IN THE CASE OF:  	  

		BOARD DATE:  9 April 2015	  

		DOCKET NUMBER:  AR20140009632 


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 correction of his records to show he is entitled to retain the Student Loan Repayment Program (SLRP) incentive ($50,000.00) offered at the time of his enlistment in the Louisiana Army National Guard (LAARNG) in 2011.

2.  The applicant states, in effect:

	a.  He is requesting an exception to policy (ETP) to retain the SLRP.

	b.  Upon his enlistment in the LAARNG, he was informed he would be eligible for the SLRP.  This was a major deciding factor in his decision to enlist.

	c.  His recruiter did not execute the proper procedure in accordance with the methods required for him to receive the SLRP.  His recruiter did not do her job properly and withheld his SLRP paperwork until after he received his commission.

3.  The applicant provides:

* ETP denial letter, dated 23 September 2013
* memoranda, dated 18 December 2012 and 12 January 2013
* DA Form 2823 (Sworn Statement) from his recruiter, dated 3 January 2013
* National Guard Bureau (NGB) Form 600-7-5-R-E (SLRP Addendum)
* student loan documentation

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the LAARNG on 27 April 2010 for a period of 8 years for military occupational specialty (MOS) 09S (Officer Candidate).  Section VII (Addendums) of his enlistment agreement does not include an SLRP addendum.  Item 32 (Specific Option/Program Enlisted For, Military Skill, or Assignment to a Geographical Area Guarantees) of his DD Form 1966 (Record of Military Processing – Armed Forces of the United States) does not show the SLRP as an incentive.

2.  He was honorably discharged from the LAARNG on 17 March 2011 for appointment as a commissioned officer.  He was appointed as a second lieutenant in the LAARNG on 18 March 2011.

3.  He provided an NGB Form 600-7-5-R-E, dated 6 April 2011, showing he enlisted for the Non-Prior Service (NPS)/Prior Service (PS) SLRP incentive in the amount of $50,000.00 in MOS 09S.

4.  He was promoted to first lieutenant on 18 September 2012.

5.  He provided a sworn statement from his recruiter, dated 3 January 2013, who stated:

	a.  She enlisted the applicant under the officer candidate school (OCS) enlistment.

	b.  OCS enlistment options were not eligible for an SLRP incentive at that time, but she was under the impression that OCS candidates could receive the SLRP incentive after completing OCS.

	c.  She personally informed the applicant that he would be eligible for the SLRP incentive at the time of commissioning.

	d.  He made it clear to her during his enlistment process that getting the SLRP incentive was very important to him and she assured him that he would be eligible for this benefit through OCS.

	e.  She personally tried to fix the problem that she created, but she has not been able to get the applicant the SLRP incentive that she promised.

	f.  The applicant followed her directions and more than deserves what was verbally promised to him during his enlistment process.

6.  He also provided a memorandum from his commanding officer, dated 12 January 2013, who stated:

	a.  The applicant provided sufficient evidence to conclude the SLRP addendum was improperly executed and a delay occurred in resolving the problem.

	b.  Statements corroborate the fact the applicant may have been improperly informed regarding his eligibility for the SLRP incentive at the time of his enlistment.

7.  On 23 September 2013, NGB disapproved his request for an ETP to retain the $50,000.00 SLRP.  NGB stated:

	a.  The State Incentive Manager will terminate the incentive with recoupment.

	b.  The applicant did not contract for the proper term of service required for the incentive which violates the ARNG Chaplain, Health Professional, and Enlisted Loan Repayment Program (CHELRP) for Fiscal Year (FY) 2009.

	c.  His incentive addendum is missing the signature from the witnessing official which violates ARNG CHELRP FY09.

	d.  His incentive addendum was signed almost 1 year after the enlistment documents which violates ARNG CHELRP FY09.

	e.  The applicant did not enlist for the required 8 years to be eligible for the NPS SLRP incentive in MOS 09S according to policy.  The DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) does not contain the appropriate annex listed for the SLRP incentive.  Block 32a of the DD Form 1966 shows no evidence of an SLRP incentive being offered at the time of his enlistment.  In addition, although there is a bonus control number requested on 22 April 2010, the interactive Personnel Electronic Records Management System shows two addenda, both signed in 2011 with two different duty MOS designations, and a DD Form 4836 deemed "not a valid document for this incentive" by the State Military Personnel Office memorandum, dated 6 January 2011.

	f.  Due to the numerous aforementioned discrepancies, it cannot be fully substantiated that an incentive was offered to the applicant at the time of his enlistment.  With regard to recoupment, the Electronic Document Access System does not show any payments have been made.

8.  Additional information obtained from NGB confirms:

* the ARNG did not offer the SLRP to MOS 09S candidates in April 2010
* OCS enlistment option candidates (09S) were eligible to receive the SLRP incentive in October 2010

9.  Department of Defense Instruction 1205.21 prescribes policy, assigns responsibilities, and provides procedures for management of Reserve Component Incentive Programs.  Section 6.2 (Written Agreements) states that as a condition of receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating 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 payment of the incentive to the member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was informed he would be eligible for the SLRP upon his enlistment in the LAARNG, but his recruiter withheld his SLRP paperwork until after he received his commission.

2.  The evidence shows:

* he enlisted in the LAARNG on 27 April 2010
* the ARNG did not offer the SLRP to MOS 09S candidates in April 2010
* OCS enlistment option candidates (09S) were eligible to receive the SLRP incentive in October 2010
* he was discharged from the LAARNG on 17 March 2011 to accept a commission
* he was commissioned as a second lieutenant in the ARNG on 18 March 2011
* he signed the SLRP Addendum on 6 April 2011

3.  The applicant provided a sworn statement from his recruiter during the time in question, dated 3 January 2013, who stated:

	a.  She enlisted the applicant under the OCS enlistment.

	b.  OCS enlistment options were not eligible for SLRP at that time, but she was under the impression that OCS candidates could receive the SLRP incentive after completing OCS.

	c.  She personally informed the applicant that he would be eligible for the SLRP incentive at the time of commissioning.

	d.  During his enlistment process he made it clear to her that getting the SLRP incentive was very important to him and she assured him that he would be eligible for this benefit through OCS.

	e.  She personally tried to fix the problem that she created, but she has not been able to get the applicant the SLRP that she promised.

	f.  The applicant followed her direction and more than deserves what was verbally promised to him during his enlistment process.

4.  According to the fundamental rules of law, the Army is not liable for the erroneous actions of its officers, noncommissioned officers, agents, or employees, even though committed in the performance of their duties.

5.  Regardless of the recruiter's assurances and the applicant's efforts to meet the eligibility criteria, he is clearly ineligible for the SLRP based solely on the fact that the ARNG did not offer the SLRP to 09S candidates in April 2010 when he enlisted.  Therefore, there is no basis for granting the requested relief.

6.  If the applicant is compelled to request separation based upon a defective commission as a result of a material misrepresentation by recruiting personnel, he may submit a voluntary request for separation within 90 days.  He should therefore be released from his remaining service obligation and be allowed to resign his commission without prejudice. 

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 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)                                         AR20140009632



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ABCMR Record of Proceedings (cont)                                         AR20140009632



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