IN THE CASE OF:	  

		BOARD DATE:  3 December 2013

		DOCKET NUMBER:  AR20130016655 


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, an exception to policy to retain eligibility for the Student Loan Repayment Program (SLRP) incentive.  

2.  The applicant states:

	a.  On 1 October 2009, she accepted an Active Guard Reserve (AGR) position in the South Dakota Army National Guard (SDARNG) and she was told she would keep her enlistment incentives and she was referred to the memorandum for National Guard Bureau Education Division Incentives (NGB - EDU) 09-058, dated 14 September 2009. 

   b.  On 12 December 2012, the SDARNG State Incentives Manager (IM) notified her that she would not be allowed to continue the SLRP for the duration of her original contract term. 
   
   c.  On 8 February 2013, the SDARNG State IM provided her additional guidance on requesting relief from recoupment. 
   
   d.  On 14 February 2013, she requested as an exception to policy (ETP) that she be granted relief from recoupment but she received a memorandum by certified mail from the NGB denying her ETP request to retain the $20,000 SLRP incentive.  The memorandum also directed her State IM to terminate the incentive with recoupment effective the date of AGR accession.  The memorandum also stated that she became AGR during the contracted period which violates Policy Memorandum Number 07-04, Subject:  ARNG Selective Reserve Incentive Program (SRIP) Guidance for Fiscal Year 2007, 1 January 2007 through 15 June 2007.  This Policy Memorandum states: 

		(1)  Applicability:  This policy guidance applies to ARNG Soldiers in M-Day status only. 

		(2)  Incentives available to military technicians or ARNG Soldiers serving in an AGR status are not covered in this policy. 

		(3)  Terminations without Recoupment:  Soldiers' eligibility for incentives will terminate without recoupment in the following circumstances:  Accepts an AGR position or military technician obligation where membership in the ARNG is a condition of employment, and member has served at least 6 months of the incentive contract term.

	e.  She enlisted in the SDARNG, on 9 January 2007, as an M-Day Soldier.  As a result, no recoupment should occur from her date of enlistment to her AGR accession date of 1 October 2009.  On 1 October 2009, she accepted her AGR position and was told she would keep her enlistment incentives and she was referred to NGB-EDU-09-058, dated 14 September 2009, Subject:  Clarification of Continuing SLRP Benefits Upon Acceptance of an AGR and/or Military Technician Position, which states Soldiers ordered to active duty in the State (Title 32) AGR program and (Title 32) Military Technician Program will be entitled to SLRP payments as long as they are serving under their initial contract and/or agreement for which the SLRP was awarded, "pending service member has received first anniversary payment and has remained in good standing."  

	f.  NGB-EDU-09-058 describes scenario 1: Soldier signs a 6 x 2 initial contract or extends for SLRP benefits; he/she serves 2 years as M-Day Soldier and accepts an AGR position in his/her third year, hence not requiring an extension to meet AGR initial tour requirements, will continue to receive SLRP payments up to the original expiration date of the SLRP contract as established by computation determined from Line 17 on DD Form 4-2 (Enlistment/ Reenlistment Document - Armed Forces of the United States) and/or date established on Block 8c of DA Form 4836 (Oath of Extension of Enlistment or Reenlistment).  On her AGR accession date of 1 October 2009, she had served
2 years, 8 months and 12 days as an M-Day Soldier and should continue to receive SLRP payments up to the original expiration date of the SLRP contract as established by computation determined from Line 17 on her DD Form 4-2: 
6 years, 0 months, 0 days, upon calculation is 18 January 2013. 

