BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20180000388 APPLICANT REQUESTS: to reinstate his: * Student Loan Repayment Program (SLRP) * Montgomery GI Bill Kicker APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum for Record – Subject: Removal of Unsatisfactory Performance Record from Pay Records, dated 25 June 2017 * Change to Pay Records in RLAS, dated 26 June 2017 * Letter to Congressional Representative, , dated 26 February 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He was not aware that he had accrued so many “U’s.” Having the “U’s” directly interfered with him being able to utilize the Montgomery GI Bill Kicker and the Student Loan Repayment Program, a part of his initial enlistment contract. In September 2011, he was ordered to active duty in support of Operation Enduring Freedom at Fort Gordon, GA, where he remained until his departure from active duty in August 2014. b. His initial contract date in November 2008 was for six years. His intent was to transition to the Individual Ready Reserve (IRR) for his last two years in November 2016 after completing the 6 years, ending his military service obligation. He was under the impression he was automatically placed in the IRR. He spoke to an Army Career Counselor who called him several months after he came off of active duty and asked what his plans were for reenlistment. He indicated he was already in the IRR with plans to leave the Army Reserve when his expiration term of service (ETS) date became available. She said they had to start a transition packet, and she would call back within a week with more information. A few months later, the same counselor called, introduced herself, and asked what his plans were for reenlistment. He reiterated his plans to ETS as previously explained to her. She assured him an email with the necessary packet would be sent so he could fill it out. Another few months passed and the same counselor called and the same thing happened. He told the counselor he was getting frustrated with the lack of progress and how he continued to get forgotten. c. In early 2016, he was assigned to the First Battalion, 354th Regiment in Oklahoma. The notice of the transfer was sent to an outdated address. In February, an Army Career Counselor called him for the fourth time and made him aware he was assigned to a unit. He was given a contact at the unit. He reached out to the point of contact via email on 16 February 2016. He stated he wanted to transition to the IRR and was currently assigned to the 1st Battalion, 354th Regiment. He was having difficulty finding a point of contact in the reserve unit. He was supposed to transition into the IRR in November 2014 and had little progress with the issue. He lived in Georgia and was not certain how he ended up attached to the unit. He was with the 7245th when he mobilized, but after 3 years of active duty, he was not returned to his home unit. He was trying to get his paperwork straightened out so that he could transition into the IRR and so that his benefits would not be affected. He further stated any help or guidance would be much appreciated. He called several times and received no response. He did not realize that he was placed in an “Unsatisfactory Participation” status. At the same time he was requesting assistance, he found out the Unit Administrator was seriously ill and had passed away. He states this may be the reason for the poor communication throughout the entire process. d. He finally made contact with a unit member in 2017, after realizing he was having trouble with his MGIB Kicker entitlement. This increased his motivation to get in contact with the unit to figure out exactly what was going on. Extremely frustrated, he then learned he was receiving U's for missed drills. This was the same unit he had tried to contact, and they failed to return his calls. In addition, the unit he was assigned to was over 800 miles from his home. He finally received notification they would update the “U” status by having him perform Rescheduled Training (RST). Since he only had 3 months left, they had him complete an ETS packet rather than a request to go into the IRR. His ETS packet was completed with the new Unit Administrator in February 2017. e. The Unsatisfactory was corrected to Satisfactory, but now he was dealing with the aftermath, specifically, loss of the Montgomery GI Bill Kicker and the Student Loan Repayment in the amount of $20,000. He received 12 months of full-time GI Bill benefits in the past year, but hadn't received the GI Bill Kicker incentive that he became ineligible for in December of 2015. Having the Unsatisfactory Participation issued caused him to lose out on over $5,000 of MGIB Kicker benefits. f. The submission of his student loans to the US Army SLRP Program came back denied based on his ineligibility date of December of 2015. Denial of that benefit accounts for approximately $16,000 of his student loan repayment benefit. He is requesting an Exception to Policy to fix the SLRP and his MGIB Kicker benefits so that he can continue his education and continue moving forward. 3. A review of the applicant’s available service records indicates the following on: a. 26 November 2008 – the applicant enlisted in the US Army Reserve (USAR) in the rank of Private (PVT)/E-1 for 8 years with a 6 year obligation in a Reserve Component unit. He elected to participate in the Student Loan Repayment Program in the amount of $20,000 and Montgomery GI Bill Kicker. b. In conjunction with his enlistment, he was entitled to Non-prior Service Montgomery GI Bill Kicker for $350 per month, Non-prior Service Enlistment Bonus for $20,000, and Student Loan Repayment Program for $20,000. (DD Form 1966 (Record of Military Processing). His Certificate and Acknowledgement United States Army Reserve Service Requirements and Methods of Fulfillment states he understands he must participate satisfactorily during the entire period of his enlistment. He understands if he fails to participate satisfactorily, his entitlement to educational assistance under the Montgomery GI Bill or to bonus payments and loan