BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130006214 


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 reinstatement of her Student Loan Repayment Program (SLRP) benefits in the U.S. Army Reserve (USAR).

2.  The applicant states she was a drilling member of the USAR and her 1998 enlistment contract entitled her to the SLRP.  In 2008, she accepted a temporary dual-status civilian Military Technician position from 3 February 2008 to 2 February 2009.  Upon submitting her annual application to the SLRP benefits office in 2009, she was notified by the SLRP Team at Fort McCoy, WI, that she was disqualified because her temporary civilian appointment exceeded 6 months and therefore was not considered temporary.  She reviewed all references related to this subject and filed an Inspector General (IG) complaint.  The IG's recommendation was for her to submit an exception to policy to reinstate her benefits.  However, the governing regulations and memoranda are unclear.  Even collectively, the DA Form 5261-4-R (SLRP Addendum), dated February 1996; Army Regulation (AR) 135-7 (Incentives Program); Army National Guard (ARNG) and USAR Incentives Program, dated 15 April 1996; and the Selected Reserve Incentives Program (SRIP), dated 20 August 2007, do not provide adequate notification as outlined in Department of Defense Instructions (DODI) 1205.-21 (Reserve Component Incentive Program Procedures).  She also states:

	a.  The SLRP Addendum (DA Form 5261-4-R - February 1996), Section VII (Termination) states entitlement to SLRP will be terminated if the Soldier accepts "a permanent civilian position where membership in the Selected Reserve is a condition of employment (a temporary civilian assignment is excluded)" [italicization is part of the original text].  She signed this document when she enlisted on 12 February 1998.  The dual-status position she accepted was advertised on Civilian Personnel Online (CPOL) as temporary, it was to pay no benefits, and it would not exceed one year.  The position was announced by Civilian Personnel Advisory Center (CPAC) Fort McCoy to her as temporary and it was discussed with the Supervisory Staff Administrator (SSA) as temporary.

	b.  The SRIP Information (8/20/2007, current version to-date) document provided from CPAC Fort McCoy paraphrases while still specifying AR 135-7, ARNG and USAR Incentive Programs, chapter 5-1 in its SLRP paragraph: "Student Loan Repayment.  In accordance with AR 135-7, chapter 5-1, all SLRP annuities are subject to termination due to acceptance in a civilian position where membership in the Selected Reserve is a condition of employment."  It does not refer to any other regulations or instructions.  However, when referencing AR 135-7 (15 April 1996, current version to-date), chapter 5, paragraph 5-1(6)(d), it states that SLRP can be terminated if the Soldier "accepts a permanent civilian position where membership in the ARNG or USAR is a condition of employment." It does not address temporary or non-permanent appointments, nor does it reference further instructions or regulations.  

	c.  When she was offered the position and provided with the SRIP Information document by CPAC, she did not sign it because she believed it did not pertain to her appointment as a temporary civilian.  She said as much to the human resources contact and he accepted that she would not sign the document and she was still offered the assignment.  The appointment was effective 3 February 2008 and the Standard Form 50-B (Notification of Personnel Action) executing that references the appointment as temporary.  After the appointment expired she submitted her annual application for her SLRP benefit as required in her anniversary month of February.  She soon received notification from the SLRP Team Fort McCoy that the appointment nullified her entitlement to SLRP.  Only after requesting specifically why she was disentitled was DODI 1205.21 named and a copy provided.  At this time, she learned DODI 1205.21, E2.1.23 (20 September 1999) defines a Military Technician as temporary "when the assignment is for a period of less than 6 months and there is no expectation of continued employment as a military technician beyond that date."  This is the doctrine and definition by which her SLRP entitlement was disqualified.  DODI 1205.21 is not referenced in the DA Form 5261-4-R or AR 135-7 or the SRIP Information document.

