IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20140004553 


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 relief from the recoupment of the Officer Accession Bonus (OAB) and Student Loan Repayment Program (SLRP) funds he received.

2.  The applicant states his recruiter and various other members of the accessions task force wrongly led him to believe he was eligible for the OAB and SLRP simultaneously.  

	a.  On April 2013, an audit conducted by the California Army National Guard (CAARNG) Incentive Task Force (ITF) concluded that the SLRP and OAB payments he received in 2008 and 2009 were made in error.  As a result of these findings, the CAARNG recommended recoupment of/informed him he owed the U.S. Government a debt of $40,000.00.  However, a re-audit conducted by the ITF found he only received $15,000.00 in SLRP funds instead of $30,000.00.  As a result of these new findings, the amount of his debt was reduced to $25.000.00.

	b.  He was commissioned into the CAARNG on 16 August 2008.  On 
15 August 2008, he signed his OAB addendum in accordance with the instructions given to him by the accessions officer.  He is now aware he signed the addendum 1 day too soon; however, he was eligible to receive an OAB of $10,000.00 as a newly commissioned officer.  

	c.  After his commissioning he accepted an Active Duty for Operational Support (ADOS) position with officer recruiting for the CAARNG.  While there he was encouraged to see the CAARNG incentives manager, Master Sergeant (MSG) TLJ.  MSG TLJ told him he was eligible for the SLRP based on his previous enlisted status.  She further informed him she needed his student loan and federal loan documents to process the SLRP.  His student loan lender notified him that a $15,000 payment had been made in June 2009.  

3.  The applicant provides:

* self-authored statement, dated 28 January 2014
* OAB Addendum, dated 15 August 2008
* email transmission, dated 29 September 2008
* news article, dated 11 July 2011
* memorandum, dated 9 April 2013
* memorandum, dated 3 July 2013
* memorandum, dated 9 August 2013
* Orders Number 331-1028, dated 27 November 2013
* All Army Activities (ALARACT) Message Number 017/2005, dated 
25 January 2005
* memorandum, dated 8 April 2005
* ARNG Selected Reserve Incentive Program (SRIP) Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 10 August 2007 – 30 September 2009 (Policy Number 07-06), dated 10 August 2007 and updated 17 February 2008
* memorandum, dated 21 May 2008
* excerpt from Department of Defense Instruction (DODI) Number 1304.29, enclosure 15
* excerpt from Financial Management Regulation (FMR) Volume 7A, Chapter 56
* excerpt from Title 37 U.S. Code (USC), section 308j

CONSIDERATION OF EVIDENCE:

1.  After having previous enlisted service, he was appointed as a second lieutenant in the CAARNG on 16 August 2008.  

2.  His record does not contain a contract, OAB or SLRP addendum.  However, he provided a Written Agreement - Officer/Warrant Officer OAB, dated 15 August 2008, which shows in connection with his appointment as an officer and agreement to serve with the ARNG under the SRIP:

	a.  He agreed to serve in the Selected Reserve (SELRES) in a critical skill Area of Concentration (AOC) [11A (Infantry Officer)] that is designated for bonus entitlement by the Chief, NGB (CNGB).

		(1)  He possessed a skill designated by the Secretary of the Army (SA) for bonus entitlement or he agreed to accomplish the necessary training prescribed by the SA to achieve the designated skill within 36 months of appointment.

		(2)  He was not currently and would not receive financial assistance under chapters 1608, 1609 [SLRP], 1611, 2107, or 2107a of Title 10 USC, or special pay under Title 37 USC, section 302g during the period of his agreement.

		(3)  He agreed to serve in the SELRES for 6 years, the full period of his agreement.

		(4)  He agreed to serve satisfactorily, as prescribed by the appropriate regulations of the ARNG, for his complete period in the SELRES of the ARNG of the United States (ARNGUS) according to his written agreement and in the critical skill in which assessed unless excused for the convenience of the government.

		(5)  The bonus accrual would begin on the date his agreement was accepted by the SA and the total amount of the bonus payable under the agreement would become fixed upon acceptance of the written agreement by the SA.

		(6)  He was being accessed into:

			(a)  The NGB approved critical Unit Identification Code (UIC) of WPCMA0 [Company A, 1st Battalion, 160th Infantry Regiment] and would receive a bonus of $10,000.00 paid in one lump sum upon his successful completion of the Officer Basic Course (OBC) [currently referred to as the Basic Officer Leader Course ([BOLC)].  Or; 

			(b)  He was being accessed into a Modified Table of Organization and Equipment (MTOE) unit that is not identified as an NGB critical UIC.  He would receive a bonus of $10,000.00 paid in two 50 percent (%) installments.  The first 50% installment would be payable upon successful completion of BOLC and the second and 50% installment would be payable on the third-year anniversary of his commission/appointment date.

