emails consistently show USARC and NGB officials at multiple levels of authority denied his request for waiver of his SLRP recoupment due to his transfer from the USAR to the ARNG and his request for payment of his OAB request due to having the SLRP, not dating the OAB Addendum, and not having a BCN on the OAB Addendum. 13. In the processing of this case, an advisory opinion was obtained on 31 August 2017, from the Division Chief, Soldier Support Division, USARC. The advisory official noted and opined: a. Recommend disapproval of his request for forgiveness of his SLRP debt and reimbursement of prior recouped payments. b. Termination of SLRP will occur if a Soldier separates from an enlisted status in a Selected Reserve unit and transfers into the ARNG. SLRP does not automatically transfer from one component to the other. c. His SLRP records indicate that he enlisted in the USAR on 2 June 2005, and was authorized to receive $10,000 towards SLRP. His SLRP anniversary date was 2 June 2006, and each year thereafter, for as long as he remained in good standing with the USAR. He transferred to the ARNG on 27 February 2008, subsequently terminating his SLRP incentive. d. Upon transferring into the ARNG, his SLRP incentive should have been terminated under the terms of his USAR contract; however, this action did not occur. Further review determined the USARC Pay Center processed payment for entitlement years 2006 through 2014. As a result, he incurred a debt of $5,219.07 for entitlement years 2010 through 2014. 14. The applicant was provided a copy of this advisory opinion on 8 September 2017, to provide him an opportunity to comment and/or submit a rebuttal. He responded on 13 September 2017, stating, in effect: a. According to his originally signed SLRP Program Addendum, sections II & III, he was entitled to SLRP as long as he remained in good standing with the Selected Reserve, either ARNG or USAR, for the entirety of his contract. In addition, according to Army Regulation 601-201, paragraph 10-5, he is authorized SLRP incentives during transitions from the USAR to the ARNG, and incentives will continue after commissioning. b. The Chief, Guard Strength Directorate, NGB, rejected his OAB of $10,000 under Title 37, U.S. Code, section 308j, because he was awarded and authorized SLRP on 24 June 2005. c. During his natural career progression, he was offered increased educational benefits through the ARNG based on the fact he was eligible to retain his SLRP incentives and receive a commissioning bonus of $10,000. The ARNG revoked his OAB based on the SLRP entitlement. REFERENCES: 1. Title 10, U.S. Code, chapter 1609, provides that the Secretary of Defense may repay any loan incurred for educational purposes made by a lender in the case of any person for service performed as a member of the Selected Reserve of the Ready Reserve of an Armed Force in a Reserve Component and in an officer program or military specialty specified by the Secretary of Defense. 2. Title 37, U.S. Code, section 308j, provides that the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to accept an appointment as an officer in the Armed Forces; and to serve in the Selected Reserve of the Ready Reserve in a skill to mitigate a current or projected significant shortage of personnel for a period specified in the agreement. A person may not receive an affiliation bonus or accession bonus under this section and financial assistance under chapter 1608, 1609, or 1611 of Title 10 or under section 302g of this title for the same period of service. 3. Army Regulation 135-7 (ARNG and Army Reserve 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 military occupational specialties and units which is updated every 6 months. This educational incentive may only be elected at the time of enlistment or reenlistment. This incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment. 4. National Guard Regulation 600-7 (Selective Reserve Incentive Programs), chapter 2, states enlistment bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to counselors and reported to NGB. The State Incentive Manager will verify accession packets as prescribed by state policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level. 5. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) in effect at the time, prescribes eligibility for the OAB requires the person to complete a DA Form 5261 (Selected Reserve Incentive Program – Enlistment Bonus Addendum) as part of the enlistment agreement. The guidance applies to newly appointed commissioned and warrant officers (2LT or WO1) who agree to serve in a Selected Reserve unit of the component in which appointed. a. To be eligible for the bonus individuals must: (1) Agree to accept an appointment as an officer in the ARNG or USAR and serve in a designated critical area of concentration/military occupational specialty (MOS) in a Selected Reserve unit of the component in which appointed, for a period of not less than 6 years from date of appointment. (2) Not be accepting an appointment as an officer serving in the Selected Reserve for the purpose of qualifying for a military technician position where membership in a Reserve Component is a condition of employment (a one-time temporary assignment as a military technician is excluded), or be accepting an appointment to fulfill either an Active Guard Reserve position or an assignment as an individual mobilization augmentee. (3) Possess an area of concentration/MOS designated by the Secretary of the Army for bonus entitlement, or agree to accomplish the necessary training prescribed by the Secretary of the Army to achieve the designated critical area of concentration/MOS. (4) Not currently be receiving financial assistance under Title 10, U.S. Code, Chapters 