IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130015219 


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 her records to show entitlement to a $15,000 enlistment bonus and eligibility for the Student Loan Repayment Program (SLRP).

2.  The applicant states:

* in September 2006, she enlisted in the California Army National Guard (CAARNG) with what was supposed to have been a $15,000 prior service enlistment bonus (PSEB) and a SLRP bonus for a 6-year contract
* she signed a 6-year contract and later her recruiter came back and stated the paperwork was incorrect and that she had to sign another contract
* her 6-year contract was for her to go to Officer Candidate School (OCS) and for unknown reasons her recruiter redid the enlistment contract for a 3-year contract
* she signed a 3-year contract and her recruiter had her sign a 3-year extension to make her enlistment a full 6-year enlistment to make her eligible for the bonuses
* at some point the bonuses were no longer authorized and her recruiter failed to notify her of this
* her recruiter when ahead and submitted the contracts and the State of California paid out the bonuses
* she has 2 different contracts and has no idea which one is correct
* the CAARNG is attempting to recoup over $20,000 from her 7 years later
* she wants an exception to policy (ETP) and the recoupment removed from her records
* she never imagined she would be responsible for knowing that the bonuses were erroneous
* if the contract was no good, then she should have not been deployed to Afghanistan and she should have never been injured
* she held up her end of the contract and completed the entire 6 years and even did a combat tour
* she has been through the ETP process and received a judgment to pay back the money
* she trusted her recruiter and questions how she was supposed to know her recruiter was lying and giving her unauthorized bonuses
* she trusted the recruiting command and they let her down
* she lives the Army Values and questions whether or not recruiters should do the same
* there are over 17,535 Soldiers affected by the CAARNG recruiting command decisions to give bonuses when they are not authorized and this is an outrage

3.  The applicant provides:

* memorandum from Headquarters, CAARNG, Sacramento, CA, subject:  Notification of Termination/Recoupment of Incentives, dated 13 April 2012
* 2 memoranda from National Guard Bureau (NGB), U.S. Property and Fiscal Office for California, Mather, CA, subject:  Incentive Notice of Indebtedness, dated 27 June 2012 and 13 December 2012
* memorandum from Colorado ARNG (COARNG), 220th Military Police Company, Denver, CO, subject:  Exception to Policy Recommendation for [Applicant], dated 9 October 2012
* self-authored letter, dated 25 September 2012
* 2 memoranda from Joint Force Headquarters –COARNG, Centennial, CO, dated 3 January 2013
* 2 DD Forms 2475 (Department of Defense (DOD) Educational Loan Repayment Program Annual Application)
* loan disbursement letter, dated 25 March 2010
* time line with authorized system users, detailed system updates, and a screen shot printout
* 2 DD Forms 4 (Enlistment/Reenlistment Document Armed Force of the United States), dated 25 September 2006
* DD Form 1966 (Record of Military Processing) extracts
* NGB Form 21 (Annex A – DD Form 4 – Enlistment/Reenlistment Agreement – ARNG)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 9 July 2007
* NGB Form 600-7-5-R-E (Annex L to DD Form 4 – Student Loan Repayment Program Addendum – ARNG of the United States), dated 7 March 2007
* NGB Form 600-7-6-RE (Annex X to DD Form 4 – Prior Service Enlistment Bonus Addendum ARNG of the United States), dated 7 March 2007
* Letter from NGB, Arlington, VA, subject:  Request for Exception to Policy for PSEB [Applicant], dated 18 June 2013

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service in the U.S. Navy, the applicant enlisted in the CAARNG on 25 September 2006 for a 6-year period.

2.  A DD Form 4, dated 25 September 2006, shows she enlisted in the CAARNG for a 6-year period.  This DD Form 4 also shows Annexes A, L, and X were executed in conjunction with her enlistment.  Copies of these Annexes are not on file in the applicant's Army Military Human Resource Record.  She provides a copy of Annex A which shows she enlisted as a prior service member with a remaining military service obligation.

