IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140005017 


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 military records to show he received a student loan repayment program (SLRP) addendum and relief from the recoupment of $17,500.00 in SLRP payments.

2.  The applicant states he was never presented with an SLRP addendum.  He would have signed the addendum if it had been presented to him.  He relied on the expertise of the California State Incentives Manager.

3.  The applicant provides copies of:

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) dated 23 June 2003
* Orders, California Army National Guard (CAARNG) dated 19 August 2004
* National Guard Bureau (NGB) Form 337 (Oaths of Office) dated 
21 August 2004
* Email communication between the applicant and the CAARNG, dated     17 January 2008
* Information sheet, U.S. Attorney's Office, Central District of California, dated 11 July 2011
* Army National Guard Retirement Points History Statement, prepared      18 October 2011
* Response to Incentives Notice of Indebtedness, dated 20 November 2013
* Memorandum, Notification of Termination/Recoupment of Incentive, dated 30 November 2013
* Memorandum, Statement of Facts, dated 3 March 2014
* National Student Loan Data System summary (9 pages) dated between 19 January 1999 and 21 March 2008
* Military Pay Vouchers, dated in August 2014 (4 pages)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 23 June 2003, the applicant enlisted in the CAARNG beginning in the rank of specialist, pay grade E-4, for a period of 3 years.

3.  Orders 232-1046, CAARNG, dated 19 August 2004 announced the appointment of the applicant as a second lieutenant, pay grade O-1 in the CAARNG, effective 21 August 2004.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA.

	a.  In 2003, the applicant approached a CAARNG recruiter and expressed a desire to become a commissioned officer and to include an SLRP option in his contract.  The recruiter informed him that his loans qualified and he would work on getting this incentive added to the contract.  The applicant was subsequently informed that he was not eligible for the SLRP.  He still desired to become an officer.  In 2008, the applicant approached the CAARNG incentives manager regarding the possibility of being eligible for a captain retention bonus.  He was informed that his SLRP had been approved and needed to provide his loan information.  He later verified with the lender that his loans had been paid.

	b.  There is no addendum to support the SLRP action which is a violation of Defense Instruction 11205.21 (Reserve Component Incentive Programs Procedures) stating: "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."  Additionally, the Selected Reserve Incentive Program Policy 07-06 (June 2008) showed the applicant was not eligible for the SLRP.

	c.  Consideration should be given to the fact that the applicant was unaware of the overall process relating to incentives and relied solely on the subject matter expert's guidance regarding his eligibility for receiving SLRP.  The applicant should not be penalized nor held accountable for actions beyond his control and not of his own fault.  The CAARNG Incentives Task Force audited the applicant's record and determined that the circumstances surrounding this case reflect there was no fraud on the part of the applicant.  It was determined that the incentives manager had committed incentives fraud.  Not only was the incentives manager at fault, but the other departments/approval authorities that allowed the incentive to be processed were accountable for not abiding by or having systems in place to identify eligibility.  Therefore, the applicant should not be penalized by having the SLRP funds recouped.

	d.  Regarding the creation of an addendum, the Department of the Army issued guidance to the NGB denying authorization for exceptions to policy when the addendum is not signed by government representatives, or when such signatures are more than 12 months from the date of the commission.  Given the circumstances surrounding this case, creating an addendum would serve no purpose.

	e.  The CAARNG concurred with this advisory opinion.

5.  On 7 November 2014, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected to show he received a SLRP addendum and relief from the recoupment of $17,500.00 in SLRP payments.

2.  A review of the applicant's case clearly shows that the applicant was not at fault for any of the administrative errors that occurred in the processing of his commissioning contract.  Accordingly, his records should be corrected to show he requested and was granted an exception to policy concerning the SLRP.  Furthermore, no SLRP payments should be recouped.

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:

	a.  showing he requested and was granted an exception to policy concerning the subject student loan repayment program; and

	b.  terminating any ongoing recoupment action and refunding, out of ARNG funds, any recoupment of these monies that may have already occurred, that is related to this correction of records.

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 creating an addendum to his contract authorizing the student loan repayment program.




      ___________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)                                         AR20140005017





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ABCMR Record of Proceedings (cont)                                         AR20140005017



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