ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 August 2019

	DOCKET NUMBER:  AR20160019418


APPLICANT REQUESTS:  

* reconsideration of his previous request for an exception to policy (ETP) for retention of the Student Loan Program (SLRP) incentive in the Iowa Army National Guard (IAARNG)
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States) and allied documents
* Guard Annex (Enlistment/Reenlistment Agreement – ARNG)
* Army Training Requirements and Resources System (ATRRS) Course Catalog for Course 233-35H10
* National Guard Bureau (NGB) ETP denial letter
* Department of Veterans Affairs (VA) letter
* letter of support
* DA Form 2823 (Sworn Statement)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150008099 on 21 April 2016. 

2.  The applicant states:

	a.  According to the documents contained in the packet, he was converted to the military occupational specialty (MOS) 96H (Imagery Ground Station Operator) for the Navy occupational code 1733.  This was official at the time of his enlistment.  The command that he reported to did not understand the situation and attempted to send him to a MOS qualified (MOSQ) school only to find that his profile prevented him from attending.  He was told that he could not attain the MOS by his local commander.  He left the unit and MOS based on the information that was presented to him.  This claim is supported by the statements made by his former first sergeant and command that are contained in the packet.

	b.  His original request was filed within the 3 year requirement.  The current request was delayed by numerous activations as well as the time associated with gathering new evidence.  He was informed by the Military Entrance Processing Station that he would be able to pursue a commission that would not affect his SLRP (2006).  After deciding not to immediately pursue a commission, he was informed that a profile for hearing would prevent him from attending the MOSQ school (2007).  The command team advised him that he could stay with unit or leave for another position (2007).  He made the decision to move to a unit closer to home (2007).  He attended Officer Candidate School (OCS) in 2008.  He received counseling in 2009 that he could remain on the SLRP versus accepting the affiliation bonus.  After an SLRP payment was missed, he appealed through the state education office for the payment (2014).  He was informed that his request was denied and informed that recoupment would occur (2014).  He submitted an ABCMR packet (2015).  He receive a final determination from the ABCMR that his request was denied (2016).

	c.  The addition of the statement by 1SG (RT) X_. and Major X_. are significant because they were the leadership team of Company B, 2nd Battalion, 34th Brigade Special Troops Battalion (BSTB).  The information contain within are supportive on his claim and are supported by the following portion of Army Regulation (AR) 601-210 (Personnel Procurement – Regular Army and Reserve Components Enlistment Program), dated 2005, chapter 7-12d, that states, “The commander with the authority to promote may take action to deny award of the MOS the applicant has applied for…..The Soldier must be advised in writing by the commander for the reason of the MOS.  A record of this counseling…..will be entered in the Soldier’s official record as a permanent document”.

	d.  The second piece of new information is from a chart that was provided by Sergeant First Class (SFC) X_. who was the person whom he worked with to establish his initial enlistment contract.  The chart shows the occupational code he possessed as a member of the US Navy (1738) directly transferred to the 96H military occupational code.  The following portions from AR 601-210 would suggest that he was not required to attend any school to obtain the MOS.  Chapter 7-7e (Enlisted Training Options Available) states, “ Option 5 is available to prior service (PS) applicants.  Applicants who fall into this enlistment option will not require any proficiency or prerequisite training to be conducted at an individual active duty training locations.  Their proficiency or prerequisite training, as required per the MOS in which they were enlisting for, will be conducted during normal IDT at their respective troop program units.”

	e.  The following passage from AR 601-210 suggests that a decision by the local commander to deny the award of MOS is not in violation of an enlistment contract.  Chapter 7-12f (Award of MOS, Enlistment Grade, and Accelerated Promotion) states, “Denial of award of MOS to Army Civilian Acquired Skills Program Soldiers for reason cited in paragraph 7-12d will not constitute enlistment contract or agreement, nor will results in an unfulfilled enlistment contract.”  The 2002 version of AR 601-210 did not contain a chapter 10 which is the chapter addressing recoupment.  The 2013 version however does address this topic and contains the following statements.  These statements suggest that regardless of his decision to pursue a commission in the IAARNG, a recoupment action may not be appropriate.  The following statement is constant with the counseling he received during OCS.  That counseling explained to him that he could continue the SLRP or accept the affiliation.  He opted to stay on the program.

	f.  Chapter 10-5 9 (Continued Receipt of Incentives) states, “SLRP incentives for enlisted Soldiers who enter a commissioning program and/or accept an appointment or commission as an officer or warrant officer in a Selected Reserve may continue to receive SLRP payments as stipulated in their original contract so long as they remain otherwise qualified.”  Chapter 10-9c3 (Continued Receipt of lncentives) states, “Commanders will not recoup for any of the following reasons:

		(1)  When a Soldier becomes a simultaneous member of an authorized commissioning program upon commissioning or appointment as an officer in a reserve component, the SLRP or incentive will remain in effect until the terms of the original agreement are fulfilled.”

	g.  The conditions described and explained above do offer some suggestion that contrary to the original Board’s conclusion.  He did not know that accepting the changes to his contract as explained by his commanders was invalid.  He is requesting the Board to please consider the new information in addition to the previously submit information.  He believes that there were a variety of variables at play that enhanced this situation.  Initially, he was informed by SFC X_. at the Military Entry Processing Center that he could accept the MOS award, enroll in SLRP and attend OCS without any issues.  In fact, he was told that the MOS that he chose would afford the opportunity for him to attend OCS without attending any prior MOSQ school.

	h.  The second variable occurred when the command team of Company B, 2nd Battalion, 34th BSTB misunderstood that, according to regulation, he did not need to attend any formal school to attain the MOS of which he had enlisted.  This misunderstanding led the team to believe that he was ineligible for the school due to his permanent hearing profile.  These factors combined led them to the conclusion that he would need to transfer to another MOS.  This action is documented in the sworn statements provided, but any counseling regarding his incentive package was not conducted.

	i.  The third and final factor occurred while attending OCS, the state incentive manager, Master Sergeant (MSG) X_., held individual meetings with each candidate discussing their incentive options.  MSG X_ explained to him that he had two choices, either he could accept the $10,000.00 affiliation bonus associated with commissioning in the Army and pay back the SLRP amount which he had already received or remain on the SLRP.  He chose the latter.  This situation is not that unlike Soldiers of the California ARNG.  Throughout this process, he only accepted the incentives which were offered to him.  He never did or would attempt to manipulate his Army service for personal financial gain.  A recoupment would create significant financial hardship for his family.

