IN THE CASE OF:	  

		BOARD DATE:  5 November 2013

		DOCKET NUMBER:  AR20130012087 


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 cancellation of the recoupment action against his Chaplain Loan Repayment Program (CLRP) contract.

2.  The applicant states the Missouri Army National Guard (MOARNG) made a final ruling to recoup the amount of $20,000.00 in CLRP pertaining to his request for an exception to policy, dated 11 June 2013.  This was done to allow payment of the second and final half of his Officer Accession Bonus (OAB) of $5,000.00.  He signed two written agreements authorizing him the CLRP and the OAB.  He signed the agreements in good faith and has fulfilled his obligation.  The error in authorizing him both the OAB and CLRP was neither by design nor with his knowledge.  The officer recruiter had him sign the documents.  He should not be penalized because of this administrative error.

3.  The applicant provides:

* Written Agreement – OAB Addendum, dated 28 August 2008
* Written Agreement – CLRP Addendum, dated 2 October 2008
* MOARNG memorandum, dated 2 October 2012, subject:  Request for Exception to Policy
* National Guard Bureau (NGB) memorandum, dated 11 June 2013, subject:  Request for Exception to Policy for OAB (Applicant)
* MOARNG memorandum, dated 18 June 2013, subject:  Notification of Incentive Discrepancy and Exception to Policy Process


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army and the MOARNG in the rank of first lieutenant on 28 August 2008.  In connection with his appointment, he executed two written agreements.

2.  He signed an Written Agreement – OAB Addendum on 28 August 2008 wherein he agreed to accept an appointment as an officer in the Armed Forces to serve in the Selected Reserve (SELRES) for 6 years, the full period of this agreement, in a critical officer skill designated for bonus entitlement by the Chief of the Army National Guard in exchange for payment of an accession bonus in the amount of $10,000.00 to be paid upon successful completion of the officer basic course (OBC) or, if not accessed into a modified table of organization and equipment unit, to be paid in two installments – $5,000.00 upon completion of OBC and the other $5,000.00 on the third anniversary.  The agreement was signed by the applicant and a witnessing officer and assigned a bonus control number.

3.  He also signed a Written Agreement – CLRP Addendum on 2 October 2008 which shows he applied for the CLRP and he agreed to participate satisfactorily in training and duty with the SELRES in exchange for repayment of loans made on his behalf, not to exceed $20,000.00 for each 3 years of obligated service.  The agreement was signed by the applicant and a service representative.

4.  The applicant attended and successfully completed the Chaplain Basic Officer Leader Course at Fort Jackson, SC, from 4 January 2009 through 3 April 2009.  He was promoted to captain on 26 March 2010.

5.  On 2 October 2012, he submitted a request for an exception to policy regarding his accession bonus after being made aware of an administrative error that occurred during the signing of the contract.  He and his chain of command indicated he had received the first $5,000.00 installment of the OAB as well as two of three CLRP payments.

6.  On 11 June 2013, NGB approved the portion of his request to retain the full $10,000 OAB.  However, approval was contingent upon termination of the CLRP with recoupment since he was not authorized both incentives for the same period of service.

7.  On 18 June 2013, the MOARNG initiated a Notification of Incentive Discrepancy and Exception to Policy Process advising the applicant that a discrepancy had been discovered in his CLRP contract.  Per NGB Policy Memorandum 07-06, dated 10 August 2007, subject:  ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007 (1 August 2007-28 February 2009) and Department of Defense (DOD) instructions, he was not authorized both the OAB and CLRP simultaneously.  Full recoupment of his CLRP is required.

8.  An advisory opinion was obtained from the Department of the Army Office of the Deputy Chief of Staff, G-1, on 16 September 2013 in the processing of this case.  The advisory official stated this advisory opinion responds to applicant's request for relief from recoupment of the CLRP funds.

	a.  Documentation provided in the applicant's request indicates he contracted for the SELRES OAB on 28 August 2008 and later contracted for the CLRP on 2 October 2008.  Title 37, U.S. Code (USC), section 308j, is the statutory authority for the SELRES OAB and prescribes eligibility criteria.  Section 308j, paragraph (f), indicates a person may not receive an accession bonus and financial assistance under Title 10, USC, chapter 1608, 1609, or 1611, or under Title 37, USC, section 302g, for the same period of service.  Title 10, section 16303, is the statutory authority for the CLRP.  Under the provisions of section 308j, paragraph (f), it is unlawful for the applicant to receive money for the CLRP and the OAB while simultaneously completing the service obligations for each incentive.  These restrictions are also included in DOD guidance for the bonus (DOD Instruction 1205.21, enclosure 15; DOD Financial Management Regulation, volume 7A, chapter 56, paragraph 560106; All Army Activities Message 017/2005; and the OAB agreement he signed).

