IN THE CASE OF:	  

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110011615 


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 correction of his record to show he is eligible for the Student Loan Repayment Program (SLRP).  Additionally, he requests cancellation of his indebtedness in the amount of $1,717.96.

2.  He states he reenlisted in the U.S. Army Reserve (USAR) for 6 years for the SLRP on 13 July 2001.  He had been selected for the Active Guard Reserve (AGR) Program and was entering active duty on 3 November 2002.  On 1 November 2006, he was notified of his indebtedness and informed that he was not eligible for SLRP because he was a Federal civil service (General Schedule (GS)) employee.  He states he was told when he enlisted in the USAR that his employment as a GS employee only applied to future jobs.  Therefore, he requests an exception to policy based on the fact that he served 40 months of his reenlistment before being notified that he was not eligible for SLRP.  He maintains he served the entire 6-year enlistment without issue and he is no longer a GS employee.

3.  He provides the following:

* USAR Command (USARC) Form 28-R (Notice of Indebtedness), dated 1 November 2006
* DD Form 2789 (Waiver/Remission of Indebtedness Application), dated 23 January 2007, with a self-authored statement
* enlistment/reenlistment documents
* information paper, dated 14 November 2006, subject:  Waiver and Remission or Cancellation of Indebtedness
* extract of Army Regulation 135-7 (Army National Guard and Army Reserve Incentive Programs)
* e-mail
* Standard Forms 50 (Notification of Personnel Action), dated 28 January 2001, 21 January 2003, and 15 December 2006

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Navy, the applicant enlisted in the USAR for 2 years on 17 August 2000.  On 13 July 2002, he reenlisted in the USAR for 6 years.  His obligation included serving the entire period of the enlistment in a Selected Reserve unit.

2.  The DA Form 3540-R (Certificate of Acknowledgement of USAR Requirements and Methods of Fulfillment) completed with his reenlistment contract confirms a DA Form 5261-4-R (SLRP Bonus Addendum) was included with the contract.

3.  The SLRP addendum shows he was authorized a maximum of $10,000.00 in loan repayments during his military career.  It further identified his obligation as serving his entire enlistment in the Selected Reserve in military occupational specialty 71L (Administrative Specialist).  The amount to be repaid each year would not exceed 15 percent of the original balance plus the accrued interest.  He initialed section VII (Termination) indicating he understood if he accepted a permanent civilian position where membership in the Selected Reserve was a condition of employment, he would be terminated from SLRP.  He and a service representative authenticated this document with their signatures on 13 July 2002.

4.  The guidance counselor confirmed that she verified the applicant met the eligibility requirements of Army Regulation 135-7 in section IX (Certification by Service Representative) of the DA Form 5261-4-R.

5.  A Notice of Indebtedness from the USAR Pay Center, USARC, dated 1 November 2006, and e-mail notified the applicant that he was indebted to the U.S. Government for $1,717.96.  The e-mail stated a recent examination of his records indicated he was indebted for an erroneous payment against his SLRP incentive.  The agency representative said that in accordance with Army Regulation 135-7, paragraph 5-1.6d, once a Soldier accepts a military technician position, the SLRP incentive terminates.  He added that per their records, the applicant accepted the position on 28 January 2001.  He further stated the applicant received a payment of $1,717.96 for entitlement years 2003-2005.

6.  The applicant provides an information paper, dated 14 November 2006, subject:  Waiver and Remission or Cancellation of Indebtedness, that explains the difference between a waiver and remission of indebtedness.  This paper also provides guidance for submitting a request for a waiver and/or cancellation of indebtedness.

7.  His Standard Forms 50 show the effective dates and status as follows:

* 28 January 2001 – USAR Unit Administrator [military technician], appointment affidavit executed 4 January 2001
* 21 January 2003, leave without pay, USAR Unit Administrator
* 15 December 2006, separation, USAR Unit Administrator

8.  On 22 January 2007, he requested a waiver of the payment amount of $1,717.96.  In his letter, he stated he disagreed with the validity of the debt.  He said he accepted a USAR military technician position on 28 January 2001 and reenlisted on 13 July 2002.  He stated the authorized USAR representative said he was eligible for SLRP and his military technician position would not be a factor for ineligibility since he was executing a new reenlistment contract.  The applicant stated he was not accepting a permanent civilian position as a military technician after the date of the new reenlistment.  He said he relied on the USAR representative in good faith.  He provided the following timeline:

* 17 August 2000, enlisted in the USAR
* 28 January 2001, accepted a military technician position in the USAR
* 13 July 2002, reenlisted in the USAR
* 3 November 2002, entered active duty in the AGR Program
* 21 January 2003, entered a leave without pay status
* 1 November 2006, received a Notice of Indebtedness
* 15 December 2006, separated from the GS position per request from Fort McCoy

9.  U.S. Army Human Resources Command Orders R-10-206837A03, dated 10 June 2005, show the applicant's original orders to active duty in the AGR Program with a reporting date of 3 November 2002 were amended from an active duty commitment period of 3 years to 5 years, 8 months, and 10 days.

10.  In an e-mail from the Senior AGR Retention Noncommissioned Officer (NCO), dated 9 January 2007, he advised the applicant to contact the Judge Advocate General to assist him in stopping the collection action until he had an opportunity to appeal his case.  He said the applicant's previous retention NCO was wrong and the applicant did not qualify for SLRP because he was a military technician at the time he reenlisted.  He further stated the previous retention NCO promised the applicant something he wanted to induce him to reenlist.

11.  Army Regulation 135-7 provides guidance for the termination of entitlement to SLRP.  Paragraph 5.1-6d states the entitlement to SLRP will stop if the Soldier accepts a permanent civilian position where membership in the Army National Guard or USAR is a condition of employment.

12.  Army Regulation 140-315 (Employment and Utilization of USAR Military Technicians) states the military technician is a vital part of the military structure to help keep its equipment running smoothly and to support its diverse missions.  Military membership in a USAR unit is required for permanent appointment as a military technician.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the USAR for 6 years with eligibility for SLRP as an enlistment incentive.  He initialed the SLRP Addendum to his enlistment contract indicating he understood if he accepted a permanent civilian position where membership in the Selected Reserve was a condition of employment, he would be terminated from SLRP.

2.  The applicant's argument that he should be eligible for SLRP and his debt should be canceled because he served 40 months of his reenlistment before being notified that he was not eligible for SLRP was considered.

3.  However, the evidence of record shows he was employed as a military technician effective 28 January 2001, 6 months prior to his enlistment for SLRP on 13 July 2002.  Records further show he entered active duty in the AGR Program on 3 November 2002 and went on leave without pay from his military technician position on 21 January 2003.  Information from the USAR Pay Center confirms that he received a payment of $1,717.96 for entitlement years 2003-2005.  This information leads you to believe he was aware that he could not receive payment under SLRP and be assigned as a military technician.

4.  Nevertheless, the prerequisite for receiving the incentive under SLRP was based on the applicant "not" accepting a permanent civilian position where membership in the USAR was a condition of employment.  The fact that he was employed as a military technician prior to his enlistment lends credence that he was not entitled to SLRP under his contract at the time of his reenlistment in the USAR.

5.  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.

6.  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 or cancellation of his indebtedness in the amount of $1,717.96.

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)                                         AR20110011615



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ABCMR Record of Proceedings (cont)                                         AR20110011615



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