BOARD DATE: 25 March 2014 DOCKET NUMBER: AR20130014171 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, an exception to policy to retain eligibility for the Student Loan Repayment Program (SLRP) incentive in the California Army National Guard (CAARNG). 2. The applicant states: a. She enlisted in the CAARNG on 13 March 2001 for the SLRP and bonus incentives. Years later her records were audited and a determination was made to recoup the SLRP incentive that was paid over the years. b. According to the re-audit letter, dated 30 October 2012, and the National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 - Enlistment Bonus Addendum - ARNG), her Armed Forces Qualification Test (AFQT) score at the time of her enlistment was IIIB. According to Army Regulation 135-7 (Army National Guard and Army Reserve – Incentives Program), paragraphs 5-1 and 5-3, non-prior service applicants must be classified in mental category I, II, or IIIA in order to qualify. Her enlistment document clearly noted that her AFQT score did not meet the standards to qualify for the SLRP at the time. The recruiter should not have continued to offer this option. This was a dishonest act by the recruiter and the personnel at the Military Entrance Processing Station (MEPS) who screen the process. It is totally unjust to new recruits who do not know Army regulations and do not question the process. She placed her trust in the personnel she thought were doing their jobs with honesty and integrity. c. The responsibility lies with the recruiter and those who screen and review the applications for new recruits with non-prior service who do not meet the regulatory guidance. The lack of education, training, guidance, and integrity from the recruiters and MEPS is in question and she should not bear the responsibility for their failures. Additionally, in every annual loan repayment, there is an application process that gets validated by the bonus department and the U.S. Property and Fiscal Office. The lack of proper screening of this process prior to payment is the responsibility of personnel who hold such positions. As a Soldier, she provided the application for repayment with substantiating records and validity of her loans at the time. After she submitted her documents, the loan was repaid without any questions. She should not be held responsible for the lack of leadership, training, and education of others. 3. The applicant provides: * DD Form 4 (Enlistment/Reenlistment Document) * NGB Form 600-7-1-R-E * NGB Form 600-7-3-R-E (Annex R to DD Form 4 – Reenlistment/Extension Bonus Addendum – ARNG) * NGB Form 600-7-5-R-E (Annex S to DD Form 4 – SLRP Addendum – ARNG) * Enlistment Bonus Control Number Request * annual loan repayment memoranda and loan information * audit memorandum of her Non-Prior Service Bonus (NPSB) Reenlistment/Extension Bonus and SLRP incentive * memorandum for CAARNG Incentives Task Force, dated 18 April 2012, subject: Supporting Documents Regarding Non-Prior Service Bonus/ Reenlistment/Extension Bonus and Student Loan Repayment, with supporting documents * memorandum for record, dated 30 October 2012, subject: Re-audit of SLRP for (Applicant) * email CONSIDERATION OF EVIDENCE: 1. The applicant's records show she enlisted in the CAARNG on 13 March 2001. In connection with this enlistment, she signed several addenda/annexes as follows: a. NGB Form 21 (Annex A to DD Form 4 – Enlistment/Reenlistment Agreement – ARNG), dated 13 March 2001, shows she enlisted in the ARNG as a non-prior service member for 6 years. She understood she would be trained in military occupational specialty (MOS) 75H (Personnel Services Specialist) and assigned to the 79th Personnel Service Detachment. b. Annex E, dated 13 March 2001, shows she had an AFQT score of 33 and she enlisted for assignment in the 79th Personnel Service Detachment to serve in MOS 75H for 6 years. She would be receiving a total bonus of $8,000.00, half of which would be paid upon completion of MOS training and the other half would be paid on the fourth anniversary. She and a service representative signed this addendum. c. Annex S, dated 13 March 2001, shows her AFQT score of 33 or above. She was enlisting in a valid position vacancy and in a critical MOS that the Department of the Army had authorized for SLRP. She had two loans in the amount of $9,986.07. 3. She entered active duty for training on 20 November 2001 and completed the required training for MOS 75H. She was released from active duty on 19 April 2002 to the control of her ARNG unit. 4. She was ordered to Full Time National Guard Duty on 1 January 2003. She served in a variety of positions with the 40th Personnel Services Company and she attained the rank of sergeant. 5. On 12 December 2006, she executed a 6-year extension in the ARNG. In connection with this extension, she also executed Annex R that shows she would receive a total bonus of $15,000.00 less taxes for a 6-year reenlistment/ extension to be paid lump sum. She acknowledged that her incentive would be terminated without recoupment if she accepted a commission as an officer after serving more than 1 year of the enlisted incentive contract term. She and a service representative signed this addendum. 6. She was honorably released from active duty on 13 May 2009 to accept a commission as a Reserve officer of the Army. She was appointed as a Reserve officer of the Army and the CAARNG and she executed the oaths of office on 14 May 2009. She completed the Army Medical Department Basic Officer Leader Course from August to November 2010. She was promoted to captain. 7. On 19 March 2012, the CAARNG Headquarters Commander notified her that an audit of her bonus and SLRP incentive revealed a discrepancy. The CAARNG had taken all measures prior to this notification but could not resolve the discrepancy without her assistance. Her SLRP incentive would be recouped in the amount of $10,500.00 because the loan repayment was paid without supporting loan documentation and payment was made in violation of Federal law. Supporting documentation to substantiate her incentive payments was absent from her personnel file. She was advised that she might be eligible for an exception to policy. 