ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20160019807 APPLICANT REQUESTS: * reversal of the National Guard Bureau's (NGB) decision to deny his request for an Exception to Policy (ETP) to retain the $50,000.00 Student Loan Repayment Program (SLRP) incentive in the New York Army National Guard (NYARNG) * in the alternative if the SLRP denial cannot be reversed he requests direct payment of a $10,000.00 Officer Accession Bonus (OAB) * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Bonus control number screenshot * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 17 July 2011 * NGB Form 600-7-5-R-E (SLRP Addendum), dated 17 July 2011 * DD Form 2475 (Department of Defense Educational Loan Repayment Program Annual Application), dated 14 May 2013 * Memorandum, Subject: Notification of Incentive Discrepancy and ETP Process, dated 9 October 2013 * self-authored letter to the State incentive manager, dated 16 October 2013 * Memorandum, Subject: Request for ETP for SLRP for the applicant, dated 7 August 2014 * Memorandum, Subject: ETP for SLRP, dated 18 September 2014 * ARNG information sheet * applicant’s Department of the Army (DA) photograph * awards, decorations, personnel documents and evaluations * Annex A to Policy Memorandum Number 09-026 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part: a. when he reenlisted in 2010, the ARNG agreed to provide SLRP up to $7,500 per year for 6 years (this arrangement was to be unaffected by his subsequent direct commission). The first year, the ARNG made the payment. After that, NYARNG's education office noticed an error and told him they would not pay without an ETP. His ETP request was denied in August 2014, which exhausted his administrative remedies. b. Specifically, the following are true: 1) He was fully eligible for the SLRP when his reenlistment contract was signed and his bonus control number was issued and valid when he signed his contract - therefore, the ARNG should have never stopped paying his SLRP, and the ETP was unnecessary 2) After the ARNG decided the ETP was necessary, it erred by summarily denying the ETP. The letter notifying him of the ETP denial contained no substantive explanation for the denial. Instead, the letter wrongly claimed the SLRP was not offered to him at the time of reenlistment. The statement was clearly contrary to the facts he laid out in his ETP request, and suggests the reviewer simply issued a form letter denial without truly reviewing the particular facts of his case 3) When he accessed into the Judge Advocate General Corps, he would have received a $10,000.00 accession bonus had he not been receiving the SLRP (which was later denied). c. He requests in the alternative, direction of immediate payment of the $10,000.00 OAB which the Army deemed him ineligible for because the Army deemed him eligible for the SLRP at the time. He learned there was a bonus control number issued the Thursday before he signed his documents, which was one digit different from a second, issued the Tuesday after he signed his documents. As a matter of contracts law, the Army's administrative error in its own paperwork, which he had no way of knowing, and subsequently relied upon, would not void the contract after he held up his end of the bargain. d. The NYARNG decided otherwise, however, despite NGB Policy Memorandum Number 09-026 which states "Commander or designee may correct minor administrative and typographical errors found after distribution of forms, by completing DA Form 4187 (Personnel Action) to correct the DA Form 4836." The second error was an ETP review process that wrongfully denied him administrative due process by not adequately reviewing the facts of his claim. Despite his submission of an addendum which contained both a bonus control number and his signature, dated on the same day of his reenlistment, the ETP denial memorandums he received stated that he was not offered the SLRP at the time of his reenlistment, despite the clear evidence to the contrary. The memorandums also claimed he did not sign his addendum on the same day as his reenlistment. He did sign them on the same day (a drill weekend), and they were both dated that same day, and provided to the reviewer. To suggest otherwise is essentially to accuse him of falsifying the addendum. e. The bonus control number document (provided) offers the only feasible explanation for why the bonus control number on his signed contract was later input into the Army's computer. It had to have been corrected to correct a transcription typographical error. However, neither the education office nor the ETP reviewer made any effort to look this up, and he never had access to this (or even knew the database existed). 