IN THE CASE OF:	

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20140001780 


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 authorized a $10,000.00 Officer Accession Bonus (OAB) and $22,800.00 in loan payments under the Chaplain Loan Repayment Program (CLRP).

2.  He states:

* failure to sign an OAB addendum on or prior to his appointment required the recoupment of the incentive
* he was receiving loan repayment at the same time as the OAB making him ineligible for an OAB
* he was paid above the $20,000 CLRP program limit in the amount of $22,800 requiring the recoupment of the incentive
* he was paid without having a contract to substantiate eligibility for the CLRP received requiring recoupment of the incentive
* he was misled by Joint Force Headquarters (JFHQ) personnel to believe he was eligible for said incentives
* he assumed everything was in order as they directed him to submit the necessary paperwork.

3.  He states that after he was commissioned he was told he was contractually eligible for incentives and was put in contact with a civilian and noncommissioned officer to work on incentives.  They verified his eligibility for an OAB and CLRP.  The only paperwork he has from his communication with them is an OAB agreement and educational assistance form available in his Army Military Human Resource Record (AMHRR).  All of his email communication with them from 2007 to 2008 has long been deleted.  He became aware of the possible recoupment of these incentives when he was appointed as a battalion chaplain on 10 February 2012.  Upon appointment, the State support chaplain notified him of his eligibility to receive the OAB and his eligibility for the CLRP.  He informed the State support chaplain that he had previously received both incentives.  Upon further investigation, the State support chaplain became aware of the previous incentive issue.  He became aware of the possibility of recoupment of these incentives after he became eligible for the same incentives.  He accepted the incentives in good faith with the knowledge (from personnel at JFHQ) that he was eligible for said incentives.  He did not misrepresent himself, nor did he commit fraud in an attempt to receive these incentives.  He was misled by personnel at JFHQ to believe he was eligible and he followed the steps they gave him to receive said incentives.

4.  He provides:

* two memoranda, subject:  Incentive Notice of Indebtedness (NOI)…, dated 30 September 2013
* self-authored memorandum, subject:  Request for Waiver of Debt, dated 6 November 2013
* memorandum, subject:  Requests for Waiver of Debt…, dated 12 November 2013
* form entitled Response to Incentives Notice of Indebtedness
* two DD Forms 2789 (Waiver/Remission of Indebtedness Application)
* DA Form 5447-R (Officer Service Agreement – Selected Reserve Educational Assistance Program)
* Written Agreement – OAB Addendum

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the U.S. Navy and U.S. Navy Reserve. 

2.  On 20 May 2007, he applied for Federal recognition as a second lieutenant (2LT) staff specialist in the California Army National Guard (CAARNG) and appointment as a Reserve commissioned officer in the Army National Guard of the United States.

3.  On 20 June 2007, JFHQ, CAARNG, issued Orders 171-1253 appointing him as a 2LT in the Staff Specialist Branch and assigning him to a temporary position in JFHQ, CA.  The National Guard Bureau (NGB) issued orders extending him Federal recognition for this appointment.  

4.  A DA Form 1059 (Service School Academic Evaluation Report), dated 12 October 2007, shows he completed Chaplain Initial Military Training.  

5.  His AMHRR contains a Written Agreement – OAB Addendum signed by him and a service representative on 23 January 2008.  He acknowledged he met eligibility criteria to receive a bonus under the Selected Reserve Incentive Program (SRIP).  The addendum lists two options eligible for a $10,000.00 OAB:

* be accessed into an NGB-approved critical unit identification code (UIC)
* be accessed into a modification table of organization and equipment (MTOE) unit not identified by NGB as a critical UIC

The addendum required the individual to initial one of the above options indicating the basis for OAB eligibility.  The applicant did not initial either option.

6.  On 29 February 2008, he signed a DA Form 5447-R (Officer Service Agreement – Selected Reserve Educational Assistance Program) acknowledging the service required to be eligible to receive benefits available under the Selected Reserve Montgomery GI Bill.  The form makes no reference to the CLRP.

7.  A DA Form 1059, dated 17 December 2010, shows he completed Chaplain Basic Officer Leader Course 11-001.  

8.  On 15 February 2012, JFHQ, CAARNG, issued Orders 46-1261 separating him from the ARNG effective 9 February 2012.  On the same date, the same headquarters issued Orders 46-1262 appointing him as a first lieutenant in the Chaplain Branch effective 10 February 2012.  NGB issued orders extending him Federal recognition for this appointment.

