IN THE CASE OF:	  

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20140004914 


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:

	a.  remission or cancellation of his debt in the amount of $51,000.00 due to erroneously receiving Student Loan Repayment Program (SLRP) funds.

	b.  removal of a general officer memorandum of reprimand (GOMOR), dated 29 November 2012, from his local file.

2.  The applicant states:

	a.  he received improper guidance from the State Incentives Manager as to his eligibility for the SLRP.   

	b.  he never intended to receive funds that he was not entitled to and he regrets the embarrassment it has brought upon his family, the Army, and himself.  He inquired about his eligibility to the State Incentives Manager and trusted her as the subject matter expert.  Their email conversations are well documented in the investigation by the Federal Bureau of Investigation (FBI) and California Army National Guard (CAARNG).  The FBI was satisfied that the email string shows an honest exchange and inquiry with no malice or fraud.  The State Incentives Manager had proven knowledgeable and honest in prior and subsequent dealings on bonus related matters/questions.  He had approximately three topical interactions with the State Incentives Manager in 2009, about his SLRP, an accessions bonus for an ROTC cadet, and an affiliation bonus for an active duty captain joining the ARNG (West Point graduate).  The State Incentives Manager guided him through that process approving the cadet, but not approving the captain unless he accessed into a deployable unit (which he ultimately did not).  She had also advised him a few months prior that he was not eligible for an affiliation bonus.  She appeared to have solid screening criteria in place and good credibility as the incentives gate keeper.       

	c.  on 8 March 2009, he had a simple email inquiry to the State Incentives Manager ,"I have some college and grad [graduate] school loans am I eligible for any loan repayment incentives?"  The State Incentives Manager replied "Good morning Sir, I hope you are having a nice weekend.  Can I please have the following information.  Loan holders name Acct [account] number Address where the money goes ie [sic] loan holder How much did you borrow and owe."  He provided her the requested information.  Nothing seemed out of the ordinary.  In 1999, a bulk payment ($20,000.00) for student loans was paid when he was enlisted approximately one year after previous units had neglected to process them.  There was precedence for the State Incentives Manager declining incentives based on current policies, so when she approved the SLRP he had no reason to question its validity.  	 	

3.  The applicant provides:

* Notice of indebtedness
* Fact statement
* Emails
* Local filing of GOMOR
* GOMOR rebuttal
* Tax documents
* National Student Loan Data System (NSLDS) printouts
* ARNG retirement points history statement
* Enlistment contracts
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 16 April 1993, 13 July 2002, 27 April 2004, and 
      5 February 2006
* National Guard Bureau Form 22 (Report of Separation and Record of Service) 
* Orders

CONSIDERATION OF EVIDENCE:

1.  Having prior inactive service in the U.S. Army Reserve and ARNG, the applicant was appointed as a second lieutenant in the ARNG on 
14 April 2003.  

2.  His records do not contain an SLRP addendum.

3.  He was promoted to captain on 1 April 2009.

4.  He provides an email, dated 23 May 2009, which states his student loans were paid in May 2009.

5.  It appears that on 29 November 2012 he received a GOMOR for soliciting and receiving SLRP funds for which he, as an officer, was not entitled.  The applicant did not provide a copy of the GOMOR.  On 11 January 2013, he submitted a request that the GOMOR be filed locally.  In his memorandum he addressed the following points made against him in the GOMOR:    

	a.  "Solicited and received $33,737.05 SLRP funds for which you, as an officer, were not entitled."

	b.  "Upon receiving training in incentives, which should have led you to realize you were not entitled to these funds, at no point did you disclose these erroneous payments to the government."

	c.  "$17,262.95 was returned to DFAS [Defense Finance and Accounting Service] due to overpayment, $33,737.05 was received.  There was no SLRP addendum on file, the amount was in excess of $20,000 program limits, and you were an officer when you received the SLRP funds, all factors which rendered you ineligible to receive those payments." 

	d.  "In addition to the knowledge you gained as a recruiter, you received formal training in incentives at the Officer Strength Manager (OSM) course…once you did acquire knowledge about these requirements, there is no evidence indicating that you ever reported this receipt of improper payments.  Such conduct is unbecoming of an officer and a gentlemen."

