IN THE CASE OF:
BOARD DATE: 4 March 2014
DOCKET NUMBER: AR20130015483
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 his records to show he is entitled to the full amount he contracted to receive under the Student Loan Repayment Program (SLRP).
2. The applicant states he contracted for the SLRP in the amount of $20,000.00 based on his extension in the South Dakota Army National Guard (SDARNG) on 10 January 2009. He accepted a military technician (MT) position on 11 October 2009 after being told he could keep his SLRP benefits. He was subsequently informed he was not authorized SLRP benefits because he accepted an MT position and advised that recoupment action would be taken. He feels he should not be penalized for someone else's mistakes.
3. The applicant provides the documentation listed in his application on page 5.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was serving in the SDARNG on 10 January 2009 in pay grade E-5 when he signed a $20,000.00 SLRP agreement for the critical military occupational specialty (MOS) 21E (Heavy Construction Equipment Operator) in connection with his extension of enlistment in the SDARNG. As part of his agreement, he acknowledged that he understood the SLRP would be terminated under the following conditions:
* acceptance of an MT position
* acceptance of a Title 10 or Title 32 Active Guard Reserve (AGR) tour
* voluntarily transfer out of the critical MOS for which contracted
* acceptance of a commission as a commissioned or warrant officer
3. On 30 April 2010, the applicant was promoted to pay grade E-6 as an officer candidate attending Officer Candidate School.
4. He was appointed as a Transportation Corps second lieutenant by the SDARNG on 20 August 2011 and was granted Federal recognition on 10 July 2012. He was promoted to the rank of first lieutenant on 20 February 2013.
5. On 12 July 2013, the National Guard Bureau (NGB) disapproved the applicant's request for an exception to policy to retain the SLRP bonus based on his acceptance of an MT position in violation of NGB directives.
6. In the processing of this case a staff advisory opinion was obtained from the Department of the Army Office of the Deputy Chief of Staff, G-1, which recommends granting full administrative relief because the Army G-1 granted an exception to policy for ARNG members accepting AGR and MT positions between 17 April 2009 and 3 November 2010 due to conflicting guidance disseminated at the time. The advisory opinion was forwarded to the applicant for comment; no response has been received to date.
7. On 18 February 2014, G-1 provided a clarifying advisory opinion to address whether the applicant should retain the SLRP based upon his subsequent commissioning. That office opined that since the applicant did not accept an Officer Accession Bonus the SLRP should not be terminated or suspended. A copy of this advisory opinion was provided to the applicant. He responded that he concurred.
8. National Guard Bureau Memo, dated 10 August 2007 and updated 17 February 2009, subject: Army National Guard (ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 30 September 2009 (Policy Number 07-06) with updates, states in:
* Paragraph 9(a)(7) that enlisted Soldiers receiving the SLRP remain eligible upon commissioning, subject to the original restriction that their SLRP will be paid within the same period established in their original enlistment documents
DISCUSSION AND CONCLUSIONS:
1. Based upon G-1s advisory opinion concerning the conflicting guidance given out during the period the applicant accepted an MT position, his records should be corrected to show the NGB approved his request for an exception to policy to retain the SLRP even after accepting the MT position.
2. Based upon the SRIP guidance in NGBs Policy Number 07-06, the applicant would then be eligible to retain the SLRP even after his commissioning.
BOARD VOTE:
____X___ ____X___ ___X__ _ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by showing the NGB approved his request for an exception to policy to retain the SLRP after accepting the MT position and thereby making him eligible
to retain the SLRP even after his commissioning and paying him his SLRP benefits out of ARNG 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) AR20130015483
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ABCMR Record of Proceedings (cont) AR20130015483
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