1608, 1609, or 1611, or special pay under Title 37, U.S. Code 302g, and will not receive such assistance or serve any related service obligation during the period of this agreement. Soldiers who have previously received loan repayments under Chapter 1609 may request termination of Student Loan Repayment Program (SLRP)/College Loan Repayment Program and contract to receive the OAB, provided they do not apply for or receive SLRP/College Loan Repayment Program payments for service performed after their appointment. (5) Fill a critical skill in the Selected Reserve. ARNG and USAR will forward a critical skills list with justification for payment of the OAB to Deputy Chief of Staff, G–1, on a semi-annual basis for approval as part of their SRIP. (6) Successfully complete an officer basic course or warrant officer basic course in his or her designated area of concentration/MOS within 36 months of the date of appointment. b. The OAB amount will be paid in accordance with the annual SRIP after completion of officer basic course or warrant officer basic course. c. Officers accessed or affiliating with the ARNG or USAR must meet the eligibility criteria and sign an agreement applicable to the type of bonus to be received. The signed agreement will be attached to the NGB Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG) or DA Form 61 (Application for Appointment), as applicable. 6. A memorandum issued by the Office of the Chief, Army Reserve, on 23 June 2009, extended on 10 August 2009, and updated on 24 December 2009, subject: Army Reserve FY 09 2nd Half SRIP Policy Guidance through 30 September 2009, provides that: a. The OAB is restricted by critical AOC/MOS at the time of application. b. The recipient will receive a lump-sum payment of $10,000 after assignment and award of duty qualifying AOC/MOS. c. The recipient will incur a 6-year obligated term of service based on the date of appointment or date of agreement, whichever is later. MOS 92A is eligible for bonus only if primary AOC is on the SRIP list. d. The Officer Accession Critical Skill List, effective 1 July 2009 and extended until 30 June 2010, shows critical skills by AOC/MOS eligible for a bonus. It shows AOC 92A as being eligible for an OAB. DISCUSSION: 1. The applicant requests, in effect, correction of his record to show he has no SLRP debt, to be reimbursed payments he made to the SLRP debt, and approval of his request for an OAB. He contends his transfer from the USAR to the ARNG should not have terminated his SLRP. In addition he contends he was denied an OAB due to clerical errors. 2. The evidence shows the applicant enlisted in the USAR for the SLRP. He signed a SLRP Addendum indicating he would complete MOS training, which he did. 3. The applicant contends the governing regulations and policy allow for the continuation of his SLRP entitlement upon transfer from the USAR to the ARNG. His SLRP Addendum stated his eligibility would be terminated if he transferred between the USAR and the ARNG unless the Chief, NGB, authorized continual entitlement at the time of enlistment in the ARNG. There is no evidence and he did not provide evidence that shows he was authorized continual entitlement. 4. The applicant transferred from the USAR to the ARNG on 27 February 2008; subsequently, his SLRP incentive was terminated. 5. The applicant applied for an OAB on 7 May 2010, while being appointed as a Reserve commissioned officer with subsequent appointment in the ARNG. The form was properly authenticated by a service representative and a witness; however, the applicant did not date the form. In addition, he did not receive a BCN because it was learned he had an active SLRP incentive. The evidence of record shows the SLRP incentive should have been terminated on 27 February 2008 when he transferred into the ARNG without having an approved continual SLRP entitlement agreement from the NGB. Therefore, he would have received a BCN if the SLRP was properly terminated. He would have been fully eligible for the OAB had that occurred. 6. DFAS and USARC acknowledged his SLRP incentive was not properly terminated in 2008 when he transferred from the USAR to the ARNG. The applicant applied for SLRP payments in 2012 upon his reentry into the USAR. SLRP payments were made for the years 2006 through 2014; however, after further review, it was determined he incurred a debt for the years 2010 through 2014. 7. DFAS informed the applicant that U.S. Code does not allow for the waiver of his SLRP indebtedness. At the time SLRP payments were made on his behalf, payment was proper; therefore, the debt was not an erroneous payment subject to waiver. To be considered for waiver, the debt must result from the overpayment of an erroneous pay or allowance. The debt in this case did not arise from "pay or allowances" as that term is used in Title 10, U.S. Code, section 2774, because educational expenses are not considered "pay or allowances." 8. Title 10, U.S. Code, section 308j, states a person may not receive an accession bonus and financial assistance under Title 10, U.S. Code, chapter 1609 (Repayment of Educational Loans), for the same period of service. 9. The evidence of record shows he was offered both the SLRP and OAB incentives in connection with his enlistment and appointment in the USAR and ARNG, respectively. Despite his SLRP incentive not being properly terminated upon his enlistment into the WAARNG, he entered into an OAB agreement in good faith. Nevertheless, U.S. Code prohibits receipt of both incentives for the same period of service, and recoupment of the SLRP is required. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018600 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007106 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2