IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140010270 


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, reinstatement of eligibility and payment of his college loans under the terms of the Student Loan Repayment Program (SLRP).

2.  The applicant states he was eligible to participate in the SLRP.  However, at the time of his enlistment in the California Army National Guard (CAARNG), the service representative did not provide him a SLRP Addendum to sign prior to receiving the incentive.

   a.  In early 2009, he was approached by Sergeant R____ B____ who was working as a recruiter.  She asked him if he had collected on the SLRP.  He told her he had not.  She then verified his eligibility to receive the SLRP incentive.  In April 2009, Master Sergeant (MSG) T____ J____ informed him of everything that he needed for the SLRP; specifically, his qualifying student loan documents.  She did not tell him that he had to sign an SLRP Addendum.  He submitted his loan documents to MSG J____, she processed them, and $15,000 of his student loans were paid off under the SLRP by June 2009.  He never questioned the validity of the SLRP incentives he received because he was told that he was eligible to receive them.

   b.  He adds that according to the Army National Guard (ARNG) Fiscal Year (FY) 2009 Selected Reserve Incentive Program (SRIP), he was eligible to participate in the SLRP when he received the incentive.  Specifically, he did not contract for more than $50,000, the loans that were paid off were qualifying student loans, he was assigned to the 330th Military Police (MP) Company (a Modification Table of Organization and Equipment unit), and he extended his enlistment until March 2016.

   c.  According to a Department of Defense (DOD) memorandum, subject: Repayment of Unearned Portions of Bonuses, the Secretary of the Army may relieve a service member from repayment if recoupment is contrary to personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States.  He states he believes that to hold him completely responsible for the mistakes made by the CAARNG would be against equity and good conscience.  He points out that he was not told he was required to sign an addendum in order to receive the SLRP incentive and his loan documents were submitted to support his eligibility.  In addition, he served honorably and has completed the terms of his enlistment contract.

3.  The applicant provides copies of his –

* Request for Documentation Supporting [Applicant's] Incentives with Incentives Task Force Loan Repayment Audit Form and enclosures
* ARNG SRIP Policy Guidance for FY 2007, 2008, and 2009, 10 August 2007 – 30 September 2009 (Policy Number 07-06) with updates
* Student Loan Data sheets
* Prior Service Enlistment Bonus (PSEB)/SLRP Exception to Policy (ETP) Denial by the National Guard Bureau (NGB)
* DoD policy guidance memorandum, dated 21 May 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable active enlisted service in the Regular Army (RA) from 15 February 1994 through 26 January 2005.  He was awarded military occupational specialty (MOS) 19K (M1 Armor Crewman) and he attained the rank of staff sergeant (SSG)/pay grade E-6.

2.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the ARNG of the United States (ARNGUS) and CAARNG on 24 June 2005 for a period of 6 years.

3.  An NGB Form 600-7-6-R-E (Annex X to DD Form 4 – PSEB Addendum ARNGUS), pertaining to the applicant, provides the obligation and participation requirements for entitlement under the SRIP and also occasions that are a basis for suspension or termination.


   a.  A review of the PSEB Addendum shows that:

	 	(1)  the applicant indicated he had not previously received an enlistment, affiliation, reenlistment/extension bonus, or SLRP for service in the Selected Reserve;

    	(2)  he was enlisting for a 6-year PSEB and that he did not have more than 16 years of total military service; and

    	(3)  he would receive a total bonus of $15,000 for a 6-year enlistment with an initial payment of $7,500 less taxes being processed on the date that his enlistment contract took effect and a subsequent payment of $7,500 less taxes being processed on the fourth year anniversary of service in the ARNG.

   b.  Section IV (Suspension) shows, in pertinent part, "I understand I will be suspended from bonus eligibility if I enter a period of non-availability (placement in the Inactive National Guard (ING)).  Maximum periods of non-availability are: one (1) year for personal reasons and three (3) years for missionary obligations."

   c.  Section VIII (Authentication) shows the applicant placed his signature on the form on 24 June 2005.

   d.  Section IX (Certification by Service Representative) shows SSG K.C. S____ signed the form and entered the date (i.e., 24 June 2005).  This section does not show a Bonus Control Number (BCN) or that the contract was verified by the State Incentive Manager for accuracy.

4.  A review of the applicant's Official Military Personnel File failed to reveal any evidence that the applicant contracted for the SLRP.

