IN THE CASE OF:    

		BOARD DATE:  29 October 2014	  

		DOCKET NUMBER:  AR20140002058 


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 cancellation of recoupment of his Officer Accession Bonus (OAB) in the amount of $10,000.00 and the Chaplain Loan Repayment Program (CLRP) in the amount of $22,500.00.  He also requests establishment of a second CLRP contract beginning on 7 August 2011.

2.  The applicant states:

	a.  There is no evidence of fraud or impropriety on his part.

	b.  He is eligible to receive the Student Loan Repayment Program (SLRP) based on the CLRP for Fiscal Years (FY) 2008-2011.

	c.  He is eligible to receive an OAB based on the Selected Reserve Incentive Program (SRIP) for FY07, Policy Number 07-05.

	d.  He is serving the purpose of the OAB and SLRP.

3.  In a letter, dated 9 August 2013, the applicant states:

	a.  On 11 September 2012, he received a letter from the California Army National Guard (ARNG) Incentive Task Force (ITF) stating he owed the government $32,500.00 for incentives that were erroneously awarded to him (OAB in the amount of $10,000.00 and SLRP in the amount of $22,500.00).  The ITF audit stated he was not entitled to the OAB because he was not in a valid vacant position, he was receiving the SLRP simultaneously, and a copy of his original signed addendum could not be found.

	b.  He was recruited into the California ARNG in February 2007 and he was provided a document outlining the incentives to which he was entitled as a chaplain during the recruitment process.  Those incentives were the OAB and CLRP.  He was commissioned on 7 August 2008 and he signed an OAB addendum the same day.  He was completely eligible to receive an OAB at the time of his commissioning.

	c.  Based on the representations from his recruiters, he believed he was entitled to receive the SLRP simultaneously with the OAB.  After he received the OAB, he contacted a chaplain recruiter regarding the program and she responded by forwarding his student loan information to the State Incentive Manager for processing.  He never received an addendum to sign.  He completely relied on the expertise of his recruiters and the State Incentive Manager.

	d.  He now understands that he was not eligible to receive the SLRP because he previously received the OAB.  However, he was not aware of this until he received the recoupment letter from ITF, over 5 years after receiving the funds.  Since the $22,500.00 he received from the SLRP went to pay off his student loans, to recoup such a large amount from him now would create an extreme hardship for him and his family.  Especially since this hardship was not brought on by his own doing.  It was the negligence of his recruiters and the State Incentive Manager who put him in this position.  He would not have requested the SLRP incentive had he known he was not eligible to receive it.

	e.  If the Board cannot relieve him from recoupment, he requests a ruling by the Board that he is eligible for the CLRP valued at $27,156.00.  He requests establishment of a CLRP contract for $20,000.00 on 7 August 2008 and another CLRP contract for $7,156.00 on 7 August 2011.

	f.  He has served in the military since 1994 when he first enlisted in the U.S. Navy.  He honorably served in the Navy, both active and Reserve, until 2001 when he decided to pursue his master's degree in divinity.  After he earned his chaplaincy, he decided to serve his country once again and he joined the Army Chaplain Corps.  Since joining the ARNG, he was the battalion chaplain for the 640th Aviation Support Battalion from 2008 to 2012.  In 2010, he proudly served a year-long deployment in Iraq.  He is currently assigned as the brigade chaplain for the 17th Sustainment Brigade with the Nevada ARNG.

	g.  He believes he has served the purpose of the OAB and the SLRP incentives he received.  Since accepting the incentives in 2007, he has proudly served his country.

4.  The applicant provides:

* ITF recoupment notification, dated 11 September 2012
* bonus audit form
* ARNG SRIP FY 07 (Policy Number 07-50)
* email correspondence
* Critical Officer Area of Concentration (AOC) list
* assignment orders
* Federal Bureau Investigation press release, dated 11 July 2011
* student loan printouts
* ARNG SRIP FY11

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the U.S. Navy, the applicant was commissioned as a Chaplain Corps first lieutenant in the ARNG on 7 August 2008.

2.  The available records do not contain a written agreement for an OAB or CLRP.  However, he provided email from the California ARNG Chaplain Recruiter and State Incentive Manager, dated September 2008 to February 2009, that indicate the California State Incentive Manager processed his SLRP paperwork.

