BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140000470 


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 waiver from recoupment on his Reenlistment Bonus (REB), Officer Accession Bonus (OAB), and Student Loan Repayment Program (SLRP).

2.  The applicant states he made a valid contract with the Government to receive all three incentives.  He fulfilled his obligation for those incentives and to recoup them six years after the fact is unjust and contrary to good conscience.

3.  The applicant provides copies of his 2006 enlistment contracts, 2007 Officer Accession Bonus Addendum, 3 student loan statements, and an 8 November 2012 Notification of Termination/Recoupment of Incentives. 

CONSIDERATION OF EVIDENCE:

1.  On 12 February 2000, the applicant enlisted in the California Army National Guard (CAARNG) with a contracted period of 6 years in a paid drill status.  His enlistment contract included an $8,000 enlistment bonus.  He acknowledged that he would be terminated from bonus eligibility, without recoupment, if he accepted a commission as an officer or appointment as a warrant officer.

2.  The applicant reenlisted on 7 March 2006.  This contract included a $15,000.00 Reenlistment Bonus (REB) and an SLRP agreement.  



3.  The SLRP addendum specifies that the SLRP would be terminated if the Soldier voluntarily transferred out of his contracted MOS prior to completion of the third anniversary, transfer out of an SLRP-eligible unit, and/or if he accepted a commission as an officer or an appointment as a warrant officer.

4.  The REB addendum specifies that the REB would be terminated if the Soldier accepted a commission.  If he accepted a commission after having served one year or more of Selected Reserve service no recoupment would be made.

5.  On 7 August 2007, the applicant signed an OAB for $10,000.00 and was commissioned a second lieutenant on 1 October 2007.

6.  There is no evidence that the CAARNG took any action to terminate the applicant's SLRP payments concurrent with his commissioning.

7.  On 8 November 2012, the applicant was notified that a review of his records indicated he had improperly received payment for an REB, OAB, and SLRP incentives creating an indebtedness of $37,536.40. 

8.  An advisory opinion was obtained from the Chief, Officer Division, Office of the Deputy Chief Of Staff, G-1 recommending partial relief.  It was noted that:

   a.  The applicant was commissioned in an eligible area of concentration (AOC) and otherwise qualified for the OAB.  

   b.  He had an SLRP agreement in effect at the time of his commissioning.  

   c.  Section V (Termination), item 10, of the SLRP Addendum specifies a Soldier's eligibility for SLRP will be terminated if the Soldier accepts a commission as an officer.  A unique aspect of eligibility for SLRP is that the obligated period of service (in one year increments) must be completed prior to payments being made to the lending institution(s).  
   
   d.  National Guard Bureau records indicate SLRP payments were made in the amount of $7,579.10 prior to his commissioning and $5,100.00 after his commissioning. 
   
   e.  The obligated periods for the last two payments (1 May 2008 and 25 August 2009 in the amount of $2,550.00 each) were for service completed after the applicant was commissioned. 
   
   f.  His eligibility for SLRP funds terminated on his commissioning date and he should not have received the two $2,550.00 payments.  
   g.  However, it appears no action was taken by the responsible CAARNG officials to terminate his SLRP eligibility concurrent with his commissioning.
   
   h.  It was recommended:

      (1)  approval of the applicant's request for relief of recoupment of the REB in the amount $15,000.00, recoupment of the $10,000.00 OAB, and recoupment of the $7,579.10 SLRP funds received prior to his commissioning date; and
   
      (2)  disapproval of his request for waiver of recoupment of $5,100.00 SLRP funds received after his commissioning date. 
      
9.  A copy of the advisory opinion was forwarded to the applicant.  He concurred with the approval recommendations but disagreed with the denial of the full SLRP entitlement.  He states he was never made aware that accepting his commission would terminate the SLRP.  It is inequitable to have him repay the SLRP funds received because he relied on the CAARNG to properly advise him of his entitlements and it was their failure that caused the error.  

10.  Eligibility requirements for the OAB provide that newly-commissioned officers or newly-appointed warrant officers who serve in a traditional status in the ARNG qualify to receive up to $10,000.  The OAB incentive is a lump-sum payment processed upon completion of the Basic Officer Leaders Course or Warrant Officer Basic Course.  A service member may not receive both an enlisted incentive and the OAB simultaneously and may not receive SLRP benefits during the period of service for which they are contracted for an OAB.

11.  Department of Defense Instruction 1205.21 prescribes policy, assigns responsibilities, and prescribes procedures for management of the Reserve Component incentive programs.  

   a.  As a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped.  That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member.  
   
   b.  If 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 for service performed before the termination date.  
   c.  Recoupment of enlistment, reenlistment, and affiliation bonuses will be affected for a member who separates from Selected Reserve as an enlisted person for any reason (including enlistment or voluntary recall into the active forces) other than by death or to accept an immediate appointment as an officer in the Ready Reserve (in which case, recoupment is required if less than 1 year of the term has been served).
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant completed valid contracts for receipt of an REB and payment under the SLRP, and when he was commissioned he received an OAB.  

2.  The CAARNG failed to properly terminate the SLRP when he was commissioned.

3.  However, the addenda for all three incentives the applicant signed included termination and recoupment provisions if certain actions occurred including receipt of a commission.  

4.  The applicant met the requirements for receipt of both the REB and the OAB based on his contracted agreements.  Because he had served in an enlisted status for over a year recoupment of the REB is not appropriate.  

5.  The applicant met all requirements for receipt of the SLRP at the time he signed that addendum and for the OAB at the time he signed that addendum.  However, he is not entitled to receive both an OAB and the SLRP concurrently.  

6.  It is appropriate to waive any recoupment of SLRP for the period prior to the applicant's commissioning and waive any recoupment of the OAB.  

7.  Although the CAARNG did not properly terminate the SLRP payments when he was commissioned, the fact that the termination of the SLRP was spelled out in his enlisted SLRP contract does not relieve the applicant of the responsibility of ensuring he was entitled to continue to receive this incentive.

8.  Implicit in the Army's personnel system is the universally accepted principle that officers have a responsibility for their own careers.  Therefore, a waiver of the SLRP benefits received after his date of commissioning should be denied.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and ARNG records of the individual concerned be corrected by:

   a.  showing the ARNG determined that the applicant was entitled to his entire $15,000.00 REB, entire $10,000.00 OAB, and that portion of his SLRP funds received prior to his commissioning date ($7,579.10); and 
   
   b.  the ARNG directed that only that portion of his SLRP ($5,100.00) paid after he was commissioned be recouped.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to waiver of recoupment of SLRP funds received after his commissioning date in the amount of $5,100.00.



      _______ _   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)                                         AR20140000470



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ABCMR Record of Proceedings (cont)                                         AR20140000470



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