IN THE CASE OF

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130019966 


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, correction of his records to show he was approved for the contracted amount of $10,000.00 in accordance with the terms of his Student Loan Repayment Program (SLRP) Addendum.

2.  The applicant states:

* on 20 September 2001, he enlisted in the California Army National Guard (CAARNG) and signed an SLRP Addendum
* he attended Officer Candidate School (OCS) and on 21 August 2004 he accepted a commission as an officer
* although he was eligible for the SLRP incentive, an audit by the Incentive Task Force (ITF) found his SLRP Addendum insufficient, missing a specified military occupational specialty (MOS), a date for his signature, and a service representative signature
* he relied on his recruiter and agreed to serve a 6-year commitment
* he would not have considered enlisting if it had not been for the SLRP and he fulfilled his end of the contract
* he realized he was eligible for an Officer Accession Bonus (OAB), but he sacrificed this bonus for the SLRP incentive
* he has been receiving SLRP payments for the past 11 years and reasonably believed he was fully qualified and entitled to the incentive
* the recoupment would cause a disturbing financial strain on his family as it was unexpected and unplanned
* he acknowledges the SLRP incentive was limited to $10,000.00 and requests relief of recoupment up to that amount
3.  The applicant provides:

* self-authored statements
* two memoranda from the ITF Commander, CAARNG, dated 1 August and 13 August 2013
* ITF Loan Repayment Audit Form
* memorandum from the CAARNG Judge Advocate, dated 10 September 2013
* DD Form 4 (Enlistment/Reenlistment Document)
* Annex S to DD Form 4 – SLRP Addendum – Army National Guard (ARNG) of the United States
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 March 2002
* Orders 90-1067 issued by Office of the Adjutant General, CAARNG, Sacramento, CA, dated 31 March 2003
* Orders 231-1069 issued by the Joint Forces Headquarters, CAARNG, Sacramento, CA, dated 19 August 2004
* Orders 300-1037 issued by the Joint Forces Headquarters, CAARNG, Sacramento, CA, dated 26 October 2004
* Loan Verification Form
* Universal Data Form
* Federal Perkins Loan Promissory Note
* Bank of America Federal Student Loan Disbursement Notice
* pay vouchers 

CONSIDERATION OF EVIDENCE:

1.  The applicant is presently serving in the CAARNG in the rank of captain (CPT).

2.  On 20 September 2001, the applicant enlisted in the CAARNG for an 8-year period for MOS 19D (Cavalry Scout) or 11M (Mechanized Infantryman).

3.  In connection with his enlistment, he executed an Annex S for student loans not to exceed $10,000.00.

4.  His Annex S shows he indicated he had two existing loans in the amount of $18,500.00 and he acknowledged the total amount of repayment for qualifying loans would not exceed $10,000.00 plus accrued interest.  He also acknowledged:

	a.  He was enlisting for a term of service of at least 6 years in the ARNG of the United States with a concurrent contractual and statutory military service obligation of 8 years.

	b.  Loans eligible for the SLRP were Stafford Loans subsidized and unsubsidized, Federally Insured Student Loans, Perkins Loans, Auxillary Loans to Assist Students, Supplemental Loans for Students, Consolidated Loan Program, and William D. Ford Federal Direct Loan Program.  State Student Loans and Plus Loans were not authorized for payment.

	c.  The portion that would be repaid annually on any qualifying loans would not exceed 15 percent (not to exceed $1,500.00 per year) of the total of all loans or $500.00, whichever was greater plus accrued interest.

	d.  His SLRP eligibility would be terminated if he voluntarily transferred out of his contracted MOS and/or SLRP eligible unit, separated from the ARNG for any reason, reach the end of his 6 or 8-year contractual obligation, or accepted a commission as an officer or an appointment as a warrant officer.

5.  His Annex S is undated, does not have the certifying official's signature and date, and does not contain an SLRP control number.  An SLRP Control Number Request document shows the control number SLRP0109-XXX was assigned to the applicant.

6.  On 20 August 2004, the applicant was honorably discharged to accept an appointment as a commissioned officer.  He executed the oaths of office on 21 August 2004.  On 12 July 2010 he was promoted to CPT.