	b.  The Army G-1 office verified with NGB that the applicant applied for and received CLRP payments on 7 December 2009, 23 February 2011, and 28 April 2011.  To receive CLRP, the officer is required to complete the service obligation (in 1-year increments) before each payment is made.  Therefore, the applicant served the obligation periods for OAB and CLRP simultaneously.  Because he contracted for the OAB first, immediately began serving the obligated period for the bonus, and was paid $5,000.00 on 17 April 2009, he was ineligible to contract for the CLRP.  Additionally, according to other documents provided with the request for relief, the applicant received an exception to policy on 11 June 2013 from NGB to receive the final $5,000.00 installment of the OAB.  Therefore, it is this office's view that recoupment of the CLRP is appropriate in this instance.

	c.  Based upon the aforementioned statutory and policy restrictions and the facts as outlined above, the Army G-1 recommends disapproval of the applicant's request.  While he complied with all terms of the contracts offered to him by the service representative, he was offered the CLRP in contravention to law and DOD and Army policy because he was already contracted for the OAB.  Also, the Army G-1 recommends furnishing a copy of the Board's decision to NGB in order to terminate or finalize the recoupment action, as applicable.

9.  The applicant was furnished a copy of this advisory opinion.  He responded with a self-authored statement as well as a statement from his commander.

	a.  In his statement, dated 24 September 2013, the applicant stated he cannot pay back the $20,000.00 and does not feel he should.  He did not know anything about this process when he contracted.  He did what his recruiter told him to do.  If there was any wrongdoing, it was that of the recruiter.  If he had known, he would have elected the CLRP vice the OAB since the CLRP is higher than the OAB.  He is a chaplain, not a lawyer.  Nevertheless, he served faithfully and honorably.  He should not be penalized for the wrongdoing of others.

	b.  In a statement, dated 23 September 2013, his commanding officer supported his request to be relieved from the recoupment action.  He was unaware of the administrative rules and qualifications associated with contracting.  He trusted the recruiter to do the right thing.  The applicant should not be penalized for that.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contracted for the SELRES OAB on 28 August 2008 and later contracted for the CLRP on 2 October 2008.  By law and regulation, a person may not receive an accession bonus and financial assistance for the same period of service.  Title 37, section 308j, states it is unlawful for the applicant to receive money for CLRP and the OAB while simultaneously completing the service obligations for each incentive.

2.  The applicant applied for and received CLRP payments on 7 December 2009, 23 February 2011, and 28 April 2011.  In order to receive CLRP, he would have been required to complete the service obligation (in 1-year increments) before each payment is made.  Therefore, he served the obligation periods for OAB and CLRP simultaneously.  However, because he contracted for the OAB first, immediately began serving the obligated period for the bonus, and was paid $5,000.00 on 17 April 2009, he was ineligible to contract for the CLRP.

3.  However, given the overall circumstances in the applicant's case, it appears that if he had known of the legal prohibition regarding receiving both incentives for the same period of service, it is reasonable to presume he would have elected the incentive that pays him a higher amount (as he indicated in his rebuttal to the advisory opinion).  

4.  Therefore, as a matter of equity, and notwithstanding the advisory opinion rendered b the NGB and the Army G-1, the applicant's records should be corrected to show he contracted for the CLRP incentive vice the OAB incentive at the time of his appointment in 28 August 2008 and he should be paid monies authorized by this incentive as a result of this correction. 

BOARD VOTE:

________  ________  ________  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 partial relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by:

* showing he properly executed a Written Agreement - Chaplain Loan Repayment Program Addendum on 28 August 2008
* paying him, from Army National Guard funds, all monies authorized under this incentive, as long as he remains qualified, as a result of this correction
* rescinding and removing from his record the OAB Written Agreement Addendum, dated 28 August 2008 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to authorizing him both the OAB and the CLRP incentives. 



      _________________________
                 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)                                         AR20130012087



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