BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160015104 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: AR20160015104 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: AR20160015104 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 correction of his Colorado Army National Guard (COARNG) records to show he is entitled to the Student Loan Repayment Program (SLRP). If disapproved, he requests termination of the contract without recoupment action by the Government. 2. The applicant states: a. Three years and two months after his enlistment contract was signed, he was informed by the State Education Office that his enlistment extension for military occupational specialty (MOS) 09S (Officer Candidate School (OCS)) SLRP violated the Army National Guard (ARNG) Selected Reserve Incentive Programs (SRIP) Number 11-01. He was unaware of this violation and signed the addendum in good faith. b. Following the guidance from the issuing authority all steps were adhered to and followed as expected for National Student Loan Data System (NSLDS) submissions. He has been working with the State Incentives Office and Unit Administrator since 2012 with no discrepancies identified. c. He was instructed that the extension of 2 years and 2 months was required to meet the 6 year service obligation. A previous exception to policy (ETP) was written and approved. d. In the past 3 years he has done all required steps and actions as indicated in the contract that he signed in good faith. There was no intent on his part not to serve a 6-year term when he signed the SLRP incentive contract. His current positive standing in the COARNG and Army during the past 6 years including a deployment and supporting the 2013 Colorado floods attests to his intentions, dedication, commitment, and character. e. He should not be held accountable for the lack of understanding of the rules or regulations by the administering officials or the incentives or entitlements section of the State. If his ETP request is disapproved, he requests terminating his incentive contract without recoupment action. 3. The applicant provided copies of two unsigned ETP requests. CONSIDERATION OF EVIDENCE: 1. With 4 years of honorable service in the United States Marine Corps (USMC), the applicant enlisted in the COARNG. His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows he enlisted in the ARNG of the United States (ARNGUS) on 25 June 2009 for a period of 6 years and in the COARNG for a period of 6 years. Block 8 (Agreements) shows the additional details of his enlistment/reenlistment are in Section C and Annex A (DD Form 4 (Enlistment/Reenlistment Agreement – ARNG). 2. On 2 July 2009, the applicant and a Government official signed and completed National Guard Bureau (NGB) Form 21, Annex A in conjunction with his enlistment on 25 June 2009. It shows in Section III (Explanation to Applicant), in pertinent part: a. Enlistment/reenlistment of prior service member having no remaining statutory military service obligation. "I am currently not a member of the ARNG, but I have previous military service in the Armed Forces of the United States and I have no remaining statutory military service obligation. This enlistment will require that I commence training with an ARNG unit immediately. 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. "I understand that I will undergo training in primary MOS 09S." 4. On 6 August 2011, the applicant signed and completed an Oath of Extension of Enlistment or Reenlistment, which shows he extended his current term of service for 2 years and 2 months to 24 August 2017. It also shows he understood that he would receive the SLRP as per Annex L. The applicant and certifying officer also signed this form. 5. An NGB Form 600-7-5-R-E (Annex L – SLRP Addendum ARNG) completed in conjunction with his 6 August 2011 extension of enlistment shows in: a. Section III (Acknowledgment) in connection with his enlistment, affiliation, reenlistment, or extension in the ARNG, for entitlements to the SLRP, he acknowledged that he had met the following eligibility criteria: * he was enlisting, affiliating, reenlisting, or extending into a valid incentive position and will remain in an authorized position for his entire service obligation (excess, overstrength, and manually loaded vacancies are not authorized incentives) * the applicant must have 6 years remaining on his service obligation when signing the SLRP incentive addendum or an extension * if extending or reenlisting, he must be duty MOS qualified (DMOSQ) and the primary position holder for that MOS * an applicant enlisting under the 09S option is exempt from the requirements in this paragraph, and may fill either an officer or enlisted position, and additional requirements may be announced in annual SRIP policy * prior service or current ARNG service members must be enlisting/reenlisting/extending for a term of service of not less than 6 years, for an SLRP incentive of up to $50,000 * prior service or current ARNG service members must be DMOSQ for the position that he is enlisting/reenlisting/extending b. Section VIII (Termination Without Recoupment) for MOS 09S, the SLRP contract will be terminated upon completion of the initial service obligation. Extensions are not authorized. c. Section IX (Recoupment Without Termination) the SLRP is normally not recouped because time is served prior to receipt of the incentive. However, when overpayment or payment in error is made, recoupment may occur when a waiver of indebtedness is not obtained. SLRP recoupment is authorized for erroneous receipt of payment(s). Recoupment is against the Soldier concerned, not the lender. d. Section XI (Recoupment Not Authorized) shows commanders will not recoup for select reasons including enlisted members who accept an immediate appointment as a commissioned officer in any component of the Army excluding the Individual Ready Reserve and the Inactive National Guard. e. Section XVI (Authentication) shows the applicant signed the form. f. Section XIV (Certification by Service Representative) shows the form was signed by the service representative and witness. g. An SLRP control number (CN) is included on each page of the Addendum. 