		(7)  He understood, if he failed to satisfactorily complete the service obligation incurred under his OAB agreement for any of the below listed reasons, that recoupment of all or a portion of his bonus could occur.

			(a)  Failure to complete BOLC within 36 months of his appointment.

			(b)  Voluntarily move to a non-bonus skill, unless the move is required by the Reserve Component.

	b.  The applicant, the service representative, and the witnessing official signed the OAB agreement on 15 August 2008.  However, this OAB addendum did not contain a Bonus Control Number (BCN).

3.  Special Orders (SO) Number 240 AR issued by the NGB on 22 September 2008 show he was extended Federal recognition as an infantry officer, he was appointed as a Reserve commissioned officer effective 16 August 2008, and he was assigned to Company A, 1st Battalion, 160th Infantry Regiment.  

4.  His record contains two DA Forms 1059 (Service School Academic Evaluation Report) showing he completed BOLC on 25 November 2009 and was awarded AOC 11A (Infantry Officer).

5.  SO Number 54 AR, issued by the NGB, on 24 March 2010, extended him Federal recognition in the rank of first lieutenant (1LT) with an effective date of 
16 February 2010.

6.  Orders Number 52-1082 issued by the CAARNG on 21 February 2012 reassigned him from Company A, 1st Battalion, 160th Infantry Regiment, UIC WPCMA0 to Headquarters and Headquarters and Company, 1st Battalion, 160th Infantry Regiment, UIC WPCMT0.

7.  His record contains a DA Form 1059 showing he attended and completed the Adjutant General (AG) Captains Career Course on 28 August 2012.

8.  Orders Number 314-1027 issued by the CAARNG on 9 November 2012 show he was transferred from the Infantry Branch to the AG branch [AOC 42B (Personnel Systems Management)] effective 8 November 2012.

9.  SO Number 399 AR federally recognized his branch transfer from the infantry to the AG with an effective date of 8 November 2012.

10.  Orders Number 129-1301 issued by the CAARNG transferred him from Headquarters and Headquarters Company (Forward), 1st Battalion, 160th Infantry Regiment, UIC WPCMTA to Headquarters Company, 1st Battalion, 160th Infantry Regiment, UIC WPCMT0, effective 3 April 2013.

11.  He provided a memorandum issued by the CAARNG, dated 9 April 2013.  This memorandum informed him his OAB and SLRP contracts had been audited. The audit revealed that his contracts were in violation of Army Regulation 135-7, paragraph 5-1, 4.1(b)(2), ARNG SRIP (10 August 2007 – 28 February 2009, DODI 1205.21, Section 6.2 and E8.1.2.1, and Title 37 USC, Section 308(j), paragraph (f).  As a result of the violations his contracts would be terminated with recoupment.

12.  Orders Number 331-1028 and Orders Number 331-1296, issued by the CAARNG, on 27 November 2013 show the applicant was ordered to full-time National Guard duty in an Active Guard Reserve (AGR) status, effective 
1 December 2013.  He was transferred him from 1st Battalion, 160th Infantry Regiment, UIC WPCMT0 to Headquarters and Headquarters Company, 1st Battalion, 185th Armored Regiment, UIC WP7NT0.

13.  SO Number 113, issued by the NGB on 30 April 2014, Federally recognized him as a captain with an effective date of 4 April 2014 and shows he was/is assigned to Headquarters and Headquarters Company, 1st Battalion, 185th Armored Regiment.

14.  During the processing of this case an advisory opinion was received from the Office of the Deputy Chief of Staff, G-1, dated 16 May 2014.  The advisory official stated:

	a.  In order to be eligible for the SELRES OAB as a commissioned officer, an individual in the ARNGUS must meet Headquarters, Department of the Army (HQDA) eligibility criteria as published in ALARACT Message 017/2005 and the current ARNG SRIP announcement in effect the date the individual makes application for an officer appointment/training or on or before the officer's appointment date.  In addition to meeting the HQDA and ARNG SRIP criteria, the individual must sign an agreement (OAB addendum) to accept an appointment in a critical skill AOC listed in the ARNG SRIP in effect on the date of agreement.  A review of the ARNG SRIP in effect when the applicant was commissioned 
(16 August 2008) shows AOC 11A was eligible for an OAB.

