IN THE CASE OF:	  

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130002448 


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, she be allowed to retain her Student Loan Repayment Program (SLRP) eligibility and/or receive relief from recoupment of funds previously received.

2.  The applicant states she relied on the subject matter expert and believed her Associate Degree (AD) loans met the eligibility requirements for payment under the SLRP.  Based on the directions from the manager she submitted a back-dated SLRP addendum.

3.  The applicant provides copies of 11 pages of e-mails related to her SLRP, a 2007 DD Form 4 (Enlistment/Reenlistment Document), page 3 of a 2007 DD Form 1966, Annex L (SLRP Addendum), an excerpt from Army National Guard (ARNG) fiscal year 2007 (FY07) Enlistment Criteria, a California Culinary Academy diploma and Associate of Occupational Studies degree, and a 2012 General Officer Memorandum of Reprimand (GOMOR) with appeal documents, 

CONSIDERATION OF EVIDENCE:

1.  On 28 February 2007, the applicant, with prior service, enlisted in the California Army National Guard (CAARNG).

2.  A major investigation in 2009 of all bonuses and incentive payments made by the CAARNG found that a large percentage of these payments were improper.  The applicant's SLRP incentive and payments were among those found to be improper.  It was determined that  she was not entitled to receipt of the monies paid under the SLRP because the SLRP addendum was not processed at the time of enlistment, she was not in a qualifying military occupational specialty (MOS), and not all of her loans were Federal loans.

3.  The applicant's command issued her a GOMOR for her part in the improper processing of the SLRP documentation resulting in an improper receipt of payments under the SLRP.  Upon appeal and review by the issuing officer, the applicant was found to not be culpable when she received unauthorized funds and it was directed that the GOMOR be placed in her local file for a period of one year.  A copy of the GOMOR is currently included in the restricted section of her permanent record.

4.  On 8 February 2013, an advisory opinion was obtained from the National Guard Bureau.  The advisory official recommended approval of the applicant's request.  He outlined the basic history of the applicant's situation, the GOMOR actions, a 17 January 2013 NGB Guard Strength Enterprise Division e-mail, and the pertinent regulations.  He notes that some of the loans were private loans and that the ARNG policy does not allow for payment of private loans.  However, because the applicant enlisted in good faith and had otherwise fulfilled her obligations under the contract, an exception to policy or a waiver for the payment of the unpaid private loans should be made.  The actions of the California incentives manager were not the fault of the applicant and she should not be penalized for those actions.  The State concurred with the recommendation.

5.  A copy of the advisory opinion was forwarded to the applicant who concurred with the recommendation.

6.  The e-mails provided by the applicant basically state the same findings and determinations as stated in the advisory opinion.  Included in the information provided is the fact that the applicant did not enlist in a qualifying MOS but had been subsequently transferred into a qualifying MOS.  

7.  It is noted that the incentives manager responsible for authorizing the improper payments is now serving a 30 month sentence for her illegal actions.

8.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) provides the following:

	a.  All required addenda are to be completed at the time of the enlistment/reenlistment or extension.  An addendum cannot be completed after the fact in order to gain eligibility for an incentive or the SLRP.

   
   b.  for eligibility under the SLRP, an applicant must: 
   
   (1)  enlist with a high school diploma;
   
   (2)  enlist for a term of service of not less than 6 years;
   
   (3)  have an Armed Forces qualification test score of 50, or higher on the Armed Services Vocational Aptitude Battery;
   
   (4)  possess a loan or loans that were made, insured, or guaranteed under the higher education act of 1965, Title IV, Part B, D, or E prior to entering active duty;

   (5)  have completed an SLRP guarantee addendum; and
   
   (6)  be issued a Bonus Control Number.
   
c.  A Soldier will not be eligible for any loan repayments until they have:

   (1)  completed IADT;
   
   (2)  have received sufficient training to be deployed;
   
   (3)  have served 1 year in the Selected Reserve after securing the loan or loans; and
   
   (4)  have reached the anniversary date of the Selected Reserve contract for SLRP participation.

9.  Department of Defense Instruction 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.  

10.  Title 10, U.S. Code, section 1552, the law which provides for the Board, states that “The Secretary may pay, from applicable current appropriations, a 
claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not enlist in a qualifying MOS and the private student loans, for which she has already received payments, are not covered under the SLRP.

2.  It appears that the applicant along with a very large number of other CAARNG Soldiers, through no direct fault of their own, were caught up in the improper and/or illegal acts of the incentives manager.  

3.  The applicant followed the direction of the incentives manager in her filing of the addendum after the fact and back-dating the addendum.  She should not be held at fault for the illegal actions of the incentive manager.

4.  It is appropriate to grant relief in this case.

5.  Based on the NGB advisory opinion, it is reasonable to accept that if her case had been properly considered and acted upon the applicant would have been eligible for participation in the SLRP at the time of her 2007 enlistment.  

6.  The applicant’s military records may be corrected to show her SLRP addendum was completed in a timely manner and that her enlistment contract was amended to include the sentence “If a student loan is accepted by the officials processing you for enlistment as payable under the SLRP and the government fails to verify that the member is eligible for payment of those student loans and such failure results in nonpayment of the loan by the SLRP or the repayment or default of the loan, the Army Board for Correction of Military Records may pay the loan, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.”  This would allow the Board to invoke that provision and pay her the amount her lending institutions would have been paid under the SLRP.

7.  It is noted that the GOMOR the applicant received for her part in the improper processing of the SLRP documentation (and of which she was subsequently found to be not culpable) was originally directed to be filed only in her local file 


but is currently included in the restricted section of her permanent record.  However, since she does not specifically request removal of the GOMOR from her permanent record with her current application no action can be taken to remove that GOMOR at this time.

BOARD VOTE:

____x___  ____x____  ___x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the Department of the Army and Army National Guard records of the individual concerned be corrected by showing her SLRP addendum was completed in a timely manner and that her enlistment contract was amended to include the sentence “If a student loan is accepted by the officials processing you for enlistment as payable under the SLRP and the government fails to verify that the member is eligible for payment of those student loans and such failure results in nonpayment of the loan by the SLRP or the repayment or default of the loan, the Army Board for Correction of Military Records may pay the loan, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.”

2.  That as a result of the foregoing correction the Defense Finance and Accounting Service shall remit payment to the applicant of the total amount of her student loans to which she is entitled as a result of this correction.  The applicant may be required to submit the appropriate evidence (promissory notes, etc.) to the Defense Finance and Accounting Service to determine the amount due.



      _______ _   _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)                                         AR20130002448





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ABCMR Record of Proceedings (cont)                                         AR20130002448



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