	g.  Additionally, NGB-EDU 1.1, dated 1 October 2009, Subject: Chaplain, Health Professional and Enlisted Loan Repayment Programs (CHELRP) states in Section IV Suspension and Termination 4-4 AGR and military technician; 
1.  Soldiers ordered to active duty in the State (Title 32) AGR program and Soldiers accepting employment in the (Title 32) military technician program will be entitled to CHELRP payments as long as they are serving under their initial contract and/or agreement for which CHELRP was awarded.  9. ARNG-HRM-12-021 dated 20 July 2012, states: 5. Recoupment. Incentive payments made for service performed after the contract termination date are not authorized and are subject to recoupment.  This includes payments to AGR and military technician personnel made between 9 October 2008 and 3 November 2010 through a misinterpretation of authority published in references 1.d through 1.g. of this message.  The ARNG does not have the authority to make these payments and previous payments were erroneous.  All recoupment actions will be initiated within 30 days of the publication date of this message. a. 1.e references NGB-EDU 09-058: Misinterpretation of authority is at no fault of her own.  
b. Recoupment action was not initiated within 30 days of 20 July 2012.  She was first notified on 8 February 2013, by her State IM.  10. ARNG-HRM-13-003, dated 14 March 2013, states: 4. Rescinded.  The following memoranda are rescinded effective the date of this message:  a. Memorandum, Education and Incentive Operations Message (EIOM)-EDU 09-058, dated 14 September 2009, Subject: Clarification of continuing SLRP benefits upon acceptance of an AGR and/or military technician position b. EIOM 12-021, 20 July 2012, Subject: Termination of Incentives Contracts for AGR and military technician personnel.

	h.  She accepted her AGR position after (EIOM)-NGB-EDU-09-058 was published and on the same date NGB-EDU 1.1 (CHELRP) was published, guaranteeing her enlistment incentives.  Almost 3 years later ARNG-HRM-12-021 was published stating due to a misinterpretation of authority recoupment will be initiated.  Then 8 months later ARNG-HRM-13-003 was published rescinding (EIOM)-EDU 09-058 and ARNG-HRM-12-021.  It appears there is much confusion and misinterpretation regarding what the policy is.  She was guaranteed her SLRP incentive when she accepted her AGR position, and through no fault of her own, she received payments the NGB said she was not entitled to.  According to all references, she is entitled to receive SLRP payments through the end of her contracted period of 18 January 2013, and not be subject to recoupment.  She should not be punished and recouped for the NGB’s misinterpretation of policy.  If a new policy is written involving personal benefits or incentives, it should not be retroactive.  It is unjust to guarantee a benefit, and then revoke and recoup it.  She is requesting that her SLRP payments continue through the end of her original contracted period of 18 January 2013 and no recoupment of prior payments. 

3.  The applicant provides:

* Email from the State IM
* Request for ETP, denial of ETP, and notification of ETP results
* Policy Number 07-04
* NGB-EDU 1.1 (CHELRP)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the SDARNG on 19 January 2007.  She enlisted for training in military occupational specialty (MOS) 92Y (Unit Supply Specialist), a critical skill in the SDARNG, and assignment to Headquarters and Headquarters Battery (HHB), 147th Field Artillery (FA) Brigade, SDARNG. 

2.  In connection with this enlistment, she completed Annex E (Non-Prior Service Enlistment Bonus Addendum) and Annex L (SLRP Addendum - ARNG).

3.  Annex E promised her a $20,000.00 enlistment bonus for enlisting in a critical MOS.  She indicated or understood:

* she was a non-prior service applicant, enlisting for 6 years in the ARNG, in MOS 92, with assignment to HHB, 147th FA for 6 years
* she was not enlisting for an AGR (under Title 10 or Title 32) tour nor was she enlisting for a technician position
* her bonus eligibility would be terminated with recoupment if she accepts a military technician position and on the effective date of her orders has not served at least 6 months of the incentive contract term, or without recoupment if has served at least 6 months of the incentive contract term
* her bonus eligibility would be terminated with recoupment if she accepted a Title 10 or Title 32 AGR tour and on the effective date of her orders had not served at least 6 months of the incentive contract term or without recoupment if has served at least 6 months of the incentive contract term
* her bonus eligibility would be terminated if she voluntarily transferred into a non-critical skill MOS or transfer from the unit for which the bonus was awrded upon enlistment

4.  Annex L explained the obligation and participation requirements for entitlement under the SLRP.  She indicated or understood: 

* she was a non-prior service applicant, enlisting for 6 years in the ARNG, in MOS 92Y with assignment to HHB, 147th FA for 6 years
* she was not enlisting for an AGR (under Title 10 or Title 32) tour nor was she enlisting for a technician position
* she had two loans in the amount of $14,354.21 and the total amount of qualifying loans would not exceed $20,000
* her SLRP eligibility would be terminated if she voluntarily transferred out of her MOS or SLRP eligible unit or if she accepted a military technician position or accepted a Title 10 or Title 32 AGR tour

5.  She entered active duty for training (ADT) on 4 April 2007 and successfully completed training for MOS 92Y.  She was released from ADT on 22 August 2007 to the control of her ARNG unit. 
 
