IN THE CASE OF:	  

		BOARD DATE:  12 September 2013

		DOCKET NUMBER:  AR20130001719 


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 the DD Form 139 (Pay Adjustment Authorization) to allow him to retain the payments he received through the Student Loan Repayment Program (SLRP) that was disbursed to his college lender in 2009.

2.  The applicant states he was led to believe a 3/5 enlistment option (3 years in the Selected Reserve and 5 years in the Individual Ready Reserve (IRR)) in the California Army National Guard (CAARNG) was eligible for the SLRP funds by his recruiter and the state incentives manager.

3.  The applicant provides:

* DD Form 139
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 124-1013 (discharge from the ARNG)
* Orders 281-1058 (military occupational specialty (MOS))
* Request for an exception to policy
* CAARNG Notification of termination/recoupment of incentive memorandum
* DD Form 4 (Enlistment/Reenlistment Document)
* DD Form 1966 series (Record of Military Processing - Armed Forces of the United States)
* Annex L (SLRP Addendum - ARNG) to DD Form 4
* Incentives Task Force Loan Repayment Audit Form
* Loan verification form from his lender
* Multiple DD Forms 2475 (DOD Educational LRP Annual Application)
* Page 2 of a 2-page DD Form 1058-R (Application for Active Duty for Training (ADT))
* Military Pay Voucher

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CAARNG on 13 April 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 Troop C, 1st Squadron, 8th Cavalry
* 3/5 Enlistment Bonus
* ARNG Standard Training Option

2.  In connection with this enlistment, he completed a Guard Annex (Enlistment/Reenlistment Agreement - ARNG - Service Requirements and Methods of Fulfillment).  He indicated the enlistment option that he selected provides that 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 agreed to serve with C Troop, 1st Squadron, 8th Cavalry
* he would undergo training for MOS 25C (Radio Operator - Maintainer)
* there are three addenda attached to his enlistment agreement: Enlistment Bonus Form, Montgomery GI Bill, and SLRP Form

3.  Also In connection with this enlistment, he completed Annex L to DD Form 4.  He indicated he understood:

* he enlisted for a term of 3 years in an ARNG unit and 5 years in the IRR; he enlisted in MOS 25C that is authorized the SLRP and he would remain in the contracted MOS for the first 3 years of his contract
* he has 2 loans in the amount of $18,000 and repayment of loans would not exceed $20,000
* he would be suspended from the SLRP eligibility if he were flagged (suspension of favorable personnel actions) for an adverse action (does not include Army Physical Fitness Test failure)

4.  He entered ADT on 2 July 2008 and he completed the required training for MOS 27D (Paralegal Specialist).  He was released from ADT on 13 December 2008 to the control of his state.  

5.  His records do not reveal he completed training for MOS 25C or that he was assigned to C Troop, 1st Squadron, 10th Cavalry. 

6.  On 6 December 2009, the commander of Headquarters and Headquarters Company (HHC), 79th Brigade Special Troops Battalion, 79th Infantry Brigade Combat Team, initiated a DA Form 268 (Report to Suspend Favorable Personnel Actions) against the applicant for adverse action.  

7.  On 11 April 2010, the commander of HHC, 79th Brigade Special Troops Battalion, 79th Infantry Brigade Combat Team, initiated a DA Form 268 removing the flag that was imposed on 6 December 2009, after disciplinary action had been taken. 

8.  On 4 May 2010, the CAARNG published Orders 124-1013 ordering his discharge from the ARNG and assignment to the U.S. Army Reserve Control Group (Annual Training), effective 12 April 2010. 

9.  His NGB Form 22 shows he was honorably separated from the ARNG on 12 April 2010 by reason of completion of his active Guard commitment.  He completed 3 years of ARNG service. 

10.  On 12 April 2012, by memorandum, the CAARNG notified the applicant that there was a discrepancy in his SLRP incentive payment.  A payment had been made in the amount of $6,599.46 that was in violation of DOD Instruction (DODI) 1205-21 (Reserve Component Incentive Program Procedures), section 6.8 and section E8.1.2.1.

11.  On 22 June 2012, an official at the Incentives Task Force initiated a 
DD Form 139 recouping the amount of $6,599.46.

12.  On 17 January 2013, he authored a memorandum requesting a waiver of recoupment of his 2009 SLRP incentive.  He stated the amount of $6,599.46 was sent directly to his college lender, Citibank Student Loans.  He was told by the Incentives Task Force that he did not qualify for SLRP funds because he signed up for a 3/5 contract.  The Task Force officials told him the NGB had a requirement that in order to receive the SLRP, he had to sign up for 6/2 or 8x0.  However, the contract he signed makes no mention of an 8x0 or 6x2 option.  The contract he signed mentions in two separate entries that a 6 to 8 year commitment is required.  A 3x5 is an 8-year commitment.  He did not know at the time he signed the contract that there was a 6/2 or 8/0 requirement.  The contract did not state it.  Neither his recruiter nor his incentives manager stated it.  He completed his 3-year commitment and he received an honorable discharge. 

13.  During the processing of this case, on 17 April 2013, an advisory opinion was obtained from the NGB.  The advisory official recommended disapproval of the applicant's request.  He stated:

	a.  According to the applicant, he was told that he was supposed to enlist for a 6/2 or 8/0 contract, not a 3/5 contract, in order to be eligible for the incentive.  The CAARNG has identified the applicant as one of many Soldiers whose incentives were mishandled by the incentives manager at the time.  According to the CAARNG, the Federal Court system currently has proceedings addressing the gross misconduct of the individual who made these processing errors.  

	b.  In light of the mishandling of incentives in the CAARNG, it would have been in the best interest of the Soldier and the ARNG to provide administrative relief to him.  However, on 6 December 2009, a flag was initiated against the applicant for adverse action.  The flag was removed on 11 April 2010, the day prior to his discharge.  Even if the applicant had enlisted with a 6/2 or 8/0 contract, he was in breach of his SLRP addendum which stated he understood he would be suspended from the SLRP eligibility if he were flagged for an adverse action.  As a result of this adverse action, he should not receive administrative relief and the contested amount should be recouped.  The CAARNG has not provided any additional information regarding this case.  

14.  On 23 April 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.

15.  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 3/5 enlistment contract in the CAARNG on 13 April 2007.  In connection with this contract, he signed an SLRP addendum that promised him payment under the SLRP.  He received a payment of $6,599.46 toward his student loans.  In 2012, as a result of an audit conducted by the CAARNG, he was informed that his benefits would be terminated and recouped as a result of violation of DODI guidance.  Accordingly, the State initiated action to recoup the amount that had been paid.

2.  The applicant enlisted in good faith and relied on the advice of recruiting officials.  However, he was flagged for adverse action on 6 December 2009 and his flag was removed on 11 April 2010 after disciplinary action had been taken.  He was in breach of his SLRP addendum which stated he understood he would be suspended from the SLRP eligibility if he were flagged for an adverse action.  Further, the evidence of record shows he did not serve in the MOS that was authorized the SLRP.  There is neither an error nor an injustice in his case. 

3.  In view of the foregoing, the applicant is not entitled to the requested relief.  

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 that 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)                                         AR20130001719





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ABCMR Record of Proceedings (cont)                                         AR20130001719



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