IN THE CASE OF:	  

		BOARD DATE:  7 February 2012

		DOCKET NUMBER:  AR20110009989 


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 the Army repay a student loan under the Student Loan Repayment Program (SLRP).

2.  The applicant states when he reenlisted in the Army National Guard in October 2003, the SLRP was the one and only incentive he reenlisted for.  He contends when he reenlisted he was only asked to provide his promissory notes, which he did.  He indicates he was reassured by the "Full Time Staff (FTS)" that the SLRP issue was being "taken care of" and that he sent his promissory notes three times to the FTS.  Subsequently, he discovered the appropriate SLRP paperwork was never completed.

3.  The applicant provides a memorandum, dated 12 May 2008, and a sworn statement, dated 23 April 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 13 November 1997 for a period of 8 years.  He attained the rank/grade of sergeant (SGT)/E-5.

2.  His record contains a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 12 October 2003, which shows in item 8 (Provisions and Computation of this Extension) he extended for a period of 6 years effective 
4 November 2003.  This form is silent in regards to his enrollment in the SLRP.


3.  His records contain the following orders issued by the State of Minnesota, Department of Military Affairs, Office of the Adjutant General, Veteran Service Building, Saint Paul, MN which show in:

a.  Orders Number 337-801, dated 3 December 2003, he was discharged
from the MNARNG and assigned to the USAR Control Group effective 
12 November 2003; 

b.  Orders Number 337-807, dated 3 December 2003, revoked Orders
Number 337-801, pertaining t his discharge from the MNARNG; 

c.  Orders Number 258-051, dated 14 September 2004, he was ordered to
active duty in support of Operation Iraqi Freedom, effective 11 October 2004; and

d. Orders Number 336-0051, dated 2 December 2005, he was released from
active duty, effective 27 December 2005.

4.  He submitted a sworn statement, dated 23 April 2008, from the readiness noncommissioned officer for Battery C, 1st Battalion, 151st Field Artillery Regiment in Morris, Minnesota.  The writer states:

	a.  he observed the applicant signing his DA Form 4836 (Oath of Enlistment)
on 12 October 2003; but did not sign an addendum for a bonus or SLRP on that date because he was waiting for the promissory notes.

   b.  he did not have the applicant's promissory note when he reenlisted, but he was aware the applicant wanted to reenlist for the SLRP.  As a result, the oath of reenlistment was not scanned into the computer until 25 November 2003 because he was waiting on the applicant's promissory note;

	d.  as a result of the applicant’s deployment, he received the promissory note, from the applicant’s mother in late 2004, there was no SLRP addendum to go with the applicant's promissory note, and he made a mistake which resulted in the applicant not being enrolled in the SLRP.

5.  He submitted the following memoranda dated:

	a.  12 May 2008, from the Commanding Officer, Headquarters, 1st Battalion, 151st Field Artillery, National Guard Training and Community Center, Montevideo, MN that states there is no proof that the applicant was negligent in his responsibilities and that he has done a good job in his follow-up with his FTS.  He strongly recommended the applicant move forward with filing a case with the ABCMR.
	b.  5 June 2008, in which he requested the ABCMR review the documents involving the issue of the SLRP.  He was told he was entitled to the SLRP if he reenlisted in the ARNG in October 2003.

6.  He submitted a DD Form 149, dated 10 June 2008, that indicated he applied to the ABCMR for correction of his records to show he was entitled to be enrolled in the SLRP based on his October 2003 reenlistment.

7.  He submitted a memorandum, dated 25 November 2008, from the ABCMR, that stated his request was administratively closed without action because his official military personnel record did not contain his DA Form 4836 or any documents relating to the SLRP.

8.  In the processing of the case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau, Arlington, VA, dated
21 December 2011, that recommended approval of the applicant's request to be enrolled in the SLRP.  The advisory official stated:

	a.  The ABCMR previously took no action on his request based on the absence of documentation to support his eligibility for SLRP incentives.  There is 
no record of an SLRP addendum or control number filed by the MNARNG.  However he was entitled to the SLRP in accordance with Title 10, U.S. Code, chapter 1606.  Army Regulation 135-7 (Army National Guard and Army Reserve Incentive Programs), paragraph 5-1.3(e) states a Soldier must execute a DA Form 5261-4-R (SLRP Addendum), but it was never completed; therefore, he was unable to receive this benefit.
	b.  The advisory official requested the Board review the facts and consider the applicant’s eligibility to receive his SLRP incentive in accordance with Army Regulation 135-7, section 5-1 that states “to be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement).  A person must serve in the Selected Reserve for the full term of the contractual agreement in the same component and same military occupational specialty unless excused for the convenience of the government.  He met his obligation and completed his contract; however, he was unable to collect the SLRP incentives due to his unit not processing and administrating his DA Form 5261-4-R.