9.  His AMHRR is void of documentation showing he completed an agreement to participate in the CHLRP.  

10.  He provides several documents in support of his application.

	a.  Two memoranda, subject:  Incentive NOI…, dated 30 September 2013, from the U.S. Property and Fiscal Office for California, NGB, show the National Guard of California Incentives Task Force found him to be indebted to the U.S. Government due to erroneous receipt of:

* $10,000.00 in SRIP funds 
* $22,800 in Student Loan Repayment Program (SLRP) funds

He was advised that the U.S. Property and Fiscal Office for California had taken action to collect the debt through salary reductions, and he was advised of his rights.  

	b.  A self-authored memorandum, subject:  Request for Waiver of Debt, dated 6 November 2013, shows he requested a waiver of the debt described above.  He stated:

* he received the incentives in good faith and did not commit fraud or misrepresent his eligibility for the incentives
* he became eligible for the incentives again on 10 February 2012 upon appointment as a battalion chaplain

	c.  Two DD Forms 2789, dated 6 November 2013, show he applied for a waiver of the entirety of the debt described above.  On the DD Form 2789 requesting a waiver of his SLRP debt, he indicated he attached an agreement.  The attached document is the DA Form 5447-R he signed on 29 February 2008.  

	d.  A memorandum, subject:  Requests for Waiver of Debt…, dated 12 November 2013, from a customer service representative with the Settlement Team, Soldier Incentive Assistance Center, shows he was notified he was not eligible to file a request for an ETP due to the nature of the issues in his case.  He was advised that he could apply to this Board.  

		(1) The memorandum noted the following issues with regard to the $10,000 OAB:

* he failed to sign a bonus addendum prior to his appointment on 20 June 2007
* his bonus addendum was signed on 23 January 2008 in violation of Title 37, U.S. Code, Section 308 (37 USC 308)
* he was receiving loan repayment at the same time as the OAB making him ineligible for the OAB

		(2) The memorandum noted the following issues with regard to the CLRP:

* he was paid above the $20,000 CLRP limit in violation of Title 10, USC, Section 16303 (10 USC 16303)
* he was paid without having a contract to substantiate eligibility for the incentive in violation of Department of Defense Instruction 1205.21 and 37 USC 308

11.  ARNG Selected Reserve Incentive Program Guidance for Fiscal Years 2007, 2008, and 2009, effective 10 August 2007 – 30 September 2009, states chaplains must sign their OAB Addendum on the date they are commissioned as a Chaplain Candidate.  Officers receiving the CLRP are ineligible for an OAB.  

12.  NGB Education Division Instruction 1.1 (Chaplain, Health Professional and Enlisted Loan Repayment Programs) provides procedures for the ARNG Loan Repayment Program.  

	a.  To be eligible for the CLRP a Soldier must:

		(1) Meet all requirements for accessioning and commissioning as a Chaplain in the ARNG.

		(2) Hold an appointment as a Chaplain in the ARNG.

		(3) Sign a counseling checklist and written agreement to serve for three-years as a Chaplain in the ARNG.

		(4) Possess a current ecclesiastical endorsement from an agency approved by the Armed Forces Chaplains Board.

		(5) Possess outstanding educational loans secured on or after 1 October 1975 that were applied toward a basic professional qualifying degree (post baccalaureate) or graduate education resulting in a Masters of Divinity Degree or equivalent (theological, chaplaincy, apologetics, religious or related studies). 

	b.  Individuals enrolled in the Chaplain Candidate Program are not eligible to participate in the ARNG CLRP.

	c.  The amount of CLRP will not exceed $20,000 for each three-year period of obligated service that the person agrees to serve.  Therefore, the maximum payment given to an eligible participant under the CLRP will not exceed $6,666.66 for each year of the incentive term.  The maximum lifetime benefit will not exceed $40,000.  The payment will consist of the loan’s principal, interest, and related expenses.

13.  37 USC 308j provides the statutory authority for the OAB.  It states a person may not receive an accession bonus under this section and financial assistance under Title 10, Chapter 1609 (which includes 10 USC 16303), for the same period of service.

14.  10 USC 16303 provides the statutory authority for the CLRP.  It states the amount of any repayment of a loan made on behalf of an eligible person may not exceed $20,000.00 for each three year period of obligated service that the person agrees to serve.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was eligible for an OAB or the CLRP.  By law, he was prohibited from receiving both incentives for the same period of service.  Notwithstanding that fact, he received both incentives.  The record also shows that CLRP payments were made on his behalf beyond the $20,000.00 statutory maximum, and it appears that those payments were made in the absence of a CLRP agreement signed by the applicant.

2.  While the applicant bears no blame for the errors that occurred, these errors are an insufficient basis for allowing him to keep both incentives or to keep the CLRP payments made in excess of the statutory maximum.  As the record stands now, however, a Soldier who was eligible for an incentive is effectively receiving none.  To correct that inequity, it would be appropriate to allow him to retain the CLRP, the greater of the two incentives he was eligible for, up to the statutory maximum.  

3.  It is noted that the applicant has already received the maximum amount authorized under the CLRP but he has not yet completed 3 years of service as a chaplain.  Allowing him to retain the CLRP will not authorize any additional payments, but if he does not serve in an active status as a chaplain for at least 3 years, the CLRP monies paid on his behalf may again be subject to recoupment. 

4.  In view of the foregoing, his records should be corrected as recommended below. 

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 State Army National Guard records of the individual concerned be corrected by showing he entered into a $20,000.00 CLRP agreement effective the date he was appointed in the Chaplain Branch.  The maximum benefit has already been paid, so this recommended correction does not authorize any additional payments.  CLRP monies already paid on his behalf may be subject to recoupment if he does not serve in an active status as a chaplain for at least 3 years.  

2.  The Board further determined that the evidence presented was 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 the OAB and to CLRP payments in excess of $20,000.00.  



      ____________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)                                         AR20140001780





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ABCMR Record of Proceedings (cont)                                         AR20140001780



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