6. His record contains an NGB Form 22 (National Guard Report of Separation and Record of Service) showing he enlisted in the COARNG on 25 June 2009 and was honorably discharged on 19 August 2011 to accept an appointment as a commissioned officer. He completed 2 years, 1 month, and 25 days of net service this period. It also shows in item 12 (Military Education) that he completed Officer Candidate School in August 2011. 7. On 20 August 2011, he took the oaths as a Reserve commissioned officer in the rank of second lieutenant in the Army Reserve and in the COARNG. 8. On 7 February 2012, a Service School Academic Evaluation Report shows the applicant satisfactorily completed the Transportation Basic Officer Leader Course and was awarded area of concentration (AOC) 88A. 9. In support of his case, the applicant provided copies of two ETP requests as described in his initial statement above. He did not provide his NSLDS data or the amount of monetary incentives he received before the NGB directed termination. 10. In a memorandum, dated 19 November 2015, the National Guard Bureau (NGB) Chief, Personnel Programs, Resources, and Manpower Division, disapproved the applicant’s request for an ETP to retain the SLRP. a. The memorandum points out: (1) He was in a commissioning program and was not in a DMOSQ position at the time of contract which violates Department of Defense Instruction (DODI) Number 1205.21 (Reserve Component Incentive Programs Procedures) paragraph E8.1.1.3. (2) His bonus control number was requested before the date of reenlistment/extension which violates ARNG SRIP 11-01. (3) He contracted for AOC/MOS 09S and his current AOC/MOS is 92A (Quartermaster General). b. These discrepancies violates a 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 contract start date. REFERENCES: 1. DODI Number 1205.21 prescribes DoD policy and procedures for management of the Reserve components incentive programs to include the SLRP. a. Paragraph 6.8 (Termination and Recoupment) states if entitlement to an incentive is terminated for any reason other than fulfillment of the service described in the member's written agreement, the member must refund a prorata amount to the U.S. Government. b. Paragraph 6.9.2 (Exceptions to Recoupment) when a Service member becomes a simultaneous member of an authorized officer commissioning program or accepts an immediate appointment as an officer in a Reserve component, and, in either case, has served more than 1 year of the incentive contract term following receipt of the initial incentive payment, no recoupment is required. c. Enclosure 8 prescribes written agreement wording for enlistment under the Loan Repayment Program. 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. Army Regulation 135-7 (ARNG and Army Reserve – Incentive Programs), in part, 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 MOSs and units, which is updated every 6 months. This educational incentive may only be elected at the time of enlistment or reenlistment. a. Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date. Any qualifying loan which is at least a year old may then be paid in accordance with the terms of this educational enlistment incentive. b. The incentive contracts pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment. These payments continue on a yearly basis unless the Soldier loses eligibility. c. Recoupment is not required for separation to accept an immediate appointment as a commissioned or warrant officer in the Reserve of the Army with assignment to the Ready Reserve. However, if accepting an immediate appointment as an officer in the Ready Reserve, recoupment is required if less than 1 year of the contract term for which the bonus is payable has been served. 3. National Guard Regulation 600-7 (Selected Reserve Incentive Programs) governs policies and procedures for the administration of the ARNG SRIP programs. The State Incentive Manager is the State representative designated to provide internal incentive oversight for authorization, verification, validation, establishment, monitoring, termination and submission of all payments, to include recoupment of incentives. The SLRP Manager is the State representative designated for the management of the SLRP. Issues, verifies, validates, establishes and monitors all SLRP incentives. 4. Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States 5. Title 10, U.S. code, section 1552 states a Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. DISCUSSION: 1. With 4 years of prior enlisted active federal service, the applicant enlisted in the COARNG on 25 June 2009 for a period of 6 years in MOS 09S. On 6 August 2011 he extended his enlistment by 2 years and 2 months. When he extended his enlistment, he completed Annex L (SLRP). A bonus control number was assigned to his Annex L. The date the bonus control number was obtained by a Government representative is unknown. 2. On 19 August 2011, he was honorably discharged as an enlisted Soldier from the COARNG to immediately accept a commission in the Reserve of the Army and COARNG effective 20 August 2011. He completed OCS and while in school he held DMOSQ 09S. As an officer he completed training in AOC 88A (Transportation Officer). The NGB stated in 2015 that the applicant currently holds AOC 92A. 3. NGB states his bonus control number was requested before the date of reenlistment/extension of 6 August 2011 and he was not serving in his contracted MOS in November 2015. DoD policy outlined in DODI 1205.21 and his Annex L allows for an exception for recoupment action and retention of an SLRP for a Soldier who is in a commissioning program and then accepts a commission as an officer in the Reserve component. There is one clear stipulation that the individual must have served for 1 year of his incentive contract. Within 14 days of signing his enlistment extension and incentive forms, the applicant was discharged to accept an appointment as a Reserve Commissioned Officer. 4. The applicant did not provide data to show the incentive amount he has received based on his 6 August 2011 enlistment extension SLRP addendum. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015104 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015104 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2