3.  Records show the applicant received $22,500.00 in CLRP funds and a $10,000.00 OAB.

4.  He completed the Chaplain Basic Officer Leader Course in April 2009.

5.  He was promoted to captain effective 12 April 2010.

6.  He provided a memorandum from the Soldier Incentives Assistance Center (SIAC) Commander, dated 5 November 2013, which states:

	a.  The SIAC audited the applicant and discovered that although he was eligible to contract for both the CLRP incentive and OAB, he was not entitled to receive both incentives for the same period of service.  No CLRP or OAB addenda were found in his military records; however, there is no evidence of fraud on the part of the applicant.

	b.  The applicant commissioned into the California ARNG on 7 August 2008 as a first lieutenant in AOC 56A (Chaplain).  On 7 August 2011, he served his first 3-year obligation as a chaplain in the ARNG.  He transferred to the Nevada ARNG on 29 May 2012 and was placed on military technician orders effective 16 December 2012.  At that time, he had served approximately 4 years and 4 months in the ARNG.  On 7 August 2014, he finished a 6-year term for the ARNG.  He received $22,500.00 in CLRP funds and a $10,000.00 OAB.

	c.  He received $22,500.00 in CLRP funds.  He was paid $22,500.00 on his Federal loans on 29 October 2008.  Per the guidance published on 15 February 2008, the applicant was eligible to contract for $20,000.00 for each 3-year period of obligated service that he agreed to serve.  However, there was no existing contract and he was paid $2,500.00 in excess of the program limit.

	d.  He wants the Board to create two CLRP contracts to make him eligible to receive $27,156.00.  One contract should be dated 7 August 2008 and a second contract should be dated 7 August 2011.  Pursuant to the 2011 SRIP, payment was to be made for each year of satisfactory participation as a chaplain in the ARNG.  Under this SRIP, termination without recoupment occurs when a service member accepts a military technician position where membership in a Reserve Component is a condition of employment.  His status change to military technician on 16 December 2012 would have terminated a second SLRP obligation contract.  The 2011 SRIP states that payment will be made for each year of satisfactory participation as a chaplain in the ARNG.  Because he did not complete year two in a non-military technician status, he would only be eligible to receive the first anniversary payment of a second CLPR obligation.  Therefore, if a second CLRP contract was created, the applicant could only ask for relief for the remaining two payments of this obligation.

	e.  The applicant also received a $10,000.00 OAB.  He received two payments of $5,000.00, on 5 and 12 December 2008.

	f.  He became a military technician on 16 December 2012.  The OAB addendum he should have signed states a service member would be subject to recoupment if he fails to satisfactorily complete his service obligation due to accepting a military technician position where membership in a Reserve Component is a condition of employment.  Had he signed an OAB addendum, his status change to military technician would have terminated this incentive without recoupment on 16 December 2012.

	g.  By law, a Soldier is not allowed to receive a OAB and CLRP for the same period of contractual obligation.  He received $22,500.00 in CLRP funds on 29 October 2008.  He received two separate $5,000.00 payments for his OAB, on 5 and 12 December 2008.  Because his CLRP required at least 3 years of service as a chaplain and his OAB required an obligation of 6 years, he received his OAB and CLRP for the same period of contractual obligation in violation of Title 37, U.S. Code, section 308j.

	h.  He is requesting that the Board rule that he is eligible for the OAB and that he be relieved of CLRP recoupment based on equity and justice.  In the alternative, he is asking that the Board rule he is eligible to receive $27,156.00 in CLPR by creating two contract obligations, one on 7 August 2008 and the other on 7 August 2011.  With this, he is requesting to be relieved of the remaining $5,344.00 debt.  However, if a second CLRP contract is created, he would need to be relieved of two anniversary payments due to his change in status.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau.  That office recommended partial approval of the applicant's requests.  The opinion states:
 
	a.  The applicant met the requirements for both the OAB and CLRP individually; however, a Soldier cannot receive both simultaneously for the same period of service.  Receiving both incentives simultaneously is in violation of Title 37, U.S. Code, section 308j, paragraph r, which states, "A person may not receive an affiliation bonus or accession bonus under this section and financial assistance under chapter 1608, 19609, or 1611 of Title 10…for the same period of service."  The CLRP the applicant received falls under Title 10, chapter 1609 (section 16303), so it cannot be combined with an OAB.