repayments, which were based on the servce in the Selected Reserve, may be terminated and may be required to repay all or a portion of the funds received to the US Government. c. DA Form 5261 (Selected Reserve Incentive Program – Enlistment Bonus Addendum) (1) Section 3 (Acknowledgement) he was contracting for an initial Selected Reserve term of service of at least 6 years concurrent contractual obligation and the incentive entitlement is based on the unit vacancy authorized by Headquarters Department of the Army for a bonus entitlement. The unit he is enlisting for is 7245th IMS (Blood Donor Center), and military occupational specialty 68K which was authorized by Headquarters Department of the Army for bonus entitlement. (2) Section 4 (Obligation) he will serve his initial 6 years in the Selected Reserve in the military occupational specialty as indicated in Section 3. (3) Section 5 (Entitlement) item 3, entitled to the Non Prior Service Enlistment Bonuses in the amount of$ 20,000. Payment of the enlistment bonus would be initiated by his unit commander. He further understood he could not receive any portion of the Enlistment Bonus until he received his high school diploma equivalent, completed initial active duty for training, and was awarded his MOS, or received sufficient training to be deployable. (4) Section 7 (Termination), the terms of this agreement and his entitlement to enlistment bonus would be terminated should he become an unsatisfactory participant per AR 135-91. (5) He endorsed this form with his signature and it was certified by a service representative. d. DA Form 5261-4 (Student Loan Repayment Program Addendum) was completed showing the following in: (1) Section 3 (Acknowledgement) he was contracting for an initial Selected Reserve term of service of at least 6 years concurrent contractual obligation and a statutory military service obligation of 8 years. (2) Section 4 (Obligation) he will serve his initial 6 years in the Selected Reserve in the military occupational specialty as indicated in Section 3. (3) Section 5 (Entitlement) item 3, repayment of the qualifying loan(s) would be made after each year of satisfactory service in the Selected Reserve after securing the loan (s) and reaching the anniversary date of this agreement. For each year of satisfactory service in the Selected Reserve, the loan amount to be repaid will be as follows: a maximum of $20,000.00 would be paid during his military career, and it would not increase, and it was based on the MOS shown in section three. He also understood that repayment is not automatic under the terms of the addendum, and it was his responsibility to initiate payment by completing DD Form 2475 (Department of Defense Educational Loan Repayment Annual Application) and submitting it to personnel officials in his command. (4) Section 7 (Termination), the terms of this agreement and his entitlement to loan repayment under the SLRP would be terminated should he become an unsatisfactory participant per AR 135-91. (5) He endorsed this form with his signature and it was certified by a service representative. e. DA Form 5435 (Statement of Understanding – The Montgomery GI Bill Selected Reserve) (1) Section 3 (Qualifications) he was contracting for 6 years in the Selected Reserve by enlisting, reenlisting or extending an enlistment or reenlistment in the US Army Reserve with concurrent assignment to the Selected Reserve. Not be an unsatisfactory participant, elect to credit service toward the Montgomery GI Bill for active duty service, be receiving financial assistance as a member of the Reserve Officer Training Corps or pursuing graduate studies or a course of education leading to a degree above a baccalaureate. (2) Section 4 (Entitlement) item 3, he understands the basic entitlement to educational assistance under the Selected Reserve Montgomery GI Bill (SEL RES MGIB) will be established the day he meets all of the qualifications specified in Section 3. (3) Section 7 (Termination), the terms of this agreement and his entitlement to SEL RES MGIB would be terminated should he become an unsatisfactory participant per AR 135-91. (4) He endorsed this form with his signature and it was certified by a service representative. f. DD Form 214 dated 9 July 2010 reflective of his service on active duty from 5 March 2009 through 9 July 2010. g. Orders 11-188-00003, published by Headquarters, North East Medical Area Readiness Support Group, dated 7 July 2011, assigned the applicant to the 7245th IMSU Detachment 34 with an effective date of 7 July 2011. h. Orders 12-243-00051, published by Western Medical Area Readiness Support Group, mobilized the applicant in support of Operation Enduring Freedom (Other than Homeland) with a report date of 25 September 2012 to Fort Gordon, GA, for an active duty period of 350 days. i. Orders 13-122-00032, published by Headquarters, Army Reserve Medical Command, reassigned the applicant involuntarily for mobilization to the 4204 US Army Hospital Detachment 5, Topeka, Kansas with an effective date of 2 May 2013. j. Orders 13-129-00026, published by Central Area Medical Readiness Support Group, mobilized the applicant in support of Operation Enduring Freedom (Other than Homeland) with a report date of 8 September 2013 to Fort Gordon, GA, for an active duty period of 350 days. k. Orders 218-0906, published by US Army Signal Center of Excellence and Fort Gordon, Georgia, released the applicant from active duty and reassigned him to 6252 US Army Hospital Detachment 98, San Diego, CA, with an effective date of assignment of 6 September 2013. l. DD Form 214 dated 6 September 2013 reflective of his service on active duty from 23 September 2011 through 6 September 2013. m. Orders 191-0912, published by US Army Signal Center of Excellence and Fort Gordon, Georgia, released the applicant from active duty and reassigned him to 4204 US Army Hospital Detachment 5, Topeka, KS, with an effective date of assignment of 15 August 2014. n. DD Form 214 dated 15 August 2014 reflective of his service on active duty from 7 September 2013 through 15 August 2014. Item# 23 (Type of