IN THE CASE OF: 

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130021599 


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.  

2.  The applicant states:

	a.  She extended her enlistment in the New York Army National Guard (NYARNG) for a period of 6 years and she was authorized the SLRP incentive.  In 2009, the National Guard Bureau (NGB) published a policy (Education and Incentive Operations Message (EIOM)) stating if the member had previously signed for the SLRP and was later hired into the Active Guard Reserve (AGR) program the member would be eligible to keep the SLRP incentive.  

	b.  In the 2011/2012 timeframe, the NGB stated the above policy was not authorized to have been put out.  The NGB denied her request to maintain the incentive as an ETP and the incentive was terminated with recoupment.  She believes this is unjust because she fulfilled the obligation under the contract.  The NGB is the approving authority that allowed the payment in the first place.  It is unfair to put out a policy to 54 States and territories that authorizes the incentive and then turn around and terminate it with recoupment because someone followed that policy.   





3.  The applicant provides:

* Request for an ETP
* Denial of ETP
* NGB-EDU-09-058, Subject:  Clarification of Continuing SLRP Benefits Upon Acceptance of an AGR and/or Military Technician Position
* DD Form 4 (Enlistment/Reenlistment Document)
* Annex L to DD Form 4 (SLRP Addendum)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the NYARNG on 7 August 2002 and she held military occupational specialty (MOS) 42F (Human Resources Specialist).  

2.  She was mobilized on 24 May 2004 and served in Kuwait/Iraq from January to November 2005.  She was honorably released from active duty on 25 November 2005. 

3.  On 3 May 2008, she executed a 6-year extension of her enlistment in the ARNG.  In connection with this extension, she completed Annex R (Reenlistment/Extension Bonus Addendum) and Annex L (SLRP Addendum - ARNG).

4.  Annex R shows she was promised a $20,000.00 enlistment bonus since she was enlisting in a critical MOS.  She acknowledged or indicated she understood:

* she did not have more than 20 years of total military service and she was extending for 6 years for a non-critical unit
* she would receive a total bonus payment of $15,000 that would be paid in one lump sum payment 
* she was not enlisting for an AGR tour (under Title 10 or Title 32) nor was she enlisting for a technician position
* her bonus eligibility would be terminated without recoupment if she accepted a Military Technician (Mil Tech) position and on the effective date of her orders has served at least 6 months of the incentive contract term, or with recoupment if prior to serving 6 months of the incentive contract term
* her bonus eligibility would be terminated without recoupment if she accepts a Title 10 or Title 32 AGR tour and on the effective date of her orders has served at least 6 months of the incentive contract term or with recoupment if prior to serving 6 months of the incentive contract term

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

* she was currently in the ARNG and was extending for 6 years in the ARNG, in the non-critical MOS of 42F and non-critical unit (4th Personnel Service Detachment) that was authorized the SLRP incentive
* she was not enlisting for an AGR tour (under Title 10 or Title 32) nor was she enlisting for a technician position
* she had 3 loans in the amount of $20,000 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 contracted MOS or SLRP eligible unit or if she accepted a Mil Tech position or a Title 10 or Title 32 AGR tour

6.  She was promoted to sergeant on 15 May 2008.  She entered active duty on 26 January 2009 and she was honorably released from active duty on 15 September 2009. 

7.  On 15 September 2009, the NYARNG published Orders 258-162 ordering her to active duty in the AGR program, under Title 32, for a period of 3 years, beginning on 16 September 2009 and ending on 31 August 2012.  She was assigned to the Joint Force Headquarters, NYARNG, as the State Incentives Manager (IM).  She was also promoted to staff sergeant.

8.  On 3 June 2012, she submitted an ETP request to the NYARNG requesting to retain her eligibility for the SLRP payments of her qualifying federal loans per the SLRP contract she signed in May 2008 to the end of the contractually-obligated period designated on her SLRP contract.  She stated that upon acceptance of the AGR position she was informed that she would retain her SLRP incentive for the duration of the obligated period.  

9.  On 30 October 2013, the NGB denied her ETP request.  An NGB official advised her that she took an AGR position during her contracted period of service which is in violation of the ARNG Selected Reserve Incentive Program (SRIP) Policy Memorandum Number 07-04.  The NGB official also instructed the State IM to terminate the incentive effective the date she was ordered into the AGR program.  The official also stated any anniversary payment after the date of termination would be forfeited and any amount she was overpaid would be recouped. 

10.  On 8 November 2013, the Director of Military Personnel, NYARNG notified the applicant of the NGB's decision to deny her request for an ETP.  She was in violation of ARNG SRIP 07-06 (10 August 2007 to 28 February 2009) because she became an AGR member after the contract start date.  She was also notified the NGB has directed termination of the incentive with recoupment of any anniversary payments made after she became an AGR member.  

11.  NGB Policy Memorandum 07-04, dated 1 January 2007, established policy to administer the ARNG incentives 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.  An incentive is terminated with recoupment when a member accepts an AGR or Mil Tech 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 Mil Tech position and the member has served at least 6 months of the incentive contract term. 

12.  NGB-EDU 09-058, dated 14 September 2009, clarified the continuation of SLRP benefits upon accepting an AGR and/or a Mil Tech 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 remain serving under their initial contract and/or agreement for which SLRP is awarded "pending service member has received first anniversary payment and has remained in good standing."  

13.  NGB EDUI 1.1, dated 1 October 2009, establishes standards, policies, and procedures for the management of ARNG Chaplain, Health Professionals and Enlisted Student Loan Repayment Programs (CHELRP).  

14.  NGB Policy Memorandum 12-021, dated 20 July 2012, Subject: Termination of Incentive Contracts for AGR and Mil Tech Personnel reiterated the termination of eligibility for incentives upon acceptance of a Mil Tech 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 Mil Tech 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.  

15.  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 Mil Tech Personnel; and EIOM 12-022, dated 27 July 2012, Subject: Updated Guidance for Termination of Incentives Contracts for AGR and mil Tech 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 Mil Tech position between 18 April 2009 and 3 November 2010.  These personnel, if eligible for ETP consideration, will be processed for an ETP according to established standards. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be granted an ETP to retain the SLRP incentive.  

2.  The applicant extended her enlistment in the NYARNG on 3 May 2008 for a period of 6 years, for the non-critical skill of 42F and assignment to the non-critical unit, 4th Personnel Service Detachment of the NYARNG.  She agreed to serve a 6-year term in this MOS and this unit.  In exchange, she was authorized the bonus incentive as well as the SLRP incentive (although the bonus addenda indicated she was enlisting into a critical skill).  The SLRP incentive stated she had two loans in the amount of $20,000. 

3.  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 Mil Tech position or a Title 10 or Title 32 AGR tour. 

4.  Her records contain a DD Form 214 that shows she entered active duty on 26 February 2009 and she was honorably released from active duty on 15 September 2009.  She was assigned to the Joint Force Headquarters during this period.  Additionally, on 15 September 2009, the NYARNG published orders ordering her to active duty in the AGR program, under Title 32, from 16 September 2009 to 31 August 2012, also for assignment to the Joint Force Headquarters, NYARNG.   

5.  Several policy memoranda and/or changes to payments of enlistment incentives were published throughout the years since her enlistment or extension.  Some of the policy memoranda referenced (NGB EDUI 1.1, CHELRP) may not be applicable to her case while others address the recoupment action.  The key issue in her case is that she became an AGR program member after the contract date and changed her unit, both during the contracted period, which was in violation of ARNG SRIP 07-04.  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)                                         AR20130021599



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ABCMR Record of Proceedings (cont)                                         AR20130021599



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