	b.  The applicant indicates he signed OAB and CLRP addenda on 7 August 2008, but does not have a copy of either addendum.  This claim is most likely true because the incentives were processed by the California ARNG and paid.  The contract addenda not being retained by the State is not the fault of the applicant; since both incentives were processed and paid, the presumption that the applicant did indeed sign them is reasonable.

	c.  The Office of the Under Secretary of Defense published a memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends.  This memorandum states, "A member who enters into a written agreement with specified conditions for receipt of a pay or benefit, is entitled to the full amount of the pay or benefit if the member fulfills the conditions of that pay or benefit.  The Deputy Secretary of Defense policy memorandum recognized that, at the time, members were subject to statutory repayment for any unearned portion of a pay or benefit, as appropriate.  However, it was also understood there may be circumstances that support the need to refrain from taking such action."  Therefore, the California ARNG erroneously allowed the applicant to contract for two incentives simultaneously.  The terms of the contracts should be upheld.

	d.  The terms of the contract the applicant would have signed stated the incentive is terminated without recoupment if the member enters military technician status.  Also, National Guard Regulation 600-7 (Selected Reserve Incentive Programs), paragraph 4-19, states the bonus is terminated without recoupment if the Soldier accepts a military technician position.  In this case, the Soldier receives a prorated amount based on how many months of the contract he served, in accordance with National Guard Regulation 600-7, paragraph 2-10; the bonus is prorated based on the number of months served.  The applicant served from 7 August 2008 until accepting a military technician position 52 months later (16 December 2012).  Therefore, he is entitled to 52 months worth of the contract, $7,222.22.  The remaining $2,777.78 should be recouped.

	e.  The applicant received $22,500.00 from the CLRP for the 3-year period from 7 August 2008 through 7 August 2011.  Since the incentive was paid, it is reasonable to presume the applicant did sign a contract addendum.  The State Incentives Manager failed to maintain the applicant's file in accordance with National Guard Regulation 600-7, paragraph 5-7, which requires a copy of the contract addendum.

	f.  The $22,500.00 paid exceeds the maximum amount for the 3-year period in accordance with Title 10, U.S. Code, section 16303, paragraph (b)(2), which states $20,000.00 is the maximum amount that can be paid in a 3-year period.  He received $2,500.00 in excess of what he was eligible to receive.  The recommendation is relief from recoupment authorized by Title 10, U.S. Code, section 2774, paragraph (1), which states, "A claim of the United States against a person arising out of an erroneous payment or any pay or allowances…the collection of which would be against equity and good conscious and not in the best interest of the United States, may be waived in whole or in part…"

	g.  The applicant's request for a second CLRP contract to begin 7 August 2011 should be denied.  This is a separate request because it is for a different period of service and requires a written agreement; the applicant does not contend any such agreement was signed.  A written agreement is required in accordance with Title 10, U.S. Code, section 16303, paragraph (a)(3).  Also, National Guard Regulation 600-7, paragraph 1-13c, states, "All addenda will be completed at the time of enlistment/reenlistment or extension.  An addendum cannot be completed after the fact in order to gain eligibility for an incentive or Student Loan Repayment program [sic]."  Additionally, had he entered into a loan repayment contract on 7 August 2011, it would have been terminated when he entered military technician status on 16 December 2012.

	h.  The California ARNG concurs with this recommendation.