3.  A second DD Form 4, dated 25 September 2006, shows she enlisted in the CAARNG for a 3-year period and only Annex A was executed.

4.  Item 32a (Specific Option/Program Enlisted For) of her DD Form 1966 shows the entry "09S – 108/02 – 40th Student Battalion" (09S – Commissioned Officer Candidate).

5.  Orders issued by Joint Force Headquarters, CAARNG show:

	a.  Orders Number 306-1023, dated 2 November 2006, assigned the applicant to the 2nd Cadet Company, San Luis Obispo, CA, to attend OCS and awarded her military occupational specialty (MOS) 09S.

	b.  Orders Number 40-1288, dated 9 February 2007, relieved her from the 2nd Cadet Company, effective the same date.

	c.  Orders Number 157-1092, dated 6 June 2007, withdrew her MOS 09S and awarded her MOS 09B (Trainee) effective 1 June 2007.

6.  On 3 July 2007, the applicant executed:

* Annex L as a prior service Soldier with entitlement to a $20,000 SLRP entitlement in exchange for a 3-year period of service
* Annex X for a $15,000 bonus to be paid in two 50 percent installments of $7,500 less taxes

7.  On 9 July 2007, the applicant extended her enlistment for a 3-year period.

8.  Orders Number 96-1025, issued by Joint Force Headquarters, CAARNG, dated 5 April 2008, awarded the applicant MOS 31B (Military Police), effective 29 March 2008.

9.  An NGB Form 22-5 (Addendum to DD Form 4, Approval and Acceptance by Service Representative for Interstate Transfer in the ARNG), dated 22 December 2008, shows the applicant was transferred to the COARNG effective 19 December 2008 in the critical-skill MOS 31B.

10.  Orders Number 357-1000, issued by Joint Force Headquarters, CAARNG, Sacramento, CA, dated 22 December 2008, transferred the applicant to Detachment 1, 193rd Military Police Company, Fort Carson, CO, effective 22 December 2008 as an interstate transfer.

11.  On 25 March 2010 and 19 October 2011, disbursements were made toward the applicant's student loans.

12.  On 13 April 2012, Headquarters, CAARNG notified the applicant of recoupment action for her PSEB and SLRP bonus citing that the payments were made in violation of DOD guidance and Federal law.

13.  On 27 June 2012, the NGB, U.S. Property and Fiscal Office for California, Mather, CA, notified the applicant of her ineligibility for a $15,000 PSEB payment and referral to the Defense Finance and Accounting Service (DFAS) for collection.  This office cited the reason for her indebtedness was due to her separation from the CAARNG.

14.  On 25 September 2012, the applicant provided a self-authored letter to the NGB Education and Incentive Office stating:

* all the documents presented to her at the time of her enlistment corresponded with the incentives she would receive
* being prior service Navy and a new Soldier in the ARNG, she did not think she was being taken advantage of or misinformed
* she went off what was promised and she was unaware and unable to know the information was invalid
* her student loans had been paid for the last 6 years with the exception of the last payment
* she served 6 years of her contract

15.  On 9 October 2012, an ETP request was submitted by the applicant's commanding officer.

16.  On 13 December 2012, the NGB, U.S. Property and Fiscal Office for California, Mather, CA, advised the applicant of her indebtedness in the amount of $5,912.75 for an SLRP payment made in violation of DOD guidance and Federal law.

17.  On 3 January 2013, a second ETP request was submitted by the applicant's commanding officer.

18.  On 18 June 2013, NGB, Arlington, VA, denied the applicant's ETP request for retention of her PSEB and directed recoupment.  The NGB stated the following as the basis for denial:

   a.  The applicant's contract/bonus addendum was signed after the enlistment documents.
   
   b.  She was not serving in the MOS for which she contracted.  She originally contracted for MOS 09S which was not authorized in accordance with ARNG Selected Reserve Incentive Program (SRIP) policy.  In addition, the bonus control number was requested for a different MOS after the enlistment date.

