IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230000570 APPLICANT REQUESTS: * Payment of $50,000 of Student Loan Repayment Program (SLRP) awarded in connection with his initial enlistment contract in the Army National Guard (ARNG) * Back pay and restoration of his time in grade (TIG) on the grounds of an improper reduction due an absence without leave (AWOL) that should not have been deemed as such APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Annex L, Student Loan Repayment Program Addendum * List of Loans * Unexcused Absence letter, 7 August 2017 * Applicant’s letter to Commander, 9 September 2017 * Vehicle Registration Card * State AGO Form 202, Notification to Impose State Non-Judicial Punishment, 9 August 2017 * Email Exchange FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 he is requesting $50,000 of student loan repayment as stated in his initial contract and restoration of time and grade and back pay for a demotion to specialist (SPC)/E-4 due to an AWOL that should not have been counted as an AWOL. The SLRP loans should be paid because the incentive was in his contract, and he followed the directions of leadership to execute payment. He is not sure why it was never actually paid but at the time he was under the impression that he had done his part properly. The demotion should be corrected because he was excused for the drill by his leadership. This issue was pushed up to the first sergeant at the unit and was supposed to have been dealt with then but was never properly addressed or rectified. He was led to believe that it was being handled but it never was. 3. Review of the applicant’s service records shows: a. He enlisted in the Mississippi Army National Guard (MSARNG) in the rank/grade of specialist (SPC)/E-4 for 8 years on 20 July 2012. In connection with this enlistment, he signed Annex L, SLRP Addendum. It states: (1) He has 4 disbursed loan(s) existing in the amount of $51,689.00. The total amount of repayment for qualifying loan(s) will not exceed $45,000 for a 6x2 or $50,000 for 8x0 enlistment option. (2) He is enlisting into the ARNG for a period of not less than six-years in the Selected Reserve (SELRES) (6x2 or 8x0 enlistment option). (3) He enlisted for training in military occupational specialty 91H, Track Vehicle Repairer, and assignment to Company D, 106th Brigade Support Battalion. b. He entered active duty for training from 24 September 2012 to 22 March 2013 and completed training for award of MOS 91H. c. He was advanced to sergeant (SGT)/E-5 in the ARNG on 8 October 2015. d. On 7 August 2017, the company commander of the 3656th Maintenance Company sent the applicant a Letter of Instructions - Unexcused Absence. He stated that attendance records of this unit show he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on PERIOD 1-2 5-6-August 2017 (periods and dates). Unless the absences are excused, he will have accrued 4 unexcused absences within a 1-year period. The 1-year period begins on the date he incurred his first unexcused absence. e. On 9 August 2017, the company commander informed the applicant of his intent to impose State non-judicial punishment against him for failing to report to his proper place of duty on or about 5-6 August 201, in violation of Mississippi Code of Military Justice, Section 33-13-471. The AGO Form 202 (State NJP) is incomplete and/or is missing entries. He was instructed to reply within 3 calendar days of receipt of the notice. (1) The applicant acknowledged receipt of the notification on 9 September 2017 and indicated he desired to make an oral presentation before the commander. He attached his written statement in which stated he was unable to attend due to vehicle registration issues and that he informed his supervisor who told him he would inform the first sergeant. He kept his chain of command informed. The reason for his absence was his expired vehicle registration at the time; he was unable to commute from his home of record in Tennessee to Camp Shelby, MS, his place of duty to attend inactive duty training (IDT). (2) There are no other documents attached to this form. There is also no punishment indicated on this form. At the time of this action, the commanding officer's decision, and punishment, was documented on an AGO Form 202-A. The file provided does not include the AGO Form 202-A, and MSARNG personnel were unable to locate any documents relating to this action, punishment imposed, or the rank of the individual imposing punishment. [Mississippi Code Annotated section 33-13-31 provides for the Commander's authority to impose nonjudicial punishment. The severity of punishment available depends on the rank of the commander imposing punishment. Regarding rank reductions, company grade officers in command may reduce a Servicemember to the next inferior pay grade, if the grade from which demoted is within the promotion authority of that commander. See Miss. Code Ann. § 33-13-31(2)(b)(iv). Field grade officers in command may reduce to the lowest or any intermediate pay grade; however, Servicemembers in a pay grade above E4 may not be reduced more than two (2) pay grades. See Miss. Code Ann. 33- 13-31(2)(b)(viii)(4)]. f. On 25 August 2017, MSARNG published Orders 237-811 administratively reducing the applicant in grade to specialist (SPC)/E-4 effective 6 August 2017. g. He was promoted back to SGT/E-5 on 3 April 2020. Additionally, on 18 July 2020, he executed a 6-year extension of his enlistment in the ARNG. h. He served on active duty from 216 September 2020 to 15 August 2021 in support of COVID-19. 