3. A review of the applicant’s service records show the following on: * 24 August 1999 – enlisted in the NYARNG and served through one reenlistment and multiple extensions * 17 July 2011 – extended his enlistment for a 6 year period, in conjunction with this extension NGB Form 600-7-5-R-E was completed showing the following in: * section 3 (Acknowledgement): * he had 2 qualifying loans and the amount would not exceed $50,00.00 * he had furnished the State incentive manager with a copy of all promissory notes and proof of disbursement upon extension * he was extending for a term of service of not less than 6 years * the addendum was assigned bonus control number S1107003NY * he endorsed the addendum on 17 July 2011 * 26 August 2013 – appointed as a Reserve commissioned officer and executed an oath of office * 7 August 2014 – by memorandum, the applicant was informed: * his request for ETP to retain the $50,000.00 SLRP was denied because his addendum was signed after the extension documents which violated Chaplain, Health Professional and Enlisted Loan Repayment Program (CHELRP) Fiscal Year 2009 * although eligible for the SLRP and he had disbursed loans, a review of the DA Form 4836 and bonus control number request did not substantiate an incentive being offered at the time of extension 4. The applicant provides: * a self-authored letter to the Board that states in pertinent part, when he accessed as an officer , he was ineligible for a $10,000.00 OAB solely because he was receiving the SLRP and the Army’s negligence and callousness in refusing to honor its obligation has weighed on his family * financial summary of the costs of the SLRP not being honored * bonus control number screenshot showing two issue dates for his bonus control numbers (14 July 2011, bonus control number S11070002NY deleted and on 19 July 2011, bonus control number S11070003NY active) * DD Form 2475 showing he applied for his annual loan payment and item 2(f) (Total of Prior Payments) shows $7,500.00 * Memorandum, Subject: Notification of Incentive Discrepancy and ETP Process wherein he was informed a bonus control number was requested after the fact * self-authored letter to the state incentive manager wherein he requested an ETP to retain the SLRP * Memorandum, Subject: ETP for SLRP wherein the Director, Military Personnel informed the applicant his request for ETP was denied because his incentive addendum was signed after the extension documents and directed termination without recoupment * ARNG information sheet wherein a $10,000.00 OAB was being offered * applicant’s DA photograph * awards, decorations, personnel documents and evaluations providing a brief on his military career * Annex A to Policy Memorandum Number 09-026 showing administrative actions associated with reenlistments and extensions 5. NGB Education Division Instruction 1.1 (CHELRP) establishes standards, policies, and procedures for the management of the ARNG CHELRP. This instruction is void of any mention of a requirement for an incentive addendum needing to be signed the same day as the DA Form 4836. 6. ARNG Selected Reserve Incentives Program (SRIP) for Fiscal Year 2010 states: * SLRP applicants must sign a 6-year service agreement * Officers who are receiving SLRP payments are ineligible for the OAB * Enlisted Soldiers who accept an appointment or commission as an officer in the Selected Reserves may continue to receive the SLRP payment as stipulated in their original contract * DA Form 4836 must be uploaded no later than the effective date of the applicant’s service agreement 7. Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), currently in effect, 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. 8. Army Regulation (AR) 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: 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. The NGB’s exception to policy denial reflects the reasons for their decision, and shows he was granted relief by their waiving recoupment of any incentive payments made. The Board agreed the applicant did not provide sufficient evidence that shows he was eligible for the SLRP, nor eligible for the OAB, if not authorized the SLRP. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. NGB Education Division Instruction 1.1 (CHELRP) establishes standards, policies, and procedures for the management of the ARNG CHELRP. This instruction is void of any mention of a requirement for an incentive addendum needing to be signed the same day as the DA Form 4836. 3. ARNG Selected Reserve Incentives Program (SRIP) for Fiscal Year 2010 states: * SLRP applicants must sign a 6-year service agreement * Officers who are receiving SLRP payments are ineligible for the OAB * Enlisted Soldiers who accept an appointment or commission as an officer in the Selected Reserves may continue to receive the SLRP payment as stipulated in their original contract * DA Form 4836 must be uploaded no later than the effective date of the applicant’s service agreement 4. DODI 1205.21 (Reserve Component Incentive Programs Procedures), currently in effect, 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. 5. 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 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) AR20160019807 0 5 1