Separation) states “Release from Active Duty” Item# 28 (Narrative Reason for Separation) states “Completion of Required Active Service.” o. DD Form 2648 (Preseparation Counseling Checklist for Active Component (AC), Active Guard Reserve (AGR), Active Reserve (AR), Full Time Support (FTS), and Reserve Program Administrator (RPA) Service Members) reflects the checklist was prepared on 30 April 2014. On this form under Section 4 Item# 18. Reserve Affiliation he states “No”. p. Orders 17-059-00003, published by Headquarters, 63rd Regional Support Command, Mountain View, California honorably discharged the applicant from the United States Army Reserve with an effective date of 28 February 2017. He was held beyond his normal discharge date through no fault of the Soldier. q. DA Form 5016 (Chronological Statement of Retirement Points) indicates: He served in the military from 26 November 2008 through 28 February 2017. During this time, he obtained 6 qualifying years of service towards retirement. A breakdown of his Retirement Points Detail shows he failed to obtain enough points to obtain a qualifying year of service from 27 November 2014 through 26 November 2015, 27 November 2015 through 26 November 2016 and 27 November 2016 through 28 February 2017. 4. The applicant’s records do not contain: a. Documentation pertaining to receipt of Unsatisfactory Participation letters b. DA Form 2475 (DOD Educational Loan Repayment Program Annual Application) c. Copy of the Addendum for MGIB Kicker, however, it is validated as being a benefit on several other forms in the record. 5. The applicant provides: a. Memo signed by the Commander of the 1st Battalion, 354th Regiment acknowledging the removal of the applicant’s Unsatisfactory Performance Records for Pay and changing it to Excused Absences from May 2015 through January 2017. The Commander further acknowledged the Soldier did not receive a welcome letter or battle assembly scheduled after being assigned to the battalion. Their record shows the applicant was only contacted one time in twelve months for unsatisfactory participation and he was never counseled. b. A Change to Pay Records in RLAS shows the applicant’s record was updated to remove the “U” and replaced it with a new code of “A.” The Commander updated his record on 26 June 2017 to reflect correction of his record effective 1 August 2015. 6. See all applicable supporting guidance below under REFERENCES. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board noted that the applicant agreed to serve in a Reserve Component unit for a period of 6 years, followed by 2 years of service in the IRR to fulfill his statutory military service obligation. By the time he was released from active duty on 15 August 2014, he was only months away from fulfilling his 6-year obligation to remain in an active status in a Reserve Component unit. The Board agreed that communication failure on the part of a gaining unit as well as a misunderstanding regarding the applicant's intent to be transferred to the IRR after 6 years of service inadvertently led to the termination of his eligibility for incentives. Based on a preponderance of evidence, the Board determined the record should be corrected to show the applicant retained his eligibility for his enlistment incentives. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show his eligibility for the Montgomery GI Bill Kicker and the Student Loan Repayment Program was not terminated and paying him any monies he is due as a result of this correction. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Department of Defense Instruction 1205.21 (Reserve Component Incentive Program Procedures) provides guidance regarding the Reserve Component Incentive Program. It 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. 3. Army Regulation (AR) 135-7 (Incentive Programs) chapter 5.1 (SLRP) states this incentive is offered to qualifying non-prior , prior and in-service personnel on signing a contractual agreement for a specified term of service in the Selected Reserve and executing DA Form 5261-4-R. Selection of the SLRP incentive and execution of DA Form 5261-4 must be made by the person when he or she signs a Selected Reserve contractual agreement. The maximum amount payable for the SLRP is $20,000.00 for a Soldier who contracts for a critical MOS that has been established by Headquarters Department of the Army. a. Chapter 5.1-5. Obligation states to be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily per AR 135-91. A person must serve in the Selected Reserve for the full term of the contractual agreement. b. Chapter 5.1-6 (Termination) Entitlement to the SLRP will stop if the soldier becomes an unsatisfactory participant under AR 135-91. For TPU personnel, the termination date entered into personnel data reporting systems must be the date the soldier attained his or her 9th unexcused absence (AR 135-91, para 4-11a), or the date the soldier is determined to be an unsatisfactory participant for failing to attend or complete the entire period of annual training (AT) (AR 135-91, para 4--13). 4. Army Regulation 621-202 (Army Educational Incentives and Entitlements) states the MGIB-SR Kicker’s purpose is to recruit and retain enlisted Soldiers, WOS and officers in critical specialties, skills, and/or critical units. To qualify for the MGIB Kicker, SELRES members must enlist for a period not less than 6 years, completed inactive duty training, possess a MOS and/or skill to meet the SELRES unit position vacancy critical specialty requirement, continue satisfactory participation in the SELRES for which they contracted, and for USAR complete DA Form 5435-1 (Statement of Understanding- The Selected Reserve Montgomery GI Bill Kicker Program). Termination of the MGIB-SR Kicker incentive will occur should a Servicemember be terminated prior to fulfillment of his or her 6-year contract agreement and obligation and unsatisfactory participation (the date the Soldier attained their 9th unexcused absence, per AR 135-91). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000388 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1