8.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant responded and stated:

	a.  According to the advisory opinion, he is fully eligible to participate in both the CLRP and the OAB.  However, NGB additionally concluded he was not eligible to simultaneously receive benefits from the OAB and SLRP and he could only participate in one installment of the CLRP for $20,000.00.  He does not contend the fact that he cannot simultaneously receive benefits from the OAB and SLRP because he understands that doing so would in violation of Department of Defense policy.  However, his chief contention is NGB's conclusion that he is not eligible to receive another installment of CLRP after his initial 3-year commitment despite being eligible to receive it under SRIP FY11.

	b.  NGB's recommendation to deny a second installment of CLRP is based on the fact that a written agreement was not created.  However, he is fully eligible under the SRIP to receive another installment of the CLRP after completion of his first 3-year obligation.  Therefore, he should be able to contract for and receive benefits under the CLRP.

	c.  He is simply making this request to offset the remaining $12,500.00 debt, assuming the Board rules that he is indeed eligible to receive benefits from his initial $20,000.00 CLRP payments.  This would be the most equitable outcome as it appears that California ARNG should bear the bulk of the blame for feeding him the wrong information and for processing both the CLRP and OAB simultaneously.

	d.  Again, he was completely led to believe that he was eligible to receive both benefits simultaneously by his recruiter.  He certainly would not have accepted the bonus had he known he was not eligible to receive it.  The fact that California ARNG processed the incentives further reinforced his belief that he was eligible to receive the benefits.  He believes it is extremely unjust for a Soldier to rely on this information for approximately 6 years then allow the Army to recoup the full amount and expect the Soldier to immediately produce the money.  The fact that he was fully eligible to receive the incentives is especially egregious.  For the purpose of equity and justice he requests the Board rule that he is eligible to receive the CLRP for $20,000.00 that he contracted for on 7 August 2008 and to allow him to contract for a second installment of the CLRP for $12,500.00 dated 7 August 2011.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received $22,500.00 from the CLRP and $10,000.00 for an OAB.

2.  The CLRP and OAB payments he received were both for the same contractual period and the law clearly states a service member is not eligible to receive the CLRP and OAB simultaneously.

3.  He contends it was his understanding that he was eligible to contract for the OAB and CLRP based on information provided to him by his recruiter and the California ARNG State Incentive Manager.  He provided email documentation pertaining to the loan repayment program.

4.  Although there is no evidence of record which shows he signed a written agreement for an OAB or the CLRP, it appears there may have been an error on the part of his recruiter and the California ARNG State Incentive Manager since both incentives were processed and paid to him.  The California ARNG erroneously allowed him to contract for two incentives simultaneously.

5.  Since by law the applicant cannot receive both the CLRP and the OAB, it would be equitable to correct the applicant’s records to give him the most advantageous incentive.

6.  He incurred student loans in the amount of $27,156.00.

7.  He received $22,500.00 from the CLRP for the 3-year period from 7 August 2008 through 7 August 2011.  The $22,500.00 paid exceeds the maximum amount for the 3-year period; therefore, he received $2,500.00 in excess of what he was eligible to receive.  Although it appears the ARNG has honored this CLRLP contract even though it is not available, to prevent any further questions as to his eligibility for this first $20,000.00 payment it would be appropriate to correct his records to show this document was prepared in a timely manner.

8.  The applicant would then need a second 3-year CLRP contract to cover his remaining $7,156.00 in student loans, beginning on 7 August 2011.

9.  He fulfilled 4 years and 4 months of service as a chaplain, and then he accepted a military technician position with the Nevada ARNG effective 16 December 2012.



10.  As a matter of equity, it would be appropriate to grant him some additional relief.  Therefore, his records should be corrected to show he and all appropriate representatives signed a second written agreement for the CLRP not to exceed $20,000.00 for the 3-year period beginning 7 August 2011, with the understanding that his eligibility would terminate with his acceptance of a military technician position with the Nevada ARNG effective 16 December 2012.

11.  Notwithstanding the NGB advisory official's recommendation for prorating the applicant's OAB, he is not eligible for the OAB by law since he was paid the CLRP incentive.  Therefore, there is no basis for granting his request for the OAB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

   a. by showing he and all appropriate representatives signed his original written agreement for the CLRP in a timely manner not to exceed $20,000.00 for the 3-year period beginning 7 August 2008; and

   b. showing he and all appropriate representatives signed a second written agreement for the CLRP in a timely manner not to exceed $20,000.00 for the      3-year period beginning 7 August 2011, terminating with his acceptance of a military technician position with the Nevada ARNG effective 16 December 2012.

2.  The Board further determined 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 cancellation of the recoupment of his OAB in the amount of $10,000.00 and any relief concerning the CLRP other than as noted above.



      ___________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)                                         AR20140002058



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