4. On 8 September 2023, the National Guard Bureau (NGB) provided an advisory opinion in the processing of this case. An NGB official reiterated the applicant’s request for $50,000 of SLRP payments awarded in connection with his initial enlistment contract. Soldier is also seeking back pay and restoration of his time in grade (TIG) on the grounds of an improper reduction due an absence without leave (AWOL) that should not have been deemed as such. The NGB recommended approval of the applicant’s request. The NGB official stated: a. Soldier contests his reduction as a result of an AWOL, which he claims was actually not one because he was excused from the drill period in question. In fact, he reports that in reason of his expired vehicle registration at the time, he was unable to commute from his home of record in Tennessee to Camp Shelby, MS, his place of duty to attend inactive duty training (IDT). Soldier contends that he informed his first line leader at the time about his situation prior to training and was excused for drill. As such, he believes the AWOL charge is inappropriate and the demotion should therefore be reversed. Additionally, he requests pay adjustment as well as the restoration of his TIG. In the same vein, Soldier also requests overdue SLRP payments previously suspended in reason of the AWOL charge. He notes that he followed all his leadership instructions and guidelines to obtain his SLRP payments; nevertheless, his loans were not paid off. b. On 20 July 2012, Soldier enlisted in the Mississippi Army National Guard (MSARNG) as a 91H, Track Vehicle Repairer, for an 8-year service obligation. In conjunction with his enlistment, he signed concurrently a non-prior service (NPS) bonus addendum in the amount of $5,000 and an SLRP addendum for a total amount of repayment of qualifying loan not exceeding $50,000. At the time of contract, Soldier had 4 disbursed loans existing in the amount of $ 51,689.00. Soldier’s SLRP contract start date was 20 July 2012 with an obligation end date of 19 July 2018. A review of Soldier’s profile in the Guard Incentive Management System (GIMS) reflects several violations that resulted in his SLRP payments delay. (1) At first, was Soldier’s unit identification code (UIC) changed consecutively from TNBD0 to TNBD1, and QDAAA, respectively due to his unit reorganization (2 September 2015) and his promotion to E5 (8 October 2015). (2) Subsequent to this was Soldier’s suspension of favorable personnel actions (FLAG) due to Army Physical Fitness Test (APFT) failure that was initiated on 15 October 2016 and removed on 3 March 2017. (3) Following this, another FLAG action was initiated on 5 August 2017 and removed on 15 July 2018 in reason of Soldier’s unexcused absence for the period of 5 – 6 August 2017. These violations among others, contributed to Soldier’s SLRP payments for Fiscal Year (FY) 13 – 18 being placed on hold. Additionally, due to data migration from the Installation Management Application Resource Center (IMARC) to GIMS (23 August 2012), there is no available data history in GIMS prior to 2015. Currently, Soldier’s SLRP contract reflects an active status though there is no indication of any disbursed amount under this contract. c. Pursuant to 10 USC § 16301, Para (a)(2) The Secretary of Defense may repay loans described in paragraph (1) in the case of any person for service performed as a member of the Selected Reserve of the Ready Reserve of an armed force in a reserve component and in an officer program or military specialty specified by the Secretary of Defense. The Secretary may repay such a loan only if the person to whom the loan was made performed such service after the loan was made. Furthermore, Army Regulation (AR) 621-201, Para 6-5a. describes common procedures for receipt of the SLRP incentive. (1) Once approved for the program, Soldiers will be notified 90 days prior to their anniversary date of contracting for SLRP and will initiate DD Form 2475 loan repayment application within that 90-day window. (2) Submission of application will be within 90 days prior to and up to 365 days after the anniversary date, if seeking to pay principal and interest for eligible loans. (3) A DD Form 2475 received more than 365 days after the SLRP anniversary date will allow payment of principal only for loans originally eligible on that date. (4) Payments may be claimed for up to 6 years in accordance with (IAW) the Barring Act, 31 USC 3702. Claims beyond 6 years will be processed through the Army Board for Correction of Military Records (ABCMR). d. Soldier successfully completed his military obligation under which he was granted the SLRP incentive. He has since extended his contract and has a current end term of service (ETS) of 19 July 2026. Though his SLRP contract is currently back to an active status in GIMS, no payment can be made at this time IAW the Baring Act provisions. Therefore, an ABCMR approval is required to process these closed year payments. e. As far as Soldier’s nonjudicial punishment (NJP) is concerned, AGO Form 202 indicates that he was sanctioned for violation of Section 33-13-471 of the Mississippi Code of Military Justice (MCMJ). In fact, he was punished under Article 5 of the said Code due to allegedly failing to report to Camp Shelby, his place of duty, on or about 5 –6 August 2017. According to the notification of intent to impose NJP (dated 9 August 2017), Soldier must reply within 3 calendar days of receipt of the notice. Soldier’s endorsement to the notice also appears to be dated 9 September 2017. In his response, Soldier requested to make an oral presentation before the imposing Commander as well as attached his written presentation. Soldier claims that he did not receive timely notice of the mailed charge due to his home of record change. Instead, he claims he received the said notice at drill (9 September 2017). It is possible, though uncertain, that Soldier was not afforded a proper due process. Yet, it is noted that he did not appeal the decision then. He was reduced to specialist (SPC/E4) effective 6 August 2017. f. To further inquire about this matter, this office contacted the MSARNG. On the issue of SLRP incentive, the State Incentives and Education Office indicated that Soldier was never paid his incentive from his contract in 2012. It further opined the SLRP payments were never processed due to lack of staff in their office at the time. While noting that Soldier is rightfully due his incentive, the State recommended that he submits an ABCMR application due to payments