6.  On 22 January 2013, the commanding general directed the GOMOR be locally filed in the applicant's Military Personnel Records Jacket (MPRJ) for a period of 3 years.

7.  On 24 January 2014, he received a notice of indebtedness for receiving SLRP funds erroneously in the amount of $51,000.00.
 
8.  The GOMOR in question is not contained in his Army Military Human Resource Record (AMHRR) on the interactive Personnel Electronic Records Management System (iPERMS).

9.  He provides three character reference letters from two majors and a lieutenant colonel.

	a.  a major, his company commander prior to January 2006, attests his duty performance was outstanding.  The applicant was one of the top five lieutenants in the battalion.  He had excellent leadership, was dedicated, and extremely competent.
	
	b.  a major attests the applicant's conduct was always fully in line with the Army Values.  He could not have asked for a better officer.  He has a solid character and personal sense of integrity.  He has many more productive years he could serve in the CAARNG.

	c.  a lieutenant colonel contends the applicant was a spectacular leader and brilliant officer.  His knowledge, professionalism, and overall performance led to the recognition of his efforts with a Brigade Commander Coin for Excellence, the Bronze Star Medal, and the Engineer Regimental de Fleury, awarded for his contribution to the Engineer combat effort.

10.  National Guard Regulation 600-7 (Selected Reserve Incentive Programs) states applicants for programs administered by this regulation are required to sign documents which specify the eligibility criteria and the term of service for the desired incentive.  The document will contain an acknowledgement that the applicant has been advised of and understands the benefits of the program and the conditions which can cause suspension or termination and recoupment is applicable.  These documents will be authenticated by a proper witnessing official and will include the preparation date.  All required 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 the SLRP.

11.  Title 10, USC, chapter 1609, section 16301 (Education Loan Repayment Program:  Members of SELRES), outlines the various types of student educational loans the Secretary of Defense may repay.  Repayment of any such loan shall be made on the basis of each complete year of service performed by the borrower.  The Secretary of Defense may repay loans in the case of any person for service performed as a member of the SELRES of the Ready Reserve of an Armed Force in a Reserve Component and in an officer program or military specialty specified by the Secretary of Defense.  The Secretary may repay such a loan only if the person to whom the loan was made performed such service after the loan was made.


12.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

13.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or interactive Personnel Electronic Records Management System), and the U.S. Army Human Resources Command website provides a listing of documents authorized for filing in iPERMS.  It states to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the DASEB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant incurred a debt in the amount of $51,000.00 for erroneously receiving SLRP funds.  

2.  He would have had to sign an SLRP addendum at the time of his appointment in the ARNG to be eligible for the SLRP and this addendum would have to have been included as part of his enlistment agreement.  However, his records do not contain an SLRP addendum.  

3.  While it is understood that the applicant was not a subject matter expert, the evidence shows that he had some (admittedly not extensive) training on incentives while in the Officer Strength Manager Course.  More importantly, it just is not credible that he would not have questioned why he was receiving such a significant monetary benefit without having to sign a written agreement of some type to clarify his expectations of the Army for giving him the benefit and the Army’s expectations of him for receiving the benefit.  

4.  His contentions and the supporting documentation were carefully considered.  However, he was an officer when he received the SLRP funds in 2009.  Since there is no evidence of record and he provided no evidence which shows this debt was incurred erroneously, there is insufficient evidence on which to remit this debt.

5.  His request to remove the GOMOR in question from his military records was noted.  However, there is no evidence that the GOMOR was improperly imposed or filed.  The imposing officer determined it should be filed locally, and it does not appear to have been filed in his AMHRR.  Therefore, there is an insufficient basis for granting the requested relief.

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)                                         AR20140004914





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ABCMR Record of Proceedings (cont)                                         AR20140004914



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