IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20160007192 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: 11 August 2016 DOCKET NUMBER: AR20160007192 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. IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20160007192 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 approval of an exception to policy (ETP) to retain eligibility for the Student Loan Repayment Program (SLRP) incentive and the reimbursement of a $6,000.00 SLRP recoupment. 2. She states, in effect, her U.S. Army Reserve (USAR) unit recouped a $6,000.00 SLRP debt from her drill paychecks because her USAR unit coded her as absent without leave (AWOL) and as "U" (Unsatisfactory Participant). Her USAR unit coded her as AWOL and "U" from 9 February 2013 to 10 February 2013; from 1 March 2013 to 3 March 2013; from 7 December 2013 to 8 December 2013; from 10 January 2014 to 12 January 2014; and from 8 February 2014 to 9 February 2014. This AWOL coding caused the termination of her SLRP entitlement and the $6,000.00 recoupment action. However, she had an approved split training request from C Company, 321st Military Intelligence (MI) Battalion (BN) and attended drill on those dates. In February 2014, she transferred to the Utah (UT) Army National Guard (ARNG). She went to several Inspector Generals (IG) to resolve her issue and was finally notified that she had been erroneously coded AWOL. However, the ARNG denied her ETP because the erroneous AWOL coding and recoupment was a Reserve issue and the ARNG was unable to access the Reserve system to fix the error. 3. She provides: * U.S. Army Reserve Command (USARC) Form 28-R (Notice of Indebtedness), dated 19 August 2014 * Defense Finance and Accounting Service (DFAS) Webpage Dialog Boxes * Unit Assembly Roster * web form – DD Form 2475 (Notice of Indebtedness - Account Terminated), dated 19 August 2014 * DFAS Military Leave and Earnings Statement (LES) * three DA Forms 2823 (Sworn Statement), dated 19 October 2015 and 23 November 2015 * IG letter, dated 7 January 2016 * National Guard Bureau (NGB) memorandum, subject: Request for ETP for SLRP [Applicant], dated 28 March 2016 CONSIDERATION OF EVIDENCE: 1. On 6 July 2011 the applicant enlisted in the USAR in TX for 8 years. a. Her enlistment contract includes an SLRP Addendum showing she contracted for completion of initial active duty training and qualification in military occupational specialty (MOS) 35M (Human Intelligence Collector) with an approved maximum student loan repayment amount of $40,000. The applicant signed this document on the 6 July 2011. The document provides, in pertinent part, in the following instructions: (1) Section IV – Obligation. "I will serve satisfactorily, as prescribed by the National Guard or Department of the Army regulations, the obligated term of service in the Selected Reserve according to my enlistment, reenlistment, or extension agreement unless expressly excused for the convenience of the Government. I incur the oblations of this contractual agreement. I am enlisting, for 6 years in the ARNG/USAR. I agree to serve my initial 6 years in the Selected Reserve in the MOS I have indicated." (2) Section VII – Termination. I understand that the terms of this addendum will remain in force as long as I continue to participate satisfactorily under a contractual agreement as a member of the Selected Reserve. I further understand that the terms of this agreement and my entitlement to loan repayment under the SLRP will be terminated should I become an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions). (3) Section VIII – Statement of Understanding states "I have read and understand each of the statements above and have had my questions satisfactorily answered. I understand the statements above are intended to constitute all promises or agreements whatsoever, concerning my entitlement, reenlistment, or extension under the SLRP. Any other promise, representation, or commitments, made to me in connection with my enlistment, reenlistment, or extension for the SLRP have been entered below in my own handwriting, or they are hereby waived." The applicant signed this form on 6 July 2011. (4) Section IX – Certification by Service Representative, contains the signature and the date of the applicant's counselor. b. Her enlistment contract contains a Reserve Annex showing she enlisted for an assignment in C Company, 321st MI BN, Round Rock, TX, with Unit Identification Code (UIC) WZP6C0 in MOS 35M. 2. The applicant provided a USARC Form 28-R, dated 19 August 2012, showing she was indebted to the Government in the amount of $6,000.00. 3. The applicant provides a print out of a DFAS webpage dialog box showing that on or around 6 July 2013, DFAS made SLRP payments to two of her student loans in the amount of $2,747.60 and $1,752.40 (a total of $4,500.00). It is unclear if there were additional loans paid during this period or prior to this period. 4. A DA Form 368 (Request for Conditional Release), dated 12 January 2014, shows she requested release from C Company, 321st MI BN and enlistment in the UTARNG. The commander approved her request on 5 February 2014 with a release validation date until 5 May 2014. 5. On 7 February 2014 the applicant enlisted in the UTARNG. 6. A Unit Assembly Roster shows while the applicant was assigned to UIC WZP60 (C Company, 321st MI BN) she was coded "U" for the entire day (two 4 hour periods) for Battle Assembly attendance conducted on the following dates: * 9 February 2013 and 10 February 2013 * 1 March 2013, 2 March 2013, and 3 March 2013 * 7 December 2012 and 8 December 2013 * 10 January 2014, 11 January 2014, and 12 January 2014 * 8 February 2014 and 9 February 2014 7. An inquiry, subject: Notice of Indebtedness, dated 19 August 2014, states her USAR unit records indicate the applicant was on the Unsatisfactory Participant List. In accordance with her USAR unit's guidance, effective 20 August 2012, Soldiers who accrue nine or more unexcused absences within a 12-month period or fail to complete annual training without proper authority will have their Selected Reserve Incentive Program incentive terminated effective the first "U." The date of the applicant's first "U" was 9 February 2013, which terminated the applicant's SLRP incentive. 