6.  On 31 October 2007, she was transferred to the 196th Combat Support Brigade (Maneuver Enhancement), SDARNG, by reason of unit inactivation, reorganization, or relocation. 

7.  Her records do not contain orders ordering her to active duty; however, her records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that show she entered active duty on 1 February 2009.  The case analyst of record contacted the unit in an effort to obtain her active duty orders for this period but the unit could not locate such orders.

8.  On 4 October 2009, the SDARNG published Orders 277-801 ordering her to active duty in the AGR program, under Title 32, for a period of 3 years, beginning on 1 October 2009 and ending on 30 September 2012.  

9.  She attended and successfully completed the Human Resources (HR) Information Systems Management Specialist Course from 19 October through 8 December 2009. 

10.  On 9 November 2009, the SDARNG published Orders 313-467 awarding her primary MOS (PMOS) 42F (HR Information Systems Management Specialist) and secondary (SMOS) 92Y. 

11.  On 8 April 2010, the SDARNG published Orders 098-819 amending Orders 277-801, to show her period of active duty from "1 October 2009 to 30 September 2012" to "1 October 2009 to 6 May 2010."

12.  She was honorably released from active duty on 6 May 2010.  Her DD Form 214 shows she completed 1 year, 3 months, and 6 days of active service.  

13.  On 13 January 2010, the SDARNG published Orders 013-001 ordering her to active duty in support of Operation Enduring Freedom, under Title 10, for a period not to exceed 400 days, beginning on or about 7 May 2010. 

14.  She entered active duty on 7 May 2010 and subsequently served in Afghanistan, in MOS 42F, from 11 June 2010 to 28 April 2011.  She was honorably released from active duty on 6 May 2011.  

15.  On 10 May 2011, the SDARNG published Orders 130-178 ordering her to active duty in the AGR program, under Title 32, for a period of 1 year, 4 months, and 24 days, beginning on or about 7 May 2010 and ending on 30 September 2012, to serve as the HR Information System Management Specialist, 196th Maneuver Enhancement Brigade. 

16.  It is unclear what date she entered or was released from active duty as her records do not contain a DD Form 214 for this period of active service.  The case analyst of record contacted her unit and they indicated she is still on active duty.

17.  On 30 September 2011, the SDARNG published Orders 313-512 awarding her PMOS 42A (HR Specialist) and SMOS 92Y, effective 30 September 2011. 

18.  On 8 March 2012, she executed a 1-year extension of her initial enlistment in the ARNG. 

19.  On 29 June 2012, the SDARNG published Orders 181-701 ordering her to active duty in the AGR program, under Title 32, for a period of 1 year, 3 months, and 18 days, beginning on or about 1 October 2012 and ending on 18 January 2013, to serve as the Administrative Noncommissioned Officer of the 196th Maneuver Enhancement Brigade. 

20.  On 23 January 2013, she executed a 2-year extension of her initial enlistment in the SDARNG. 

21.  On 14 February 2013, she submitted a request to the SDARNG requesting, as an ETP, that she be allowed to retain her eligibility for the SLRP incentive for her qualifying federal loans per the SLRP contract she signed on 19 January 2007 to the end of the contractually obligated period designated on her SLRP contract.  She stated that upon being hired in an AGR position on 1 October 2009, she was informed that she would retain her SLRP incentive for the duration of the obligated period.  

22.  On 12 July 2013, the NGB denied her request.  An NGB official advised her that she became AGR during her contracted period of service which is in violation of the ARNG SRIP Policy Memorandum Number 07-04.  The NGB official also instructed the State IM to terminate the incentive with recoupment effective the date of accession. 