3.  The applicant argues that: 

	a.  It is unfair that her benefits were disqualified on the basis of DODI 1205.21, when she could not have reasonably known about this Instruction or its provisions.  Further, she made all reasonable efforts to ensure that her temporary appointment was in compliance with the terms of her SLRP entitlement as outlined in the governing regulations of which she was aware and advised prior to accepting her appointment.  Given that AR 135-7 and DA Form 5261-4-R do not make reference to DODI 1205.21, it is unreasonable to expect a reasonable person to logically seek out DODI 1205.21.  With no further information available, nothing more can be expected than that a reader would define a temporary position as one that is not permanent, is not to exceed one year, and is without benefits.  Furthermore, the job she accepted was specifically advertised as temporary. 

	b.  DODI 1205.21,6.2 states that "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."  Section 6.2 also points to model agreements with the caveat that "service-specific agreements may be used, if they include all elements of the model agreements."  The documents and references which were available to her to formulate her decision to accept or decline the dual-status assignment were the SRIP Information paper (8/20/2007); AR 135-7, Incentive Programs; and SLRP Addendum, DA Form 5261-4-R (February 1996).  None of these documents meet the requirements of DODI 1205.21, 6.2 Written Agreements.  

	c.  Additionally, these documents collectively do not include all elements of the model agreement.  Furthermore, the SRIP Information paper is misleading under the SLRP paragraph.  The SRIP Information paper states "in accordance with AR 135-7, chapter 5, all SLRP annuities are subject to termination due to acceptance in a civilian position where membership in the Selected Reserve is a condition of employment."  AR 135-7, chapter 5-1(6)(d) specifically states that "entitlement to the SLRP will stop if the Soldier accepts a permanent civilian position where membership in the ARNG or USAR is a condition of employment." There are no other sections of chapter 5 that discuss termination in regard to civilian employment.

4.  The applicant provides:

* Excerpt of AR 135-7, dated 15 April 1996
* DA Form 5261-4-R, dated 12 February 1998
* Excerpt of DODI 1205-21
* Standard Form 50 (Notification of Personnel Action)
* SRIP Information
* Email exchange with various individuals
* DA Form 1559 (Inspector General Action Request)
* Permanent Change of Station (PCS) Orders 043-290, dated 12 February 2013
* Request for legal name change
* Multiple other orders to active duty
* Multiple DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Request for an exception to policy with Statement of the Case
* USAR Loan Repayment Program Consolidated Principal Disbursement Record
* Multiple DD Forms 2475 (DOD Educational LRP Annual Application) with loan documents and billing statements

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the USAR on 12 February 1998. With this enlistment, she executed a DA Form 5261-4-R (SLRP Addendum).  She indicated:

	a.  She was contracting for completion of initial active duty for training (ADT) and qualification in military occupational specialty (MOS) 38A (Civil Affairs (CA) Specialist), which Headquarters, Department of the Army (HQDA) has approved for a maximum of $10,000 in loan repayment.  

	b.  The incentive would be terminated if she accepted a permanent civilian position where membership in the Selected Reserve is a condition of employment (a temporary civilian assignment is excluded).  

2.  She entered ADT on 17 June 1999 and successfully completed required training for MOS 38A.  She was released from ADT on 2 September 2009.  She was assigned to the 407th CA Battalion, a subordinate unit of the 308th CA Brigade, 353rd CA Command, U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC), Fort Bragg, NC.

3.  She served through multiple reenlistments in a variety of stateside or overseas assignments and she attained the rank/grade of sergeant first class (SFC)/E-7.  

4.  She provides a Standard Form 50-B, dated 3 February 2008, that shows she accepted appointment as a Staff Administrative Assistant to the USACAPOC, 407th CA Battalion, 308th CA Brigade, 353rd CA Command, Fort Bragg, NC.  The Standard Form 50-B states the nature of the action is "Appointment not to exceed 2 February 2009."  It also states: 

* Appointment is subject to completion of a one year initial probationary period beginning on 3 February 2008
* As a condition of employment, you are required to maintain membership in the USAR unit in which employed, meet both military and civilian position skill compatibility, and satisfy the military membership required by AR 140-315 (Employment and Utilization of USAR Military Technician)
* Temporary employees serve under appointment limited to one year or less and are subject to termination at any time without use of adverse action or reduction in force procedures
* A temporary appointment does not confer eligibility to be promoted or reassigned to other positions, or the eligibility to be non-competitively converted to career-conditional appointment
* This position is obligated

5.  She also provides a Standard Form 50-B, dated 2 February 2009, that shows her civilian appointment was terminated or expired at the one-year mark, 2 February 2009. 

6.  In or around February 2009, she submitted an online inquiry to the SLRP Team inquiring about her anniversary payment of the annual SLRP.  An online response dated 26 February 2009 shows she was advised that since she was listed as a Military Technician effective 3 February 2008 she was ineligible for the SLRP repayment.  She was asked to submit her Standard Form(s) 50.   