	c.  The advisory official further states the applicant reenlisted in the MNARNG on 12 October 2003 for a 6-year obligation.  According to the sworn statements provided by the MNARNG, he was never provided that SLRP addendum to his reenlistment contract, but was given a verbal commitment that he would receive the $10,000.00 SLRP for reenlisting for 6 years as long as he provided the promissory notes for the loans.  He provided the necessary loan documents to the State in 2005.  The memorandum statements provided by the MNARNG clearly show the unit’s FTS did not properly administer his reenlistment paperwork.  This lack of due diligence was evident on 12 November 2003 when he was erroneously discharged because reenlistment paperwork was not processed by the MNARNG in a timely manner.

	d.  The advisory official further states the applicant made several attempts to follow up with his unit’s FTS and he was told that his loans would be repaid after the first year of the extension of his reenlistment contract.  He deployed to Iraq from 2004 to 2005 and he was told by the MNARNG the paperwork would be processed for his SLRP.  It was not until a post-deployment assessment in 2006 that it was discovered his SLRP addendum to his reenlistment contract was never completed and processed.  Because this form was never filled out he was not able to receive the loan repayment incentives.

	e.  The advisory official concludes by recommending the SLRP addendum
be processed by the MNARNG and 15 percent (%) of the original amount of his 
loans, plus interest, be paid annually for a period of 6 years, not to exceed $10,000.00 in accordance with the SLRP guidance on the DA Form 5261-4-R, section V (Entitlement), paragraph 3a.

	f.  The State concurred.

9.  On 22 December 2011, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  Army Regulation 135-7 (Incentive Programs), restricts the SLRP to those Reservists who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOSs and units, which is updated every 6 months.  This educational incentive may only be elected at the time of enlistment or reenlistment.  This incentive pays a limited 
sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility by being separated from his or her unit.

11.  The SLRP provides for the repayment by the Government of a designated portion of any outstanding student loan(s) secured after 1 October 1975.  The loan amount to be repaid is 15% of the original balance of the loan plus accrued interest not paid by the Department of Education, or $500.00 plus the accrued interest not paid by the Department of the Education, whichever is greater.  Payments will be made for each year of satisfactory service in the Selected Reserve.  To be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily, must serve in a Reserve unit for a full term of the contractual agreement, and must further obligate himself or herself to continue to serve in the same component and the same MOS unless excused for the convenience of the Government.  Entitlement to the SLRP will stop if the Soldier is separated from the Selected Reserve.  Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan which is at least one year old may then be paid in accordance with the terms of this educational enlistment incentive.

DISCUSSION AND CONCLUSIONS:
1.  The applicant's request that the MNARNG honor its agreement authorizing him to receive the $10,000.00 SLRP benefits verbally promised when he reenlisted has been carefully considered and found to lack merit.

2.  Although evidence of record confirms the applicant entered into a reenlistment contract in good faith on 23 October 2003, his DA form 4836 is silent on the authorization for SLRP benefits.

3.  Notwithstanding the favorable advisory opinion or the State’s concurrence with the advisory opinion, the applicant’s failure to submit his promissory notes until a year after he signed the October 2003 Oath of Extension of Enlistment or Reenlistment constituted a lack due diligence.  He states he was unable to submit his promissory notes in a timely manner due to his deployment in support of Operation Iraqi Freedom; however, he did not deploy until September 2004.  While the FTS may have verbally indicated the applicant would be enrolled in the SLRP, without the necessary promissory notes he would have been unable to submit the addendum for the SLRP.  

4.  The Comptroller General of the United States has ruled in similar cases that, although a service member may have been misinformed about his or her entitlements, the U.S. Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

5.  In view of the foregoing, there is no basis for granting the applicant's request to correct his records to show he is eligible for SLRP.




BOARD VOTE:

________  ________  ________  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.



      _______ _  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)                                         AR20110009989



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