7.  On 13 August 2013, the ITF Commander, Headquarters, CAARNG, provided a memorandum to the Army Board for Correction of Military Records (ABCMR) on behalf of the applicant.  This individual stated, in part:

	a.  The applicant was eligible to contract for the SLRP; however, his SLRP addendum was incomplete and, therefore, invalid.  There is no evidence of fraud on the part of the applicant.

	b.  He enlisted for a 6-year period in MOS 11M in a valid position vacancy and then trained and became qualified as an 11B (Infantryman) in March 2002.  However, his SLRP addendum does not reflect his MOS and is missing his signature and date and the service representative's signature.

	c.  At the time of his enlistment, he had $4,000.00 in eligible Federal loans.  Had he been eligible, he would have established eligibility for six annual payments of $600.00 for a total of $3,600.00 through the end of his contracted term.  Nevertheless, he received the following payments totaling $10,500.00:

* $1,500.00 on 19 September 2002 (applied to Fiscal Year 2002 (FY02))
* $1,500.00 on 14 August 2003 (applied to FY01)
* $1,500.00 on 8 November 2003 (applied to FY03)
* $1,500.00 on 15 November 2004 (applied to FY04)
* $3,000.00 on 15 February 2006 (applied to FY04 and FY05)
* $1,500.00 on 14 February 2007 (applied on FY06)

	d.  The applicant was paid above the maximum annual amount he was entitled to ($600.00) and well above the $3,600.00 maximum amount through the life of the contract (6 x $600.00) he was entitled to.

	e.  If the requested changes are made to reflect a complete SLRP addendum rendering him fully eligible for the incentive, the applicant requests relief from recoupment of the amount of SLRP funds received above the program limit.  If the SLRP Addendum is not corrected, the Soldier requests relief from recoupment of the entire $10,500.00 incentive received.

8.  On 10 September 2013, the Staff Judge Advocate, CAARNG, provided a memorandum on behalf of the applicant to the ABCMR.  This official recommended the applicant be permitted to retain $10,000.00 for his SLRP incentive.  He stated it was worth noting that neither the audit nor the ITF memorandum cited any fraud or wrongdoing on the part of the applicant.  He further stated:

	a.  The addendum itself, marked in a handwritten "Annex C," includes all the pertinent information as to the SLRP and shows the applicant's initials throughout and his signature of understanding and acceptance on the final page.  His DD Form 4 includes mention of Annex C.  This form and its accompanying annexes are then certified by a service representative.  This should at least ratify the terms of the prior SLRP addendum, despite its lack of a service representative's signature and date. 

	b.  The applicant held $18,500.00 in student loans and had no reason to believe the payments would not be based on the total amount of his student loans and he reasonably relied upon the amount in the addendum and his recruiter and the subject matter expert.  In a prior ABCMR case, AR20110016526, the Board permitted private loans to be paid as though eligible for the SLRP.  If the $18,500.00 was used as the base in calculating the SLRP, the appropriate disbursement would be the maximum $1,500.00.

	c.  The applicant was in no position of control or authority over the incentives or the monetary disbursements.  The proximate cause of the $10,500.00 paid to the applicant without proper procedure is misrepresentation or negligence of the recruiter and, in turn, the incentives manager for approval and excessive payment.  The $500.00 in excess of the contract was not reasonably expected and is not being sought by the applicant.

9.  On 13 August 2013, the ITF Commander advised the applicant that an audit of his non-prior service bonus and SLRP had been completed and discrepancies had been noted; however, supporting documentation and his assistance was required to resolve the discrepancies.  He was also advised that recoupment in the amount of $15,500.00 for payments made in violation of Army regulation, Department of Defense (DOD) policy, and Federal law were going to be initiated and he may be eligible for an exception to policy.

10.  The Chief, Personnel Policy Division, NGB, provided an undated advisory opinion wherein he stated:

	a.  The ITF recommended recoupment because of discrepancies in the addendum.  The addendum was missing information that pertained to the requirements for eligibility.  The missing items were the specified MOS, the date on which it was signed, and a service representative signature.  However, the addendum includes all required annexes about the SLRP contract and shows the applicant's initials throughout and his signature of understanding and acceptance on the final page.  His DD Form 4 and annexes were certified by a service representative in box 14 of his DD Form 4 on 20 September 2001.  The applicant enlisted in a valid MOS at the time to receive the SLRP.

	b.  His contract indicated he had two eligible loans in the amount of $18,500.00.  The ITF findings were that at the time of the applicant's enlistment, he had $4,000.00 in eligible Federal loans.  According to the incentives oversight branch at NGB, his eligibility should have been for six annual payments of $600.00 for a total of $3,600.00 through the end of his contracted term of service.  He received a total of $10,500.00 per the terms of his contract.

	c.  The ITF did not find any evidence of fraud on the part of the applicant.  He did not have the knowledge, skill, or ability to know how much of his student loans were eligible for repayment.  He had no reason to believe the payments would not be based on the total amount of his student loans and reasonably relied upon his recruiter, the subject matter expert.  As a result of the misunderstanding or negligence of the recruiter in completing the addendum properly, the applicant entered into a contract obligating himself to 6 years of service with the incentive of receiving the SLRP.
	d.  Although the contract amount was $6,900.00 in excess of what should have been paid, the Government entered into the contract.  The DOD modified the policy guidance on repayment of bonuses and educational benefits in a memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Stipends.

	e.  The CCAARNG concurred with the above recommendation.