8. The applicant's record is void of a split training option request. 9. The applicant's LES and a webpage document indicate she paid off her debt of $6,000 on or about May/June 2015. 10. She provides three supporting statements from members of the UTARNG unit who maintain that the applicant was not AWOL and attended all required drills with the 141st MI BN. a. On 19 October 2015, the Readiness Noncommissioned Officer (NCO), A Company, 141st MI BN said he completed all paperwork pertaining to her attendance and submitted it to her unit in Texas and the unit confirmed receipt. However, since he has changed jobs and computers, he no longer has those documents on file. b. On 19 October 2015, the first sergeant (1SG), A Company, 141st MI BN stated in December 2013 to January 2014, he was aware of the applicant's intent to transfer to the UTARNG. He recalled that on a number of occasions, she coordinated with a variety of personnel to train in Utah while processing her paperwork for transfer. He states in January 2014, with permission from the applicant's first line leader, she drilled with A Company. After performing the drill, she was informed that she was denied permission to drill in Utah. He contacted her chain of command who stated that she was granted permission to train in Utah and expect the forms for signature. He reiterates that the applicant did attend drills at A Company, 141st MI BN in December 2013 and January 2014 and he has email traffic concerning the miscommunication. However, none of the documentation to which he refers was available for review in this case. c. On 23 November 2015, the Unit Administrator, E Company, 141st MI BN stated that the applicant was marked AWOL and by regulation, the unit was required to send certified letters upon each AWOL and to keep those letters on file. However, when he contacted the unit, the unit refused to provide him with copies of those letters. The applicant eventually went to the Reserve IG who informed him that since the 321st MI BN would not respond to his request, there was nothing he could do in this case. 11. On 7 January 2016, the Assistant IG, MI Readiness Command, Fort Belvoir, VA, responded to the applicant's request for IG action concerning her issue of erroneous AWOL coding and reimbursement of funds paid due to the erroneous entries. He stated: a. The issue that the applicant was erroneously coded AWOL/unsatisfactory participant for Battle Assembly attendance while assigned to C Company, 321st MI BN was founded. In accordance with Army Regulation 135-91 her unit should have provided assistance with locating a new unit of assignment near her new location. If a unit in the vicinity of her new location could not be found, then the unit should have either transferred/reassigned her to the Inactive Ready Reserve (IRR) or develop a detailed plan of action and counseled her on how to proceed with rescheduling training and what the requirements were to accomplish these arrangements. b. Although her issue concerning the erroneous AWOL was founded, the applicant will need to submit an ETP packet through the ARNG channels to have her SLRP bonus reinstated. The MI Readiness Command does not have the visibility of her anymore in the USAR database because of her transition to the ARNG. Therefore, the USAR cannot take any action to remove/overturn the AWOL/unsatisfactory participation coding. 12. On 28 March 2016, the Chief, Personnel Programs, Resources and Manpower Division, NGB, denied the applicant’s request for an ETP for the SLRP. The representative stated that when the applicant became an unsatisfactory participant, she violated Department of Defense Instruction (DoDI) 1205-21, paragraph 6.8.1 and the ARNG does not have the authority to approve the request. The State Incentive Manager would terminate the incentive with recoupment effective the ninth period of unsatisfactory participation. REFERENCES: 1. Army Regulation 135-91 prescribes policies and procedures governing the various types of service obligations and participation requirements for the ARNG and USAR. a. Paragraph 4-6 states an unsatisfactory participant is a Soldier who has nine or more unexcused absences from scheduled inactive duty training (IDT) periods occur during a 12–month period. Unless an absence is authorized, a Soldier failing to attend a scheduled single or multiple unit training assembly (MUTA) will be charged with an unexcused absence. When absence involves a MUTA (or any portion of a MUTA), the charge will be one unexcused absence for each 4–hour period not attended, but not to exceed four unexcused absences. If absent from a MUTA 5 or MUTA 6, the maximum number of unexcused absences charged is four. Unexcused absences remain charged to the Soldier on reassignment or reenlistment in another Reserve Component (RC). b. Paragraph 4-20 states that on receipt of a notice of planned relocation, the unit commander will obtain assignment instructions from the State adjutant general when a Soldier is relocating within the same State. If relocation is to another State, call the Adjutant General of that State. Ask for assistance in determining if an ARNG assignment is available in that area. c. Paragraph 4-22 states that Soldiers who are unassigned on arrival at their new location will present the letter of instructions to the unit commander or service component where assignment is requested and furnish their current address to the losing unit commander if not done earlier. d. Paragraph 4-24 states that when Soldiers are not assigned or enlisted in another unit, on the 95th day after the effective date of the leave of absence, the Soldier may be reassigned/transferred to the IRR. 2. DoDI 1205.21 provides guidelines for the Reserve Component Incentive Programs Procedures. Paragraph 6.8, Termination and Recoupment states If entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments, except for payments for service performed before the termination date. Unless granted relief, the member must refund a prorated amount to the Government, if such termination is for, in pertinent part, failure to participate satisfactorily in required training during the entire period of service agreed to in accordance with the written agreement. 3. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), in effect at the time, provides Army policy for USAR training and retirement point credit. a. Paragraph 24B (Attachments of 89 days or less for training only, or USAR School Attachment in a Student Status) stated that the unit of attachment will prepare a DA Form 1380 (Army Reserve Record of Individual Performance of Reserve Duty Training). The unit of assignment will enter code "H" in column g for Unit Training Assembly dates and enter in remark in column h (example) "P 16 January 1982 C2" (as in case of attachment to ARNG). b. One copy of the DA Form 1380 will be retained by the unit to post the appropriate entry on the following month's DA Form 1379 (USAR Components Unit Record of Reserve Training). A copy of the DA Form 1380 will be sent to the designated input station and a copy filed in the Personal Financial Record. DISCUSSION: 1. The evidence of record shows the applicant enlisted in the USAR for 8 years on 6 July 2011 in MOS 35M. In conjunction with her enlistment, she was eligible for the SLRP in the amount of $40.000. 2. The evidence further shows she signed the SLRP Addendum with the understanding that the SLRP would be terminated if she became an unsatisfactory participant. 3. A Unit Assembly Roster shows the applicant had 12 periods listed as unsatisfactory participation while she was assigned to C Company, 321st MI BN between 9 February 2013 and 9 February 2014. However, the evidence shows on 5 February 2014, the commander approved her request for a conditional release and she subsequently enlisted in the UTARNG. 4. The applicant provides three supporting statements from the 1SG, Unit Administrator, and the Readiness NCO of her UTARNG unit who maintain that she was not AWOL and attended drills with A Company 141st MI BN. a. The Readiness NCO said he completed all paperwork pertaining to her attendance and submitted it to her unit in Texas and the unit confirmed receipt. However, since he has changed jobs and computers, he no longer has those documents on file. b. The 1SG recalled the applicant coordinating with a variety of personnel to train in Utah while processing her paperwork for transfer. He said after the applicant was denied permission to drill in Utah, he contacted her chain of command who granted her permission to train in Utah. He was told to expect the forms for signature. He said she did attend drills in December 2013 and January 2014 and he has email traffic concerning the miscommunication. c. The Unit Administrator said the unit was required to send certified letters upon each AWOL and to keep those letters on file. However, her former unit refused to give him or the Reserve IG copies of those letters. The Reserve IG informed him that since the 321st MI BN would not respond to his request; there was nothing he could do in this case. 5. She provides a letter from the Assistant IG, MI Readiness Command, 2 years after the fact, indicating that she was erroneously coded AWOL/unsatisfactory participation for Battle Assembly attendance. He maintains that her unit should have provided assistance with locating a new unit of assignment near her new location. However, there is no evidence and she has not provided any to show she informed her unit of her intent to relocate to Utah prior to her request for transfer on 12 January 2014. 6. The evidence of record shows her unsatisfactory participant status occurred from February 2013 to February 2014. The Readiness NCO maintains that at one point, he had paperwork pertaining to the applicant's attendance, but; he no longer has this information. Additionally, the 1SG maintains he has email traffic concerning the miscommunication, but he has failed to provide this information. 7. Since the applicant had an approved transfer to UTARNG on 5 February 2014, she should not have been coded as an unsatisfactory participant for 8 February 2014 and 9 February 2014. However, there is no evidence and the applicant has not provided sufficient evidence to prove that she attended drills on 9 February 2013 through 12 January 2014, the days in which she was coded as "U." Further, the evidence shows she reimbursed a prorated amount of $6,000.00 to the Government as required for her failure to participate satisfactorily as agreed in her written contract. It appears that if she had valid documentation to support her claim of drilling with another unit, she would have presented that information in August 2014, upon being notified of the debt and prior to paying the $6,000.00. 8. Nevertheless, the regulation is specific in requiring her attached unit to complete a DA Form 1380 and forward it to her parent unit as well as her Personal Financial Record for pay and ultimately documenting her service for retirement purposes. There is no evidence (DA Form 1380 or LESs) to show she complied with this regulatory requirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007192 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007192 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2