7.  On 13 August 2009, she submitted an exception to policy through her chain of command to the Commander, USACAPOC.  She stated that she was a drilling member of the USAR and her enlistment contract entitled her to the SLRP.  She accepted a temporary civilian Military Technician position from 3 February 2008 to 2 February 2009.  Upon submitting her annual application for the SLRP benefits in 2009 she was notified by the SLRP Team at Fort McCoy that she was disqualified because her temporary appointment exceeded 6 months and was therefore not considered temporary.  She reviewed all references related to this subject and filed an IG complaint who recommended she submit an exception to policy to reinstate her benefits.  

8.  Her company, battalion, and brigade commanders favorably endorsed her request.  The decision by the USACAPOC Commander is not available for review with this case.  An email, dated 30 October 2009, from the USACAPOC IG suggests no action was taken on her request for exception to policy.

9.  An advisory opinion was received from the USAR Command (USARC), Fort Bragg, NC, in the processing of this case.  An advisory official recommended disapproval of the applicant's request to retain her SLRP incentive based on the following:

	a.  As defined on the Office of Personnel Management (OPM) Website: Types of Appointment (Status)- The Federal Government employs permanent and temporary employees.  Permanent employees are generally hired under a career-conditional appointment (Permanent - Career-Conditional Appointment). Normally this is the first career type of appointment and the appointee must complete a one-year probationary period and a total of three years continuous creditable service to attain a career appointment (Permanent - Career Appointment).

	b. Temporary appointments are defined as appointments expected to last for a specified period not to exceed one year (Temporary Appointment - Time limited not to exceed one year but could be less) or a specified period of time that is at least more than one year but not to exceed four years (Term Appointment - Time limited more than one year but not more than four years).  Neither type of appointment is a permanent one, so they do not give the employee competitive/permanent status.

	c.  [Applicant] was on a temporary appointment from 3 February 2008 to 2 February 2009.  Her tenure code in block 24 of the enclosed Standard Form 50 is zero (o). 

	d.  DODI 1205-21, dated 20 September 1999, is the first time there was language as in section 6.6, Relief from Termination, paragraph 3 "Persons accepting military technician positions on a temporary assignment of less than six months."  Her assignment was temporary, but it exceeded the six-month limitation for relief from termination. 

	e.  The DODI also states in section 6, Procedures, paragraph 2, regarding Written Agreements ….."Services shall use the model written agreements set out in this Instruction at enclosures 3 through 13.  However, Service-specific agreements may be used, if they include all elements of the model agreements. "

	f.  The enclosures in the DODI contain the language necessary for the enlistment/reenlistment contract addenda for each type of incentive.  DA has never updated their SLRP Addendum to contain the changes to the language as required by the DODI.  The version of the form available on the Army Publishing Directorate website is the one dated February 1996.  [Applicant] signed her contract well after DODI 1205.21 went into effect and thus is subject to the requirements of the DODI, but the addendum she signed does not include the required changes to the language.

10.  The applicant submitted a rebuttal to the advisory opinion.  She stated:  

	a.  It was clear to her USARC based their decision on the guidance outlined in the regulations and instructions that she is ineligible to use the remaining $6,571.73 of her SLRP.  She is not contending this fact in the least.  It is her contention, however, that she was improperly notified regarding the parameters under which she would be disqualified for this benefit due to incomplete and, sometimes, even misleading guidance.

	b.  Well after DODI 1205.21 was re-published in 1999, Fort McCoy CPAC, an agency ordained to advise civilian personnel, produced the SRIP Information Microsoft Office Word document.  It was provided to her in 2008.  As per DODI 1205.21 paragraph 6.2, service specific agreements may be used if they contain all of the same elements as outlined in the model agreements.  By this measure alone, the information contained in the SRIP Information document is inarguably incomplete.  As the experts of their field, it is illogical for an applicant to assume the information they provide would be incomplete or incorrect.  The information they are required but fail to provide is pivotal in determining continued eligibility for what could be, for some, a sizeable benefit.  This document remains on Fort McCoy's CPAC hiring page as part of their required documents for applicants, despite her phone calls notifying them that it fails to meet regulatory guidance.