11.  An email from the ITF Commander, dated 1 November 2013, shows a $10,500.00 debt was established with the Defense Finance and Accounting Service; however, the debt was suspended pending the ABCMR decision.

12.  On 13 November 2013, a copy of the advisory opinion was provided to the applicant for response.

13.  On 14 November 2014, the applicant provided the following response:

* he concurs with the recommendation to pay back $,6,900.00 and to have $3,600.00 forgiven
* the collection of the $6,900.00 should be evenly divided across the next 19 years until he reaches his mandatory removal date from the Army
* his collection timeline request is fair considering that he would have requested to stop receiving student loan payments in 2004 when he was presented with the opportunity to receive an OAB
* he chose to continue receiving his student loan payments because he was told he could not receive the OAB as he was continuing to receive student loan repayments

14.  The applicant provided copies of his ITF Loan Repayment Audit Form and related documents.  He also provided extracts of student loan disbursement notices and military pay vouchers.

15.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for administration of the ARNG and the U.S. Army Reserve (USAR) incentive programs.  Chapter 5 authorizes student loan repayment for qualified Selected Reserve (SELRES) enlisted personnel.  This incentive is offered to qualifying non-prior, prior, and in-service personnel upon signing a contractual agreement for a specified term of service in the Selected Reserve and executing an SLRP addendum.

	a.  The SLRP provides for the repayment by the Government of a designated portion of any outstanding student loan(s) secured after 1 October 1975.  The 
loan amount to be repaid is 15 percent of the original balance of the loan plus accrued interest not paid by the Department of Education, or $500.00 plus the accrued interest not paid by the Department of the Education, whichever is greater.  Payments will be made for each year of satisfactory service in the Selected Reserve.  The maximum amount of loans against which the 15 percent is computed will not exceed $10,000.00.  This equates to a maximum annual repayment of $1,500.00 plus interest.  If the amount set for repayment is less than $500.00, then $500.00 becomes the calculated amount for repayment that year.

	b.  To be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily, must serve in a Reserve unit for a full term of the contractual agreement and must further obligate himself or herself to continue to serve in the same component and the same MOS unless excused for the convenience of the Government.  Entitlement to the SLRP will stop if the Soldier is separated from the Selected Reserve.  Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan which is at least a year old may then be paid in accordance with the terms of this educational enlistment incentive.

16.  Title 10, U.S. Code (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."

17.  NGB memorandum, subject:  FY 04 Selected Reserve Incentive Program (SRIP) Policy Guidance for 1 April 2004 through 30 September 2004 (Policy 
04-03), dated 15 March 2004, stated, in part, "Soldiers eligible for incentives would retain eligibility while attending Officer Candidate School or Warrant Officer Candidate course up to the date of commissioning or appointment."

18.  DOD Financial Management Regulation 7000.14-R, Volume 7A, chapter 2, paragraph 020201, states when the conditions of a written agreement are not fulfilled, and repayment is determined appropriate, the member will be required to repay the United States the unearned portion of the pay or benefit received.

19.  All Army Activities Message 017/2005, dated 25 January 2005, subject:  Temporary Policy Message Providing Implementation Guidance for Use of New Selected Reserve Officer  Accession and Affiliation Bonuses (SELRES OAB's) Authorized by the Assistant Secretary of the Army for Manpower and Reserve Affairs as a Result of Ronald W. Reagan National Defense Authorization Act FY05, states SELRES OAB's (accession) shall be used to attract and retain qualified commissioned officers possessing or qualifying for training in critical skills, grades, and/or units designated by the Secretary of the Army as critical to meet manpower shortages in the ARNG of the United States and USAR.  The accession bonus shall apply to newly-appointed commissioned officers (2LT) who agree to serve in a SELRES unit of the component in which appointed.  To be eligible for the OAB, individuals must:  agree to accept an appointment as an officer in the ARNG or USAR and to serve in a designated critical area of concentration (AOC)/MOS in a SELRES unit for a period of not less than 6 years from date of appointment; possess an AOC/MOS designated by the Secretary of the Army for bonus entitlement or agree to accomplish the necessary training prescribed by the Secretary of the Army to achieve the designated critical AOC/MOS and fill a critical skill in the SELRES; not currently be receiving financial assistance under Title 10, USC, chapters 1608, 1609, 1611, 2107, or 2107a, or special pay under Title 37, USC, section 302g, and will not receive such assistance during the period of this agreement; and successfully complete an officer basic course in their designated AOC/MOS within 36 months of the date of appointment.