5.  On 1 February 2008, the applicant was transferred to the ING.  He returned to the CAARNG on 7 July 2008.

6.  He was ordered to active duty as a member of the ARNGUS on 8 December 2008.  He was awarded MOS 31B (MP) on 16 February 2009.

7.  In support of his application the applicant provides the following documents:

   a.  Headquarters, CAARNG, Sacramento, CA, memorandum, dated 
23 January 2012, subject:  Request for Documentation Supporting Your Incentives with Incentives Task Force Loan Repayment Audit Form and military pay vouchers as enclosures.  It shows the CAARNG audited the applicant's SLRP incentive payments and noted discrepancies in the amount of $15,000. The Incentives Task Force noted no loan addendum or loan documents on file.  The applicant was informed of the supporting documentation required to substantiate the incentive payments, procedures for obtaining the documents, and several points of contact that could offer assistance.

   b.  An email message string, dated 17 April 2009, that shows:

    	(1)  Ms. M____ M____, Victor Valley Union High School District, Victorville, CA, informed the applicant, "Hey – so I called on your student loans and was trying to get information from you that they were asking me about the repayment…KHEAA [Kentucky Higher Education Assistance Authority] has all three pooled together and the balance right now is $24,569.61.  They gave me the address and your account number, is your social security number?  She said that they need to send a letter with the check stating that they are paying on your Federal student loans and who you are, etc.  Does this sound right?  I asked about electronic funds and she said they should be sending a check."

    	(2)  The subsequent messages discuss the five $3,000 annual loan amounts that would be payable under the SLRP since June 2005, possible methods of payment, and instructions to send promissory notes to MSG T____ J____'	s email address.

   c.  ARNG SRIP Policy Guidance for FY 2007, 2008, 2009, 10 August 2007 –
30 September 2009 (Policy Number 07-06), pages 1 and 10–12, that show this policy supersedes all previous SRIP guidance for FY 2007, 2008, or 2009 and establishes policy to administer ARNG incentives effective 1 March 2009.  The pages provided, in pertinent part, offer information on the SLRP and PSEB.

   d.  Seven pages of National Student Loan Data System for Students that show, in pertinent part, the following loans:

   Type of Loan								Amount		Origination Date
   Stafford Subsidized						$5,500		14 August 2003
   Stafford Unsubsidized					$5,000		18 August 2003
   Stafford Subsidized						$5,500		2 July 2004
   Federal Perkins							$2,500		25 August 2004
   Direct Consolidated Unsubsidized	$5,053		21 September 2009
   Direct Consolidated Subsidized		$3,177		21 September 2009

They also show KHEAA as the current guaranty agency for the applicant's loans disbursed during 2003 – 2005

   e.  Joint Force Headquarters, Office of the Adjutant General, CAARNG, Sacramento, CA, memorandum, dated 22 May 2014, subject:  Denied ETP Request – PSEB ($7,500)/SLRP ($15,000), that shows the applicant's total certified debt in the amount of $22,500 was submitted to the Defense Finance and Accounting Service on or about 13 September 2012.  As such, the matter is something that cannot be corrected by the NGB.

   f.  DOD policy guidance memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends (referred to as "pay or benefit") that established modified DOD policy guidance on repayment of pay or benefit.  It shows, in pertinent part, "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 for that pay or benefit."

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

   a.  The advisory official does not recommend administrative relief.

   b.  The advisory official states that on 25 March 2009, BCN S09030033CA was requested by the CAARNG totaling $15,000, with payment due dates listed as 24 June 2005 through 24 June 2009, for five (5) payments of $3,000 each year.  

    	(1)  The applicant does not qualify for SLRP per NGB SRIP 05-02, paragraph 5(m)(4), which states "The SLRP will be offered as an enlistment option for Non-Prior Service (NPS) enlistees who are enlisting into one of the State's identified NPS critical skill MOSs."  The applicant is ineligible since he has prior service (PS) active duty.

    	(2)  The NGB Incentives Branch identified no addendum, no enlistment document or extension agreement for no less than six years, and no loan documents in the applicant's file.

    	(3)  The advisory official recommends recoupment for erroneous payment; however, the CAARNG non-concurs with this recommendation.

   c.  The advisory official also states the applicant had an approved PSEB (BCN P059060026CA) in the amount of $15,000 and he received two payments of $7,500 on 19 August 2005 and 8 July 2009, respectively.  She notes that
NGR 600-7 (Incentive Programs), paragraph 1-19(3), shows, "Soldiers who are transferred into an MOS where they are not qualified will have 24 months to become qualified and be awarded the MOS for their position or incentives will be terminated without recoupment."  Per SRIP 05-02 eligibility requirements, the applicant did not complete MOS qualification [MOSQ] after unit reorganization; therefore, he is ineligible to receive a PSEB.