19.  On 24 February 2014, the applicant was honorably discharged by reason of being medically unfit for retention and transferred to the Retired Reserve.

20.  Title 10, U.S. Code (USC), chapter 1609, section 16301 (Education Loan Repayment Program:  Members of SELRES), outlines the various types of student educational loans the Secretary of Defense may repay.  Repayment of any such loan shall be made on the basis of each complete year of service performed by the borrower.  The Secretary of Defense may repay loans in the case of any person for service performed as a member of the SELRES of the Ready Reserve of an Armed Force in a Reserve Component and in an officer program or military specialty specified by the Secretary of Defense.  The Secretary may repay such a loan only if the person to whom the loan was made performed such service after the loan was made.

21.  Army Regulation 135-7 (Army National Guard and Army Reserve Incentive Programs) restricts the SLRP to those Reserve Soldiers who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOS's and units which is updated on a periodic basis.  This educational incentive may only be elected at the time of enlistment or reenlistment.  This incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility by no longer serving in the approved MOS or unit.

22.  Title 10, USC, section 1552, the law which provides for the Board, states, "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."

23.  ARNG SRIP 06-06 established policy to administer ARNG incentives for the period 26 May-31 December 2006.  The ARNG offered the following PSEB's:

* $15,000 for a 6-year enlistment
* $7,500 for a 3-year enlistment

   a.  Upon the conclusion of the first 3-year enlistment, Soldiers extending for an additional 3 years were eligible receive an extension bonus in the amount of $6,000.

   b.  Prior service applicants and current ARNG Soldiers with existing loans were eligible to enlist or extend at any time for a term of service of not less than 3 years in order to establish SLRP eligibility.

   c.  Soldiers receiving SLRP remained eligible while attending OCS or Warrant Officer Candidate School.  Soldiers also remained eligible upon commissioning or appointment, subject to the original restriction that their SLRP entitlment would be paid within the same time period established in their original enlistment documents.  A new SLRP entitlement would not be established when a Soldier accepted a commission or appointment.

   d.  The ARNG Fiscal Year 2006 Critical-Skill MOS List for the period 26 May 2006 through 31 December 2006 show MOS 31B was in the "Top Ten" and did not list MOS 09S.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that her 6-year contract for a $15,000 enlistment bonus and SLRP bonus be honored was carefully considered.
2.  By law, the Secretary concerned may authorize the SLRP to eligible Soldiers in conjunction with enlistment/reenlistment in the Selected Reserve.  The law allows the Secretary concerned the latitude in establishing the criteria and eligibility for the SLRP.  The governing regulation stipulates that guidance counselors are required to verify the applicants' eligibility for enlistment and counsel applicants who failed to meet specific qualifications for MOS, options, and assignments, for which they applied and advise them of all other available options that would still meet the applicants' needs, wants, and desires as well as the needs of the Army.

3.  The evidence of record confirms the applicant entered into an enlistment contract on 25 September 2006 that included authorization for a $15,000 bonus and SLRP benefits in the amount $20,000 in good faith; however, through no fault of her own, it was later discovered she was not authorized the incentives offered.

4.  In view of the facts of this case, it would be appropriate and serve the interest of justice and equity to correct her record by showing the Army authorized her to receive the previously-paid enlistment bonus and SLRP benefit in question as an ETP and to pay any amounts due based on authorized qualifying student loans.

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 and State Army National Guard records of the individual concerned be corrected by:

	a.  showing her request for an ETP was approved, authorizing the $15,000 PSEB; and

	b.  showing her request for an ETP was approved, authorizing the SLRP benefit as written in her enlistment contract, dated 25 September 2006, and paying her lending institution in accordance with her SLRP Addendum the amount of the loans up to the amount of $20,000 from Army National Guard funds.




      _______ _   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)                                         AR20130015219



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ABCMR Record of Proceedings (cont)                                         AR20130015219



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