	c.  While the SLRP processing office was readily able to provide a copy of the applicable section of DODI 1205.21, in discussions with a senior member of the Fort McCoy Education Office's staff at a post-deployment activity in 2010 even she indicated it was unreasonable for her (the applicant) to be disentitled by this instruction.  She felt it was unreasonable for a layperson, even an experienced Soldier, to be expected to be aware of this instruction, and that she (the applicant) would thereby be disentitled.

	d.  While disqualifying her from the entitlement based on what the instructions and regulations outline may be the literal right answer, given the overall circumstances she does not believe that it is the right answer, logically.  All of the documents and information that she had any reasonable expectation of having access to indicated the position to which she was agreeing was temporary.  All of the research she performed led her to understand that disentitlement was only applicable to permanent positions and that temporary positions were specifically excluded.  It is for these reasons, and those outlined in her previously-submitted statement and references, that she applied for reinstatement of her benefits.  That is still her ultimate objective.
11.  DODI 1205-21, dated 20 September 1999, reissues DOD Directive 1205.21 (Reserve Component Incentive Programs Procedures), dated 1 March 1996 (hereby cancelled) to update policy, assign responsibilities, and prescribe procedures under DOD Directive 1205.20 (Reserve Components Incentive Programs), dated 8 January 1996, for management of the Reserve Components incentive programs.

	a.  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.  Services shall use the model written agreements set out in this Instruction (at enclosures 3 through 13).  However, Service-specific agreements may be used, if they include all elements of the model agreements.

	b.  Section 6.6 (Relief from Termination (of Incentive)) applies to persons accepting military technician positions on a temporary assignment of less than 6 months. 

	c.  Section 6.9 (Exception to Recoupment):  Recoupment is not required in the following circumstances when an incentive is terminated:  Sub-section 6.9.3. If accepting an Active Guard Reserve position or a military technician position where membership in a Reserve component is a condition of  employment, and member has served at least 6 months of the incentive contract following receipt of the initial incentive payment.

12.  AR 135-7 (15 April 1996, current version) prescribes policies and procedures for the administration of the ARNG and USAR incentive programs. These programs include the SRIP which offers bonuses, educational assistance, and repayment of student loans.  Chapter 5 covers the SRIP.  

	a.  Paragraph 5-1 states the SLRP incentive provides for the repayment by the Government of a designated portion of any outstanding loan(s) secured after 1 October 1975.  To be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily.  A person must serve in the Selected Reserve for the full term of the contractual agreement.  He or she 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.

	b.  Paragraph 5-1(6) (Termination):  Entitlement to the SLRP will stop if the Soldier accepts a permanent civilian position where membership in the Reserve is a condition of employment.

	c.  Paragraph 5-1(10) (Longevity) states effective 1 January 1992, once a Soldier has enlisted, reenlisted, immediately reenlisted, or extended and executed a DA Form 5261–4–R to participate in the SLRP, the provisions of the DA Form 5261–4–R will remain in force until the earlier occurrence of one of the following: participation in the SLRP is terminated; the maximum SLRP benefit, as appropriate, has been paid; or the Soldier transfers between the Reserve Components of the Army (ARNG and USAR).  

13.  Army Regulation 140-315 (Employment and Utilization of USAR Military Technicians), dated 5 July 1985, establishes policies and prescribes procedures for the employment, utilization and separation of military technicians by the USAR.  The objectives of the military technician (MT) program are to assist in the achievement of maximum mobilization and combat readiness of USAR troop program units through the employment of civilians and use military technicians in a dual civilian/military capacity.  The use of civilian employees who are military reservists of the Troop Program Unit (TPU) to which assigned as civilians will ensure that technicians are available at regularly scheduled training assemblies in a USAR military status that parallels their unit assignment, technicians deploy as military personnel with their unit upon mobilization, and skill levels needed for mobilization are maintained.

	a.  Paragraph 5 (Authority) states civilian employment in the MT program is subject to the provisions of Title 5, U.S. Code, as implemented by the Office of Personnel Management in Title 5, Code of Federal Regulations, Federal Personnel Manual (FPM), and Department of the Army regulation on civilian personnel.  This regulation implements the provision of the MT program as set forth in governing laws and statutes and the Memorandum of Understanding (MOU) between HQDA and the Office of Personnel Management, dated 5 July 1960; revised 1 September 1970.  In 1970, a renegotiated MOU between DA and the Civil Service Commission made Reserve unit membership a required condition of employment. 

	b.  Paragraph 8 (Utilization and Separation) states, for individuals appointed after 8 December 1983, military technicians are required as a condition of employment to maintain continuing membership in the USAR unit in which employed or if employed in other than a TPU, be a member of any element of the USAR Selected Reserve.  Failure to meet this military obligation constitutes failure to meet this condition of employment (1985 Appropriations Act).