9.  On 12 December 2014, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.

10.  On 9 January 2015, the applicant provided copies of the following documents:

   a.  FY05 SRIP Policy Guidance for 14 December 2004 – 30 September 2005 (Policy Number 05-02), dated 14 December 2004, that shows, in pertinent part, the SLRP will be offered as an enlistment option for NPS enlistees who are enlisting into one of the States' identified NPS critical skill MOSs.  It also shows the SLRP is available for reenlistment or extension of ARNG Soldiers.  It does not show it is available to PS RA Soldiers.

   b.  DD Form 2789 (Waiver/Remission of Indebtedness Application), dated 
14 March 2014, that shows he requested a waiver of his $15,000 PSEB debt for which he received notification of recoupment on 28 February 2012.  It also shows in item 24 (A Debt Computation Must Accompany This Application) he claimed entitlement to a PSEB, dated 24 June 2005; he was paid $15,000; he should have been paid $7,500; and the difference was $7,500.  Item 20 (Commander's Endorsement) shows, "Service member transferred out of an MOSQ position through no fault of his own.  A review of his NCOERs [Noncommissioned Officer Evaluation Reports] show that he had a medical profile through 2007 and 2008 which would have made him MDN [abbreviation not known] and unable to go to school.  He completed MOSQ once his medical condition was resolved.

11.  Army Regulation 135-7 (Incentive Programs), in pertinent part, restricts the SLRP to those Reservists who either enlist or reenlist for a skill or unit approved by Department of the Army and disseminated to the field by a list of MOSs and units, which is updated every six (6) months.  This educational incentive may only be elected at the time of enlistment or reenlistment.

	a.  Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan which is at least a year old may then be paid in accordance with the terms of this educational enlistment incentive.

	b.  The incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility.

12.  DOD Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following:

   a.  contrary to a personnel policy or management objective;

   b.  against equity and good conscience; or 

   c.  contrary to the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his SLRP eligibility should be reinstated and he should be relieved of the debt because he was eligible to participate in the SLRP; the service representative failed to complete an SLRP Addendum at the time of his enlistment; he subsequently completed the paperwork and received payment in the amount of $15,000, but the CAARNG later determined there was insufficient documentary evidence to substantiate his SLRP payments.

2.  Records show the applicant had PS as a RA Soldier when he enlisted in the CAARNG on 24 June 2005 for a period of 6 years with a PSEB incentive.  

3.  There is no evidence of record, and the applicant fails to provide evidence, that an SLRP Addendum was completed as part of his enlistment processing on 24 June 2005.

4.  The evidence of record shows the applicant initiated action to establish a claim to an SLRP incentive nearly four years after he enlisted in the CAARNG.

5.  The evidence of record shows that ARNG SRIP Policy Guidance for FY 2009 (Policy Number 07-06) established policy to administer ARNG incentives effective 1 March 2009.  The applicant's claim to an SLRP incentive is based on an enlistment date of 24 June 2005.  Thus, SRIP Policy Number 07-06 is not applicable to the applicant's case.

6.  ARNG SRIP Policy Guidance for 14 December 2004 – 30 September 2005 (Policy Number 05-02), in effect at the time of the applicant's enlistment in the CAARNG, fails to show the SLRP was available to PS RA Soldiers.

7.  On 23 January 2012, the CAARNG Incentives Task Force audited the applicant's SLRP incentive payments and noted discrepancies in the amount of $15,000.  The applicant was afforded the opportunity to provide the necessary supporting documentation required to substantiate the incentive payments. However, based on the available evidence of record, it appears the applicant failed to provide the documentation required to substantiate the payments.

8.  DOD policy guidance allows for the repayment of unearned portions of bonuses, special pay, and educational benefits or stipends to a member who enters into a written agreement with specified conditions for receipt of a pay or benefit (emphasis added).  

9.  The evidence of record does not support the conclusion that the applicant timely executed a valid written SLRP Addendum for the SLRP incentive at the time on his enlistment in the CAARNG on 24 June 2005.  Moreover, based on the available evidence, his claim to the SLRP incentive is not substantiated.

10.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140010270



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ABCMR Record of Proceedings (cont)                                         AR20140010270



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