ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20160015292 APPLICANT REQUESTS: * remission of indebtedness * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Defense Finance and Accounting Service (DFAS) response to Congressional * self-authored email to DFAS * Loan Repayment Program Annual Application * incentives entitlement regulation * discharge certificate * DFAS Account Statement * self-authored letter to DFAS * two self-authored letters to Treasury, Bureau of the Fiscal Service * letter from Bureau of the Fiscal Service * letter from DFAS * student loan paperwork * Hearing Request Administrative Wage Garnishment * letter from DFAS regarding re-audit * response from DFAS regarding requested hearing * summary of administrative hearing * unit attendance roster * letter from DFAS regarding indebtedness FACTS: 1. The applicant states: * he's contacting the Board regarding his Department of Defense debt collection issue he's had since October 2015 * he's provided letters and arguments to the proper authorities proving the debt is invalid * his attempts have been ignored or the facts misconstrued * he signed an enlistment contract in August 2007 with the US Army Reserves (USAR) * the contract included the Student Loan Repayment Program (SLRP) * DFAS is attempting to recoup the 2010 SLRP payment of $3,000 * he disputes that he owes any recoupment for the entitlement * per Army Regulation 135-7, there is no criteria under which recoupment may occur of the SLRP * he is unable to find any provision for recoupment in the regulation * his understanding is payments are earned year-to-year * he earned and was credited $3000 toward his student loan forgiveness * once he meets the requirement for the payment, they became an entitlement to him that he earned through honorable service * a document from DFAS in response to a Congressional states the applicant was not eligible to receive the payment but does not explain why * he's having DFAS understand repayment disbursement requires eligibility verification prior to disbursement * his eligibility would be verified and the proper personnel would sign off on it * he should not be penalized for the mistakes of DFAS or the Army * the government should not be exempt from negligence of their own personnel * DFAS also confused his current address from a previous address so they failed to properly mail him his debt notification * he lacks confidence in their ability to accurately read through documents based on this * the hearing that was held wrongfully accused him of not trying to contact DFAS * the letters were being sent to his parents' house * when he received them he called and was on hold for about an hour before being directed to an email address which didn't work * he was notified his debt was being sent to collection in February 2016 * he contacted DFAS again but could not reach them via telephone * he again emailed the address provided in the voice message * the voice message has since been deleted from their system * he found another email to use and contacted them in February 2016 * it took them until April to respond, the response was that there was no debt on record for the applicant * he felt the issue was resolved, at that point * he was mistaken * he is now contacting the Board because his wages are subject to being garnished * he is requesting a hearing before the Board to dispute this case and the injustice in person 2. The applicant's record contain the SLRP addendum, which was signed on 6 August 2007. The applicant signed saying he understood he had to serve satisfactorily, repayment of the loan would be made after each year of satisfactory service, and the SLRP could be terminated if he became an unsatisfactory participant. The SLRP addendum does not say anything about recoupment of the SLRP. 3. The applicant also signed a Certificate and Acknowledgement for the USAR on 6 August 2007. He signed stating he understood he had to participate satisfactorily during the entire period of his enlistment, if he accrues nine or more unexcused absences during any continuous 365 day period he will be declared an unsatisfactory participant, and bonus payments and loan repayments may be terminated and recouped if he becomes an unsatisfactory participant. 4. The applicant provides letters from DFAS to himself and regarding a Congressional Inquiry. The letters all maintain the debt for SLRP is valid and needs to be repaid. DFAS also held a hearing regarding the SLRP debt and determined the debt remains valid and the amount is correct. 5. DFAS states the debt is for a payment made to the applicant's student loan in 2010. There are no records to indicate if the applicant was a satisfactory performer in 2010. There is no evidence regarding why the debt was incurred in 2010. 6. The applicant was transferred to the USAR Control Group (Reinforcement) on 26 February 2014 for unsatisfactory participation. He was honorably discharged from the USAR on 11 August 2015. 7. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), states 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. 8. In the processing of this case, an advisory opinion was obtained on 21 February 2019, from the Educational and SLRP Program Manager, USAR Command. The advisory official noted and opined the applicant's debt remains valid, and his incentives were terminated due to Unsatisfactory Participation. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 9. The applicant was provided a copy of this advisory opinion on 27 February 2019, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 10. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The applicant contracted for the SLRP. He was informed the SLRP would be terminated if he became an unsatisfactory participant. He was determined to be an unsatisfactory participant when an SLRP payment was made. Accordingly, it was determined his SLRP should have been terminated due to the unsatisfactory participation. DFAS provided him with due process to determine if the debt was just, and they substantiated the debt he owed. An advisory opinion was provided in which the advisory official determined the debt was valid. He was provided an opportunity to rebut the advisory; however, he did not respond. Based upon the preponderance of evidence, the Board agreed the debt is valid. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Department of Defense Instruction 125.21 (Reserve Component Incentive Program Procedures) states in Paragraph 6.2, as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped. That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), states: a. Entitlement to an incentive will be terminated the following termination reason applies before the fulfillment of the service described in the member’s written agreement. That member will not be eligible to receive any further incentive payments, except for service performed before the termination date. Once declared ineligible, termination of an incentive will not affect a Soldier’s responsibility to serve his or her current statutory or contractual service commitment. Termination of eligibility to an incentive will occur if a Soldier becomes an unsatisfactory participant per AR 135–91. The effective date for termination entered into the personnel data reporting systems for Soldiers declared unsatisfactory participants is the date of the first unexcused absence. b. Members who are not granted relief through the waiver process for incentives received must refund a pro-rata amount to the Government. The only exceptions are cases in which prorated recoupment is not authorized. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015292 2