3.  The applicant provides the following:

	a.  A letter, dated 7 February 2015, wherein the VA advised of his service-connected summary of benefits.

	b.  A letter of support, dated 31 August 2016, wherein his 1SG stated his support of the applicant’s retention of the SLRP.

	c.  A DA Form 2823, dated 28 September 2016, wherein the applicant’s former company commander stated the applicant was unable to become MOSQ for reasons outside of his control.  

4.  Review of the applicant’s service records shows: 

	a.  Having prior U.S. Navy enlisted service, he enlisted in the IAARNG on 19 October 2006, for 8 years.  On the same date, he executed and signed a Guard Annex for enlistment in MOS 96H.  The Annex stated “I am immediately reenlisting/extending in a valid position vacancy in the critical skill MOS 96H that Headquarters, Department of the Army, has authorized for SLRP.  I must remain in the contracted MOS for 3 years of my enlistment contract.”  He acknowledged he understood that his SLRP eligibility will be terminated if he voluntarily transferred out of his contracted MOS and/or SLRP eligible unit prior to the third year anniversary.

	b.  He was honorably discharged from the IAARNG, in pay grade E-6, on 14 August 2010.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 3 years, 9 months, and 26 days of net service this period.

	c.  He was appointed in the IAARNG, as a second lieutenant, on 15 August 2010.

	d.  Orders Number 237-032, issued by the IAARNG on 25 August 2010, announced his reassignment from MOS 92Y (Supply Specialist) to 09S20 (S4 Officer Candidate) effective 13 August 2010.

	e.  A DA Form 1959 shows he completed the Ordnance Basic Officer Leader Course on 25 August 2011.

	f.  On 2 August 2012, the IAARNG designated he was branch qualified in the Ordnance Corps and in the primary area of concentration (AOC) 91A (Maintenance & Munitions Material Officer), effective 15 August 2010 and 25 August 2011, respectively.

	g.  On 17 December 2014, in response to his request, the NGB denied his ETP request for retention of $20,000.00 SLRP with termination of the incentive and recoupment effective the contract start date.  The NGB official stated that the applicant did not qualify in the contracted MOS and he did not hold the skill for which contracting which violated Department of Defense Instruction Number 1205.21.  He contracted for MOS 96H on 19 October 2006.  His current AOC/MOS was 90A (Logistic Officer).

	h.  On 21 April 2016, the ABCMR found there was no evidence showing he qualified and held the contracted SLRP MOS 96H during his enlisted service and the action taken by the NGB to invalidate the incentive appeared to be proper.  His petition for ETP for retention of the SLRP was denied.

	i.  He was honorably released from the IAARNG on 24 June 2018 and was transferred to the U.S. Army Reserve (USAR).

5.  DODI 1205.21 (Reserve Component Incentive Programs Procedures) requires each recipient of an incentive to sign a written agreement stating 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.  The agreement must clearly specify the terms of the Reserve Service commitment that authorizes the payment of the incentive.

6.  ARNG Selected Reserve Incentive Program Guidance for Fiscal Year 2007, Policy Number 07-01, effective 1 October 2006, provided specific requirements for those receiving the SLRP, and included the following:  the incentive would be terminated with recoupment if the recipient moves to a non-bonus skill or unit, unless the move is due to normal career progression or is required by the needs of the ARNG. 

7.  AR 601-201, prescribes eligibility criteria governing the enlistment of persons, with or without PS into the Regular Army, USAR, and the ARNG. 

8.  By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 




BOARD DISCUSSION:

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.
After reviewing the application and all supporting documents, the Board found relief was not warranted.  The applicant’s contentions were carefully considered.  Based upon the documentary evidence provided by the applicant and found within the applicant’s military service record, the Board found no physical profile was provided for the Board to consider, there was no proof of a MOS conversion, and the DA Form 2808 within his medical record did not corroborate his contentions.  Based upon the preponderance of the evidence, the Board determined there is insufficient evidence to amend the previous Board’s decision.

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 to amend the decision of the ABCMR set forth in Docket Number AR20150008099 on 21 April 2016.
	 
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.

REFERENCES:

1.  Department of Defense Instruction 1205.21 (Reserve Component Incentive Programs Procedures) prescribes procedures for incentive programs.  Section 6.2 (Written Agreements) states, in part, as a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating 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.

2.  Army National Guard (ARNG) Selective Reserve Incentive Program Guidance for Fiscal Year 2007, Policy Number 07-01, effective 1 October 2006, provided specific requirements for those receiving the SLRP.  

	a.  The ARNG offers the SLRP as an enlistment incentive for all prior service enlistees.  The total amount of SLRP will not exceed $20,000.00 with a maximum payment of 15% or $500 per year, whichever is greater (53,000 cap per Soldier per year).  Payment is based upon the original principle and does not include interest.  The enlistee must meet several criteria.  

	b.  The incentive would be terminated with recoupment if the recipient moves to a non-bonus skill or unit, unless the move is due to normal career progression or is required by the needs of the ARNG. 

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that 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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160019418


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