20.  Title 37, USC, section 308j (Special Pay:  Affiliation Bonus for Officers in the SELRES), states the Secretary concerned may pay an accession bonus to an eligible person who enters into an agreement to accept an appointment as an officer in the Armed Forces and to serve in the SELRES of the Ready Reserve in a skill designated (critical skill AOC/MOS) for a period specified in the agreement (OAB Addendum).  An agreement entered into with the Secretary concerned shall require the person entering into that agreement to serve in the SELRES for a specified period.  The period specified in the agreement shall be any period of not less than 3 years that the Secretary concerned determines appropriate to meet the needs of the Reserve Component in which the service is to be performed.  A person may not receive an affiliation bonus or accession bonus under this section and financial assistance under Title 10, chapter 1608, 1609, or 1611, or under section 302g of this title, for the same period of service.  A person who enters into an agreement under this section and receives all or part of the bonus under the agreement, but who does not accept a commission or an appointment as an officer or does not commence to participate or does not satisfactorily participate in the SELRES for the total period of service specified in the agreement, shall be subject to the repayment provisions of section 303a(e) of this title.

21.  Title 10, 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.

22.  DOD Financial Management Regulation 7000.14-R, volume 7A, chapter 56 (SELRES Accession, Affiliation, Enlistment, and Reenlistment Bonuses), states an accession bonus may be paid to an officer who enters into an agreement with the Secretary concerned to accept an appointment as an officer in the Armed Forces and to serve in the SELRES of the Ready Reserve in a designated skill for the period specified in the agreement.  An agreement entered into with the Secretary concerned under this paragraph will require the person entering into that agreement to serve in the SELRES for a specified period.  The period specified in the agreement will be any period of not less than 3 years that the Secretary concerned determines appropriate to meet the needs of the Reserve Component in which the service is to be performed.  Upon acceptance of a written agreement by the Secretary concerned, the total amount of the bonus payable under the agreement becomes fixed.  A person may not receive an affiliation bonus or accession bonus and financial assistance under Title 37, USC, section 302g, or Title 10, USC, chapter 1608, 1609, or 1611 for the same period of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had $18,500.00 worth of existing student loans and his contract stated student loan payments would not exceed $10,000.00.

2.  An audit determined he had only $4,000.00 worth of qualifying student loans.  A payment of $10,500.00 was paid to his lender(s) and this amount exceeded his contracted amount of $10,000.00.

3.  The applicant was commissioned on 21 August 2004 prior to fulfilling his enlisted contractual obligation for the SLRP.  Further, he continued to receive SLRP payments after his commissioning based on erroneous information provided by his incentives representative.

4.  Although he states he had the option to receive an OAB when he was commissioned, the OAB was not effective until 26 January 2005 and the amount was $6,000.00.  The CAARNG Judge Advocate argues that in a prior ABCMR case, Docket Number AR20110061526, the Board permitted private loans to be paid as though eligible for the SLRP.  However, in the prior case, the applicant fulfilled the terms of his contract and in the case under review, the applicant did not fulfill the terms of his contract, he exceeded the amount stipulated in his contract, and he received payments on unauthorized loans.  ABCMR cases do not set precedence and, therefore, the results of previous similar cases are not considered with individual applications.  The facts and evidence in this application are not identical to the facts and evidence considered in the previous ABCMR case.

5.  NGB and the ITF recommend forgiveness of $3,600.00.  Notwithstanding the advisory opinion, the Board acknowledges the Government accepted, filed, and made disbursements based on erroneous information.

6.  The lack of entry on the applicant's SLRP Addendum lends credence to the applicant's contention that the guidance counselor knew the loans were not eligible but assured the applicant that it could and would be paid anyway.  Making the required entry on the SLRP Addendum would have confirmed to the applicant that the loans were ineligible and would have risked his enlistment.  It appears the guidance counselor may have misled the applicant.  Any reasonable doubt concerning the circumstances surrounding the guidance counselor counseling the applicant on the eligibility of his student loans should be resolved in the applicant's favor.

7.  In interest of justice and equity, it would be appropriate to provide the applicant the full SLRP benefits outlined in his enlistment contract. 

8.  The applicant's military records should be corrected to show his SLRP Addendum was amended to include the statement, "If you enlist for the SLRP and the government fails to verify that you meet the eligibility criteria for entitlement to the SLRP, and such failure results in the erroneous payment of the loan, the ABCMR may correct the record to show payment was authorized in accordance with Title 10, USC, section 1552."  However, his records should be further corrected to show recoupment of $500.00 in overpayment is authorized.

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

   a.  amending his SLRP Addendum by adding the entry, "If you enlist for the SLRP and the government fails to verify that you meet the eligibility criteria for entitlement to the SLRP, and such failure results in the erroneous payment of the loan, the ABCMR may correct the record to show payment was authorized in accordance with Title 10, USC, section 1552," and

   b.  showing his established DFAS debt in the amount of $500.00 instead of $10,500.00 as a result of the above correction.



      _______ _ 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)                                         AR20130019966



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ABCMR Record of Proceedings (cont)                                         AR20130019966



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