IN THE CASE OF:	  

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130019789 


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 (ETP) to retain eligibility for the Student Loan Repayment Program (SLRP) incentive written in her enlistment contract.

2.  The applicant states:

* her enlistment contract outlined that the SLRP would be revoked if she took a new duty assignment as a technician or an Active Guard Reserve (AGR) position
* the National Guard Bureau (NGB) published Education and Incentives Operational Message (EIOM) 13-003 to provide instructions for ETP requests for Army National Guard (ARNG) Soldiers who contracted for the SLRP and then accepted either an AGR or military technician (MilTech) position between 9 October 2008 and 2 November 2010
* her request for an ETP was denied on the basis that she became a MilTech after the contracted start date which violates ARNG Selected Reserve Incentive Policy (SRIP) 07-06
* the dates in SRIP 07-06 are not the dates stipulated in EIOM 13-003
* she became a MilTech in September 2009
* she believes the reviewer of her ETP request rushed through the process and missed the dates outlined in paragraph 5b of EIOM 13-003

3.  The applicant provides:

* EIOM 13-003, dated 14 March 2013
* self-authored statements
* ETP Request Letter, dated 8 July 2013
* ETP Request Denial Memorandum, dated 16 October 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Ohio ARNG (OHARNG) on 12 May 2008 for an 8-year period.

2.  In conjunction with her enlistment in the OHARNG, she executed, in part:

* Annex E (Non-Prior Service Enlistment Bonus Addendum) for a $20,000 bonus and training in military occupational specialty (MOS) 92Y (Unit Supply Specialist)
* Annex L (SLRP Addendum) for student loans not to exceed $20,000 and assignment to the Headquarters, 237th Personnel Services Company, Unit Identification Code YF4AA for a 6-year period

3.  Her Annex L shows she acknowledged she had two existing student loans in the amount of $20,000 and termination without recoupment would occur if she:

* became an unsatisfactory participant
* voluntarily transferred out of her contracted MOS
* exceeded maximum time in the Inactive National Guard
* accepted a MilTech position, Title 10, or Title 32 AGR tour
* separated from the ARNG for any reason
* reached the maximum allowable for repayment
* reached the end of her contractual obligation
* failed to become MOS qualified within 24 months after unit inactivation, reorganization, or relocation
* became a contracted Simultaneous Membership Program Member Reserve Officers Training Corps (ROTC) cadet or received an ROTC scholarship

4.  In April 2009, the applicant completed MOS 92Y training.

5.  Orders Number 147-901, issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 27 May 2009, shows effective 28 May 2009, the applicant's MOS of 92Y was withdrawn and she was awarded MOS 09S (Special Reporting Code) to receive training for an appointment to second lieutenant.


6.  Orders Number 296-010, issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 22 October 2008, transferred the applicant to Detachment 1, Headquarters and Headquarters Company, 371st Sustainment Brigade with attachment to the 147th Regiment (Regional Training Institute (RTI)) effective 28 May 2009.

7.  Orders Number 201-906, issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 20 July 2009, released the applicant from Detachment 1, Headquarters and Headquarters Company, 371st Sustainment Brigade, effective 20 July 2009.

8.  Orders Number 204-066, issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 23 July 2009, shows:

* the applicant was released from the 147th RTI effective 20 July 2009 because she did not complete Officer Candidate School (OCS)
* MOS 09S was withdrawn and she was awarded MOS 92Y

9.  Orders Number 286-008, issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 13 October 2009, show the applicant was ordered to full-time National Guard duty, with her consent and the Governor of Ohio, in an AGR status, for a 3-year period beginning 16 October 2009 and ending 15 October 2012.  These orders also show this was her initial AGR tour.

10.  On 16 May 2013, the applicant provided self-authored statements to accompany an ETP request.  She stated:

* on 20 July 2012, EIOM 12-021 was released and it rescinded EIOM 
09-058
* on 31 October 2009, she began a permanent MilTech position; therefore, she falls under the guidelines of paragraph 5b of EIOM 13-003
* EIOM 13-003 affords her the opportunity to submit an ETP request to continue receiving payments toward any loans until the end of her original contract and not have the amounts previously paid recouped

11.  Her NGB Form 22 (National Guard Report of Separation and Record of Service) shows that on 15 June 2013, the applicant was honorably discharged from the ARNG to accept an appointment as a commissioned or warrant officer.  On the same date, she graduated from OCS.

12.  Orders Number 175-958, issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 24 June 2013, show:

* the applicant was appointed as a second lieutenant (2LT) in the ARNG effective 16 June 2013
* her basic branch as Quartermaster Corps
* her duty assignment as Platoon Leader, Company E, 1st Battalion, 137th Aviation Regiment (Assault), Columbus, OH

13.  On 8 July 2013, an ETP request was submitted on behalf of the applicant.  The request states, in part, that when the applicant enlisted into the OHARNG on 12 May 2008, an administrative error occurred.  The applicant accepted an AGR position on 16 October 2009 and it should be noted that upon her commissioning, she resigned from her AGR position.

14.  A memorandum signed by the Personnel Branch Chief, State of Ohio, Adjutant General's Department Columbus, OH, dated 1 November 2013, designated the applicant's primary area of concentration (AOC) as 92A effective 19 October 2013.

15.  On 16 October 2013, the Deputy G1, ARNG, NGB, Arlington, VA, denied the ETP request for retention of the applicant's SLRP and directed the State Incentive Manager to terminate the incentive on the effective date of her MilTech (AGR) status.  He also stated any anniversary payment after the date of termination would be forfeited and any amounts over paid (paid for any service performed after termination date) would be recouped.  Her ETP request was denied for the following:

* the applicant became a MilTech after the contract start date which violated SRIP 07-06
* she contracted for MOS 92Y and currently holds AOC 91A

16.  NGB Special Orders Number 31 AR, dated 7 February 2014, shows the applicant was given Federal recognition for her initial appointment as a second lieutenant (2LT) effective 16 June 2013.

17.  ARNG SRIP Policy Number 07-06, dated 10 August 2007, states in paragraph 14 that if an entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments except for payments of service performed before the termination date.  There is also no provision for the proration of any recoupment action.



18.  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 MilTech 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.  Recoupment was to be initiated within 30 days of the publication of this message.  

19.  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 MilTech position between 18 April 2009 and 3 November 2010.  These personnel, if eligible for ETP consideration, were to be processed for an ETP according to established standards. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the OHARNG on 12 May 2008 for a period of 
6 years for the critical skill of 92Y with assignment to Headquarters, 237th Personnel Services Company.  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 $20,000. 

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 MilTech position or a Title 10 or Title 32 AGR tour. 

3.  On 13 October 2009, the State of Ohio, Adjutant General's Department, published orders ordering her to active duty in the AGR program, under Title 32, from 16 October 2009 to 15 October 2012.  Furthermore, 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 have been published throughout the years since she enlisted.  EIOM
13-003 does apply to her in that an ETP will be processed.  This policy memorandum does not indicate that an ETP will automatically be granted. 

5.  The key issues in her case are that she entered an AGR status in October 2009 and changed her unit of assignment all during the contracted period which was in violation of ARNG SRIP 07-06 and her contract.  As a result, termination of the SLRP incentive with recoupment action is warranted.  

6.  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)                                         AR20130019789



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ABCMR Record of Proceedings (cont)                                         AR20130019789



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