8. On 18 April 2012, she responded to the audit letter and provided substantiating documents in support of her NPSB, reenlistment/extension bonus, and SLRP. 9. On 30 October 2012 as a result of the re-audit of her SLRP incentive, the CAARNG Incentives Task Force notified her that she had not provided sufficient documentation to change the category of her SLRP from category 3 (non-correctable). She is classified as category III due to enlisting with an AFQT score of 33. Army Regulation 135-7, chapter 5-1, states non-prior service applicants must be classified in mental category I, II, or IIIA. Her AFQT places her in mental category IIIB. She was advised that she could file an appeal to this Board in order to retain eligibility. She submitted documents that indicated she had $9,959.00 in qualifying student loans. Based on eligible loans, repayment would have been $1,493.85 annually for six payments, for a total of $8,963.10. She received $10,500.00 in payments, $1,536.90 of which was made in violation of Federal law. She was further advised that if she were granted relief to retain the SLRP incentive by the Board, her recoupment amount would be reduced to $1,536.90. 10. An advisory opinion, dated 26 September 2013, was received from NGB in the processing of this case. NGB recommended granting administrative relief because the applicant fulfilled her contractual obligation. a. The Department of Defense (DOD) modified the policy guidance on repayment of bonuses and educational benefits in a memorandum, dated 21 May 2008, subject: Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends. The DOD memorandum stated, "A member who enters into a written agreement with specified conditions of a pay or benefit, is entitled to the full amount of the pay or benefit if the member fulfills the conditions for that pay or benefit. The DOD policy memorandum recognized that, at that time, members were subject to statutory repayment authorities with varied requirements, and repayment would be aggressively pursued for any unearned portion of a pay or benefit, as appropriate. However, it was also understood there may be circumstances that support to [sic] the need to refrain from taking such action." b. The applicant was ineligible at the time she contracted for SLRP, but the incentive was offered to her anyway. Applicants must score a minimum of 50 on the AFQT in accordance with Army Regulation 135-7, paragraph 5-1.3b(2). Her score on the AFQT was 33. However, this requirement was modified to reflect 33 in the contract addendum rather than 50 in order for the applicant to qualify. The contract should be honored, as justified by the referenced memorandum because this was through no fault of the Soldier. Whether this modification to the contract was authorized or not, the government entered into the contract and paid the bonus in accordance with the terms of the contract. c. NGB recommended recoupment of $1,512.54 in overpayment by the government toward the eligible loans. The applicant contracted for repayment of $9,986.07 worth of eligible student loans. The annual entitlement is $1,497.91 based on the 15-percent payment per year. The 6 years of repayment in the amount of $1,497.91 per year totals $8,987.46. This amount is determined by Title 10, U.S. Code, section 16301(b), which authorizes 15 percent of the loan or $500.00, whichever is greater, for each year of service. This is also indicated in the contract addendum. The amount paid to her lender was $10,500.00. This exceeds her 6-year limit of $8,987.46 by $1,512.54. d. The State of California concurred with this recommendation. 11. On 10 January 2014, she responded to the advisory opinion. She stated: * the SLRP addendum clearly reflected an AFQT score of 33 and a loan amount of $9,986.07 * when this addendum was drafted, she was a civilian entering the ARNG and she placed her trust in those in positions of responsibility * the process of applying for loan payments every year is length and cumbersome * the fact that the lender received $10,500.00 instead of $9,986.07 should not shift the responsibility for the error to her * the recoupment action has caused her and her family a financial hardship * she should receive full relief DISCUSSION AND CONCLUSIONS: 1. The applicant enlisted in the CAARNG on 13 March 2001. Her AFQT score was 33. She would have had to have scored at least 50 to be eligible for the SLRP incentive. She did not. The incentive was offered to her in error. Nevertheless, she enlisted in good faith and relied on the advice of those subject matter experts who enlisted her. She should not be held responsible for errors committed by her recruiter and/or the CAARNG. Therefore, as a matter of equity, only the excess amount of her SLRP incentive should be recouped. 2. She contracted for repayment of $9,986.07 worth of eligible student loans. The annual entitlement was $1,497.91 based on the 15-percent payment per year; 6 years of repayment in the amount of $1,497.91 per year totals $8,987.46. This amount is determined by Title 10, U.S. Code, section 16301(b), which specifies 15 percent of the loan or $500.00, whichever is greater, for each year of service. This is also indicated in the contract addendum. The amount paid to her lender was $10,500.00. This exceeds her 6-year limit of $8,987.46 by $1,512.54. Therefore, her records should be corrected to show a recoupment of $1,512.54 in overpayment by the government toward the eligible loans. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __X____ ___X____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: * showing she applied to NGB for an exception to policy to retain the SLRP incentive * showing NGB timely received and approved her request for an exception to policy to retain the amount of $8,963.10 in eligible loans * paying her the recouped amount from Army National Guard funds, not to exceed the amount of $8,963.10 in eligible loans 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to retaining the SLRP incentive for the full amount of $10,500.00. ___________X______________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20130014171 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130014171 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1