being over six years old. On the other hand, regarding the NJP allegation, the Office of the Staff Judge Advocate (OSJA) indicated that it was unable to locate any records pertaining to the MCMJ action. It also noted that a reduction from E-5 to E-4 is not within the authority of the company grade commander who signed page one of the AGO Form 202. Instead, the commander imposing such punishment must be in the grade of Major and above. Meanwhile, the OSJA is unable to confirm the grade of the commander who imposed the reduction due to the lack of supporting documents. Therefore, it determined that there are no grounds to object the Soldier’s request. g. The MCMJ action carried out raises concerns of impropriety and lack of due process. In the absence of conclusive evidence suggesting that Soldier was appropriately reduced, this office is unable to challenge Soldier’s request. Thus, this office recommends that Soldier be afforded the benefit of the doubt. Therefore, it supports Soldier’s request for the restoration of his TIG and backpay resulting from his demotion along with the fulfillment of his SLRP payments. h. This opinion was coordinated with the MSARNG, the ARNG Incentives Branch, and the ARNG Office of the General Counsel. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to provide a rebuttal and/or additional documents. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and National Guard Bureau-Special Actions Branch advisory opinion, the Board concurred with the advising official finding the applicant was eligible for the SLRP program but was never paid his incentive from his 2012 contract. Evidence in the record show the office of the staff judge advocate office is unable to confirm the grade of the commander who imposed the reduction due to the lack of supporting documents. The Board determined there is sufficient evidence to support the applicant was reduced in rank erroneously and correction to his records have merit. 2. The Board noted, the applicant is warranted the benefit of the doubt based on the preponderance of evidence. Therefore, the applicant is entitled to payment of his $50,000 Student Loan Repayment Program (SLRP) awarded in connection with his initial enlistment contract in the Army National Guard (ARNG) in 2012 and that back pay and restoration of his time in grade (TIG) on the grounds of an improper reduction due an absence without leave (AWOL) that could not be substantiated. Based on the evidence and opine, the Board granted relief. 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 records of the individual concerned be corrected to the applicant is entitled to payment of the $50,000 of Student Loan Repayment Program (SLRP) awarded in connection with his initial enlistment contract in the Army National Guard (ARNG) from 2012 and back pay and restoration of his time in grade (TIG) on the grounds of an improper reduction due an absence without leave (AWOL) . 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, U.S. 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 ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, § 16301, Paragraph (a)(2), states the Secretary of Defense may repay loans described in paragraph (1) in the case of any person for service performed as a member of the Selected Reserve of the Ready Reserve of an armed force in a reserve component and in an officer program or military specialty specified by the Secretary of Defense. The Secretary may repay such a loan only if the person to whom the loan was made performed such service after the loan was made. 3. Army Regulation 621-201, Army Educational Incentives and Entitlement, establishes a reference for educational incentives and entitlements authorized by public law. It pro- vides Regular Army, Army National Guard, and Army Reserve-unique policies, responsibilities, and procedures governing these educational benefits for Soldiers and former Soldiers of the Active and Reserve Components. Soldier henceforth, unless otherwise specified, refers to enlisted and officers. Paragraph 6-5a states each Army component follows a different procedure for processing SLRP payments. Common procedures across all components are as follows: a. Once approved for the program, Soldiers will be notified 90 days prior to their anniversary date of contracting for SLRP and will initiate DD Form 2475 loan repayment application within that 90 day window. b. Submission of application will be within 90 days prior to and up to 365 days after the anniversary date, if seeking to pay principal and interest for eligible loans. c. A DD Form 2475 received more than 365 days after the SLRP anniversary date will allow payment of principal only for loans originally eligible on that date. d. Payments may be claimed for up to 6 years in accordance with the Barring Act, 31 USC 3702. Claims beyond 6 years will be processed through the Army Board for Correction of Military Records (ABCMR). e. Multiple year payments are eligible to be used on the current year DD Form 2475s, provided that Soldiers’ loans are not in default at time of payment. f. Payment may not be made on a loan that is in default. Payment may be resumed when the loan returns to good standing and may be made for the time the loan was in default. 4. Mississippi Code Annotated section 33-13-31 provides for the Commander's authority to impose nonjudicial punishment. The severity of punishment available depends on the rank of the commander imposing punishment. Regarding rank reductions, company grade officers in command may reduce a Servicemember to the next inferior pay grade, if the grade from which demoted is within the promotion authority of that commander. See Miss. Code Ann. § 33-13-31(2)(b)(iv). Field grade officers in command may reduce to the lowest or any intermediate pay grade; however, Servicemembers in a pay grade above E4 may not be reduced more than two (2) pay grades. See Miss. Code Ann. 33- 13-31(2)(b)(viii)(4)]. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000570 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1