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR in February 1998 for an SLRP incentive. Her written agreement stipulated that the incentive would be terminated if she accepted a permanent civilian position where membership in the Selected Reserve is a condition of employment (a temporary civilian assignment is excluded).  She accepted a civilian position from 3 February 2008 to 2 February 2009 and her membership in the USAR was a condition of her employment. 

2.  Generally, all ARNG/USAR incentives are terminated when a member accepts a permanent civilian position where membership in the Reserve is a condition of employment.  The two key issues here are whether the applicant's employment was temporary or permanent and whose definition is used.  

3.  According to OPM, the Government employs permanent and temporary employees.  Neither type of appointment is a permanent one, so they do not give the employee competitive/permanent status:

	a.  Permanent employees are generally hired under a career-conditional appointment (Permanent - Career-Conditional Appointment).  Normally this is the first career type of appointment and the appointee must complete a one-year probationary period and a total of 3 years continuous creditable service to attain a career appointment (Permanent - Career Appointment).  

	b.  Temporary appointments are defined as appointments expected to last for a specified period not to exceed one year (Temporary Appointment - Time limited not to exceed one year but could be less) or a specified period of time that is at least more than one year but not to exceed 4 years (Term Appointment - Time limited more than one year but not more than 4 years).  .

4.  DODI 1205-21, dated 20 September 1999 (after the applicant had executed her enlistment contract in February 1998), is the first time there was language as in section 6.6(3) which states persons accepting military technician positions on a temporary assignment of less than six months.  The DODI defines a temporary appointment as one that last 6 months or less.  The applicant's assignment was temporary (according to OPM), but it exceeded the 6-month limitation for relief from termination.  

5.  While the DODI contains the language necessary for the enlistment/ reenlistment contract addenda for each type of incentive, the Army has never updated their SLRP Addendum to contain the changes to the language as required by the DODI.  Therefore, it is reasonable to presume that had the Army updated its SLRP Addendum, the applicant would have been in a better position to make decisions regarding potential conflicts between her SLRP entitlement and civilian employment.  She enlisted in good faith and she continues to serve today.   

6.  Contrary to the contents of the advisory opinion indicating that the applicant signed her contract well after DODI 1205.21 went into effect in 1999 and thus is subject to the requirements of the DODI, the evidence shows she enlisted in the USAR and signed her SLRP Addendum in February 1998, while the DODI was republished in 1999.  

7.  Furthermore, it appears the applicant has exercised due diligence by utilizing available resources to resolve her issue.  First, she inquired with the SLRP Team at Fort McCoy and the only explanation she was given was that she was no longer qualified for the SLRP.  Second, she submitted an IG request and the only response she received, at least according to the available evidence, was to submit an exception to policy through her chain of command.  Finally, she submitted an exception to policy that was endorsed by her company, battalion, and brigade commanders, but no action was ever taken, at least based on the available evidence, by her higher command at the USACAPOC or USARC level. 

8.  It appears multiple echelons, despite their good intentions, are happy to tell her she is no longer qualified for the incentive without explaining the authority for such disqualification.  She accepted a temporary civilian position and the Army regulation and her contract that governed her incentive clearly shows "the incentive would be terminated if she accepted a permanent civilian position where membership in the Selected Reserve is a condition of employment (a temporary civilian assignment is excluded)."  

9.  Holding the applicant to a higher standard (DODI) that was neither available at the time nor explained to her would be unjust and contrary to sound personnel management.  Therefore, notwithstanding the unfavorable advisory opinion rendered by USARC, as a matter of equity and in the interest of justice the applicant is entitled to correction of her records to show the exception to policy request she submitted to USACAPOC was approved by USARC and she is entitled to reinstatement of her SLRP incentive. 








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 all Department of the Army records of the individual concerned be corrected by:

* showing the exception to policy request she submitted on 13 August 2009 was timely approved and processed by all required authorities
* reinstating her SLRP incentive and paying her eligible loans in accordance with her SLRP Addendum




      _______ _   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.



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ABCMR Record of Proceedings (cont)                                         AR20130006214



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