	b.  The statutory authority for the OAB, including eligibility criteria, is Title 37 USC, Section 308j, paragraph f. that indicates a person may not receive an accession bonus and financial assistance under Chapter 1608, 1609, or 1611 of Title 10 USC, or under Title 37 USC, Section 302g, for the same period of service.  [A unique aspect of eligibility for SLRP is that the obligated period of service, in 1-year increments, must be completed prior to the payments being made to the lending institution.)  Title 10 USC, Chapter 10, Section 16303 is the statutory authority for the SLRP.  Therefore, under the provisions of Section 308j, paragraph (f), it is unlawful for the applicant to receive money for the SLRP and the OAB while simultaneously completing the service obligation for each incentive.  These restrictions are also included in DODI 1205.21 and the Financial Management Regulation (FMR), Volume 7A, Chapter 56, paragraph 560106, ALARACT Message number 017/2005, and the OAB addendum the applicant signed before his commissioning.

	c.  The applicant was required to sign the OAB addendum on the date of commissioning in accordance with the ARNG SRIP policy in effect at the time.  In this manner, the responsible ARNG incentives official is able to ensure the applicant is appointed in a bonus-eligible AOC.  However, there is no HQDA policy that prevents the signing of an OAB addendum before the date of commissioning.

	d.  A condition of continued eligibility for the OAB is that the officer not enter the AGR program while serving the obligated period.  The OAB addendum the applicant signed indicates that his bonus would be terminated without recoupment if he accepted the AGR position.  Orders Number 331-1028 issued by the CAARNG on 27 November 2013 show the applicant entered Title 32 service in the CAARNG on 1 December 2013.  Accordingly, he only served 5 years, 3 months, and 16 days of the OAB service obligation.

	e.  Based on the aforementioned statutory and policy restrictions, and the facts of the case, the Army G-1 recommended:

		(1)  Approval of the applicant's request for waiver of recoupment of the OAB, but only for the 5 years, 3 months, and 16 days of the obligated period he actually completed.

		(2)  Recoupment of OAB funds for the 8 months and 14 days of obligated service he did not complete.

		(3)  Disapproval of the applicant's request to waive the recoupment of the SLRP funds he received after his commissioning date.

15.  The applicant did not respond to the advisory opinion.

16.  ARNG SRIP Guidance for Fiscal Year (FY) 2007, 2008, and 2009, 
10 August 2007 – 30 September 2009 (Policy Number 07-06), dated 10 August 2007 and updated 17 February 2008 states:

	a.  Officers are prohibited by law from receiving both the SLRP and the OAB simultaneously.  An officer cannot choose to "drop" their SLRP in order to qualify for the OAB.  In order for an officer, who remained on their SLRP while in an officer producing program, to qualify for the OAB upon commissioning, their SLRP must be completed prior to their commissioning date by either having the final payment processed in a normal fashion under the contract, or by paying off their loans where no further payments are possible under the SLRP contract.

	b.  Officers must sign the OAB addendum on the date that they accept their commission as a 2LT.

	c.  To be eligible for the OAB, officers must not be receiving and will not receive any benefits listed under Chapter 1609, Title 10 USC - Education Loan Repayment Program (SLRP) during the period of service for which he or she contracted.  

	d.  Officers cannot receive an OAB with the intent of qualifying for employment in the AGR program.

	e.  Eligibility for the OAB requires the officer agree to serve for a period of not less than 6 years in an active drilling status in a critical skill AOC for the full length of the incentive contract term.

	f.  The critical skill AOC list (updated/effective 1 March 2009) shows 11A and 42B were both listed as critical skill AOCs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's OAB addendum was signed 1 day before his appointment as a commissioned officer thereby violating the ARNG SRIP policy guidance in effect on the date his contract was signed/he was appointed.  Additionally, his contract is missing a BCN.  These errors are not his fault and he should not be held responsible.  Therefore, his OAB addendum should be corrected to show he signed it on the date of his appointment, 16 August 2008, and that a BCN was properly issued.

2.  The evidence of record shows he entered active duty in an AGR status/position on 1 December 2013 and was, therefore, transferred away from the UIC/unit he contracted for.  As such, he failed to complete his full 6-year obligation.  Therefore, his OAB monies should be prorated and recouped to account for the 8 months and 14 days of obligated service he did not perform.

3.  He was not entitled to the SLRP.  The OAB addendum he signed specifically stated and he agreed he was not currently and would not receive financial assistance under chapter 1609 [SLRP] of Title 10 USC during the period of his agreement.  


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:

* showing he and all other officials properly executed an OAB addendum on 16 August 2008
* showing his OAB addendum contained a BCN
* prorating his OAB installment to account for the unserved portion of his contract
* recouping the prorated monies for the unserved portion of his contract

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 waiving the recoupment actions for previously-paid SLRP funds.



      ____________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)                                         AR20140004553





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ABCMR Record of Proceedings (cont)                                         AR20140004553



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