23.  NGB Policy Memorandum 07-04, dated 1 January 2007, established policy to administer the ARNG invectives program.  It applies to ARNG Soldiers in 
M-Day status.  It states the SLRP incentive is offered by the ARNG as an enlistment incentive for all non-prior service enlistees.  MOS 92Y is identified as a critical skill in the SDARNG and is authorized the incentive.  An incentive is terminated with recoupment when a member accepts an AGR or military technician position and the member has not served at least 6 months of the incentive term.  It also states an incentive is terminated without recoupment when the member accepts an AGR or a military technician position and the member has served at least 6 months of the incentive contract term. 

24.  NGB-EDU 09-058, dated 14 September 2009, clarified the continuation of SLRP benefits upon accepting an AGR and/or a military technician position.  It states Soldiers ordered to active duty in the State (Title 32) AGR program will be entitled to SLRP payments as long as they are serving under their initial contract and/or agreement for which the SLRP was awarded, "pending service member has received first anniversary payment and has remained in good standing.  

25.  NGB EDU 1.1, dated 1 October 2009, establishes standards, policies, and procedures for the management of ARNG Chaplain, Health Professionals and the Enlisted SLRP.  

26.  NGB Policy Memorandum 12-021, dated 20 July 2012, Subject: Termination of Incentive Contracts for AGR and Military Technician Personnel reiterated the termination of eligibility for incentives upon acceptance of a military technician or AGR position and clarifies disposition of contracts executed after 8 October 2008.  It states incentive payments made for service performed after the contract termination date are not authorized and are subject to recoupment.  This includes payments to AGR and military technician personnel made between 9 October 2008 and 3 November 2010 through a misrepresentation of authority published in sub-paragraphs 1d through 1g of this message.  The ARNG does not have the authority to make these payments and previous payments were erroneous.  All recoupment will be initiated within 30 days of the publication of this message.  

27.  NGB Policy Memorandum 13-003, dated 14 March 2013, rescinded, effective the date of this message, EIOM-EDU-09-058, dated 14 September 2009; EIOM 12-021, dated 20 July 2012, Subject: Termination of Incentives Contracts for AGR and Military Technician Personnel; and EIOM 12-022, dated 27 July 2012, Subject: Updated Guidance for Termination of Incentives Contracts for AGR and Military Technician Personnel EIOM 12-022.  This message ordered ARNG Personnel Programs, Resources and manpower staff of all states to identify all SLRP contracts and those Soldiers accepted in an AGR or Military Technician position between 18 April 2009 and 3 November 2010.  These personnel, if eligible for ETPO consideration, will be processed for an ETP according to established standards. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the SDARNG on 19 January 2007 for a period of 
6 years, for the critical skill of 92Y and she was assignment to HHB, 147th FA Brigade.  She agreed to serve a 6-year term in this MOS and this unit.  In exchange, she was authorized a bonus incentive as well as the SLRP incentive.  The SLRP incentive stated she had two loans in the amount of $14,354.21. 

2.  Her SLRP addendum also stated her SLRP eligibility would be terminated if she voluntarily transferred out of her MOS or SLRP eligible unit and/or accepted a Title 32 military technician position or accepted a Title 10 or Title 32 AGR tour. 

3.  Her records contain a DD Form 214 that shows she entered active duty on 1 February 2009, presumably in an AGR position under Title 32.  Additionally, on 4 October 2009, the SDARNG published orders ordering her to active duty in the AGR program, under Title 32, from 1 October 2009 to 6 May 2010.  Furthermore, she attended and successfully completed the HR Information Systems Management Specialist Course from 19 October through 8 December 2009 and she was awarded MOS 42F on 9 November 2009.  She was also transferred to a different unit, other than the one she contracted for.

4.  Several policy memoranda and/or changes to payments of enlistment incentives were published throughout the years since her enlistment.  Some of the policy memoranda she referenced (NGB EDU 1.1, CHELRP) are not applicable to her case while others address the recoupment action.  

5.  The fact that she became AGR is not the only reason she is no longer authorized the SLRP.

6.  The key issues in her case are that she became AGR in February 2009, changed her critical MOS from 92Y to 42F in November 2009, and changed her unit, all during the contracted period which was in violation of ARNG SRIP 07-04 and her contract.  As a result, termination of the SLRP incentive with recoupment action is warranted.  

7.  The applicant did not show an error or an injustice.  As such, there is insufficient evidence to grant her relief in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20130016655



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ABCMR Record of Proceedings (cont)                                         AR20130016655



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