BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130001575 


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 enlistment contract in the California Army National Guard (CAARNG) from a 3x5 (3 years in the Selected Reserve and 5 years in the Individual Ready Reserve (IRR)) to a 6x2 contract in order to retain his Student Loan Repayment Program (SLRP) benefits.

2.  The applicant states he was first made aware that he was not eligible for the SLRP because he enlisted under a 3x5 option.  National Guard Bureau (NGB) Policy 07-04, subject:  Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007 (FY07), permitted non-prior service Soldiers to contract for 3x5. However, NGB Policy Number 07-04 was in violation of Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Program Procedures), paragraph E9.1.2.1 that requires a 6x2 enlistment.  He relied on his recruiter who relied on NGB policy.

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* NGB Form 600-7-5-R-E (Annex L to DD Form 4 (SLRP Addendum - ARNG))
* Extract of DODI 1205.21

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the CAARNG on 11 January 2007 for a period of 8 years.  His DD Form 1966/3 (Record of Military Processing) shows in item 32 (Specific Option/Program Enlisted For) the entry:

* Assignment to the 223rd Military Intelligence Battalion
* 3x5 Enlistment Bonus
* SLRP
* ARNG Standard Training Option

3.  In connection with this enlistment, he completed an NGB Form 600-7-5-R-E.  He indicated the enlistment option he selected provides he would be a member of an ARNG unit for a period of 3 years and a member of the IRR or Inactive National Guard for the balance of his 8-year obligation unless he elected to remain with his ARNG unit or he is discharged from his enlistment agreement.  He also indicated he understood:

* he would undergo training for military occupational specialty (MOS)
27D (Paralegal Specialist) that is authorized for SLRP and that he would remain in the contracted MOS for the first 3 years of his contract
* he has 2 loans in the amount of $20,000.00 and that repayment of loans would not exceed $20,000.00
* he would be suspended from the SLRP eligibility if he accepted a commission as an officer or an appointment as a warrant officer

4.  He entered active duty for training (ADT) on 14 August 2007 and he completed the required training for MOS 27D.  He was released from ADT on 24 May 2008 to the control of his state.  

5.  On 22 April 2009, he was honorably discharged from the ARNG to accept appointment as a commissioned officer.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 2 years, 3 months, and 12 days of ARNG service.

6.  He was appointed as a Reserve commissioned officer of the CAARNG and he executed an oath of office on 23 April 2009.  He was promoted to first lieutenant on 23 October 2010.

7.  There is no indication he petitioned the CAARNG or the NGB regarding his entitlement to the SLRP.

8.  During the processing of this case, on 29 January 2013, an advisory opinion was obtained from the NGB.  The advisory official recommended approval of the applicant's request.  He stated:

	a.  According to the ARNG Education, Incentives and Employment Division [Applicant] was offered a $20,000.00 SLRP incentive based on his initial enlistment contract, dated 11 January 2007.  However, ARNG SRIP Guidance for FY 2007, Policy Number 07-04 was written in violation of DODI 1205.21, paragraph E8.1.2.1., that required a 6x2 enlistment commitment.  SRIP Policy Number 07-04, paragraph 1(2) authorized an enlistment contract of 3x5.  For a non-prior enlistment, DODI 1205.21, E8.1.2, requires a 6-year contract; therefore, SRIP Policy Number7-04 was in violation of DODI 1205.21.

	b.  In September 2012, Enlisted Accessions Division at the Pentagon approved an Exception to Policy (ETP) to grant exceptions allowing the SLRP to be retained under the 3x5 non-prior service enlistment option.  However, an ETP has not been submitted by the CAARNG on the applicant's behalf.

	c.  The applicant accepted a 3x5 contract in accordance with Policy Number 07-04 in good faith not knowing it was in violation of the DODI.  He received an initial payment of $9,000.00 with $11,000.00 remaining.  Withholding payment of this incentive would be contrary to equity and good conscience and against the best interest of the Army and the Soldier.  Even though an ETP has been approved, his military records still require a correction to indicate a 6x2 enlistment contract rather than a 3x5 contract.

9.  On 30 January 2013, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  DODI 1205.21 prescribes policy, assigns responsibilities, and prescribes procedures for management of the Reserve Component incentive programs.  It states in Section 6.2 (Written Agreements), 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.  That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant signed a 3x5 enlistment contract in the CAARNG on 11 January 2007.  In connection with this contract, he signed an SLRP addendum that promised him payment under the SLRP.  He enlisted in good faith not knowing that he was in violation of DODI 1205.21.  According to his State, he received a payment of $9,000.00 with $11,000.00 remaining.

2.  Withholding payment of this incentive would be contrary to equity and good conscience and against the best interests of the Army.  As such, his records should be corrected to show he executed a 6x2 enlistment contract vice the initial 3x5 enlistment contract. 

BOARD VOTE:

____X_  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  showing he enlisted under a 6x2 contract (6 years in the Selected Reserve and 2 years in the Individual Ready Reserve), and

	b.  paying from Army National Guard funds any SLRP payments due as a result of this correction.



      __________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)                                         AR20130001575



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ABCMR Record of Proceedings (cont)                                         AR20130001575



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