BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130018623 


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 military records to show he was approved by the State Army National Guard (ARNG) to participate in the Student Loan Repayment Program (SLRP).

2.  The applicant states he signed up for the $20,000.00 SLRP in 2005.  A bonus control number was approved by the State ARNG 7 months later, but the addendum was never filed in his records.  Both occurrences reflect poor performance by the State ARNG and were not due to any fault on his part.  The National Guard Bureau (NGB) has denied the final payment of his SLRP and is pushing to recoup the $6,000.00 already paid.  The applicant contends that the State ARNG should recreate the addendum because the State ARNG lost it.  The State ARNG paid two of three payments before he attended Officer Candidate School.  This in itself demonstrates there was a valid government contract in existence between the Delaware ARNG (DEARNG) and himself.  Second, his officer accession bonus was terminated by NGB because he had an SLRP bonus.  If he is now ineligible for the SLRP, then his Officer Accession Bonus (OAB) addendum for $10,000.00 should be approved and processed.  He is currently serving in Afghanistan.  He finds it lazy that NGB did not properly investigate the circumstances that were outlined in his commander's exception to policy (ETP) regarding the OAB.

3.  The applicant provides copies of:

* Written Agreement – Officer/Warrant Officer Accession Bonus Addendum, dated 3 October 2009
* DEARNG memorandum, dated 5 April 2013, subject:  Request for ETP – (Applicant)
* Headquarters, U.S. Army Garrison, Fort Bliss, TX, Orders PL 149-0160, dated 29 May 2013
* NGB memorandum, dated 2 October 2013, subject:  Request for ETP for SLRP (Applicant)

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.  At the time of his application, the applicant was a first lieutenant in the DEARNG serving in Afghanistan.

3.  On 31 August 1996, the applicant enlisted in the DEARNG for a period of 4 years, 9 months, and 20 days.

4.  His DA Form 4836 (Reenlistment/Extension Bonus Addendum), dated 9 September 2005, shows the applicant extended his enlistment for a period of 6 years, establishing an expiration of term of service date of 9 December 2011.  This form shows the authority and reason for his extension as National Guard Regulation 600-200 (Enlisted Personnel Management), Table 7-1, Rule A.  A SLRP addendum is not available.

5.  The OAB Addendum, dated 3 October 2009, he provided shows he agreed to serve in the Selected Reserve in area of concentration (AOC) 25A (Signal Commissioned Officer), which was identified as a critical officer skill.  The agreement further stated this AOC was designated for bonus entitlement by the Secretary of Defense.  This agreement contains a bonus control number and indicates a bonus amount of $10,000.00.  The agreement was signed by the service representative, the applicant, and a witness, and dated by each on 3 October 2009.

6.  In a memorandum from the Commander, 198th Integrated Theater Signal Battalion, dated 5 April 2013, provided by the applicant, a request was submitted for an ETP for the applicant to receive his last remaining SLRP payment, regardless of a missing addendum.

	a.  The commander argues that the applicant had been told in good faith by the incentives manager that he would receive a payment annually for the duration of his reenlistment.  The commander contends that the applicant's SLRP was never filed in his Army Military Human Resource Record and that it was the incentives manager's responsibility to do so.  The applicant should not be penalized for this oversight.

	b.  The commander further states the applicant reenlisted on 9 September 2005.  The bonus control number was approved 7 months later on 7 April 2006.  The applicant had received two payments of $3,000.00 each prior to his commissioning as an officer.

	c.  The commander states the NGB Incentive Support Team at the ARNG Professional Education Center denied the applicant's OAB payment on 8 September 2011 because he has an active SLRP contract.  The DEARNG Incentives Manager notified the applicant of the termination of his OAB because of his active SLRP contract on 4 May 2012.

7.  In an NGB memorandum, dated 2 October 2013, subject:  subject:  Request for ETP for SLRP (Applicant), the ARNG Deputy G-1 responded to the ETP discussed in the previous paragraph as follows:

	a.  The ETP to retain the $20,000.00 SLRP was denied based on the following discrepancies:

* the applicant's incentive addendum could not be found which violated Department of Defense Instruction 1205.21
* the applicant's DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) lists Rule A which does not support an incentive being offered at the time of the agreement/contract
* the applicant's bonus control number was requested about 7 months after the date of reenlistment/extension which violated ARNG Selected Reserve Incentive Program Policy 05-02

	b.  The applicant's contract/agreement details:

* State enlisted as Delaware with a unit identification code of QJAAA
* date of agreement as 9 September 2005
* contracted loan addendum/agreement as $20,000.00
* contracted AOC as 25B – current AOC is 25A (conversion)

	c.  The applicant was informed that a claim could be filed with this Board if an error or injustice still exists.

8.  National Guard Regulation 600-200, Table 7-1, Rule A, in effect at the time the applicant executed his enlistment extension shows this rule applies to Soldiers with less than 10 years of service.  These Soldiers are eligible to extend for 1, 2, 3, 4, 5, or 6 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was approved by the State ARNG to participate in the SLRP.  In the alternative, the applicant requests approval of the OAB addendum.

2.  No documentary evidence has been provided by the applicant showing he contracted for an SLRP.  NGB denied the request based on a lack of supporting documentation showing the incentive was or should have been authorized.  NGB further indicates that Rule A cited as the authority for his extension did not support an incentive.  However, there appears to be no limitation under Rule A to support this determination.

3.  The available evidence clearly shows the applicant had a qualifying student loan and a control number was issued in connection with a student loan with a limit of $20,000.00.  Furthermore, he received two payments in the amount of $3,000.00 each prior to his commissioning as an officer.  He was also informed that he was not eligible to receive an OAB because he had an active SLRP contract.

4.  In view of the above, it is reasonable to presume the applicant had indeed completed an SLRP addendum when he enlisted and the addendum has simply been misfiled or lost through no fault of the applicant.

5.  Based on the foregoing, his records should be corrected to show his eligibility for the SLRP in accordance with the terms of his extension contract, dated 9 September 2005, and he should be issued a new annex/addendum to his contract for the SLRP that includes a completed and signed Loan Repayment Program Addendum.

6.  Additionally, all recoupment actions regarding the SLRP should be stopped and any monies previously recouped should be refunded to the applicant.
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:

	a.  issuing him a reconstructed annex/addendum to his extension contract, dated 9 September 2005, that includes a properly-completed and signed SLRP addendum authorizing payment of the incentive;

	b.  showing he is eligible for the SLRP in accordance with the terms of his extension contract, dated 9 September 2005, as a result of the above correction;

	c.  showing all necessary documents pertaining to his receipt of SLRP were completed in a timely manner;

	d.  cancelling any SLRP recoupment action and reimbursing him any monies previously recouped; and

	e.  paying the balance of his SLRP as specified in his extension contract/
annex from 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)                                         AR20130018623



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ABCMR Record of Proceedings (cont)                                         AR20130018623



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