IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140012615 


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 an exception to policy (ETP) to retain eligibility for the Student Loan Repayment Program (SLRP) incentive for which he contracted when he enlisted in the South Dakota Army National Guard (SDARNG) on 19 September 2008.

2.  The applicant states:

* he enlisted in the SDARNG on 19 September 2008 after a 6-year break in service and contracted for the SLRP as an enlistment incentive
* on 27 September 2009, he accepted a full-time position as a military technician (MT) in the SDARNG
* prior to accepting the MT position, he specifically asked how it would impact his enlistment incentive and was advised by a supervisory human resources specialist that his incentives would not be impacted
* National Guard Bureau (NGB) Policy Memorandum NGB-EDU-09-058, dated 14 September 2009, clarified the ARNG policy regarding retention of SLRP benefits upon acceptance of an MT position
* Scenario 2 of that memorandum applies to the applicant's situation as he is an M-Day (mobilization-day) Soldier under a 6-year by 2-year initial contract for SLRP benefits and accepted an MT position
* in that scenario, Soldiers will continue to receive SLRP payments up to the original expiration date of the SLRP contract
* additional guidance was promulgated on 1 October 2009 in NGB Memorandum NGB-EDUi 1.1 regarding entitlement to the Chaplain, Health Professional, and Enlisted Loan Repayment Program (CHELRP)
* according to this guidance, entitlement to CHELRP payments existed if Soldiers remained serving under their initial contract for which the CHELRP was awarded
* based on this guidance, the applicant had no reason to believe his student loan payments would not be made
* on 12 December 2012, he was notified by the SDARNG Education Office that he was identified as an MT with a date of hire on or after 17 April 2009 not entitled to SLRP continuation for the duration of his contract
* he was advised to request relief from recoupment of SLRP payments received after his date of hire as an MT
* on 18 April 2013, he requested an ETP allowing for the continuation of SLRP benefits through the duration of his original contract without recoupment
* on 12 July 2013, the NGB denied his ETP request based on his voluntary transfer out of his contracted military occupational specialty (MOS) and acceptance of an MT position
* of the five different memoranda he read on this topic, none of them state SLRP benefits should be terminated and payments recouped
* he received a portion of the SLRP payments and is entitled to the continued payments according to the guidance in effect at the time
* two MT coworkers are in similar situations, one of whom applied to the Army Board for Correction of Military Records (ABCMR), and both are keeping their SLRP benefits

3.  The applicant provides:

* self-authored statement
* NGB memorandum, ARNG-HRM-13-003, dated 14 March 2013
* NGB memorandum, ARNG-HRM-12-021, dated 20 July 2012
* NGB memorandum, NGB-EDU-10-011, dated 25 February 2010
* NGB memorandum, NGB-EDU-09-058, dated 14 September 2009
* NGB memorandum, NGB-EDU-09-001, dated 29 October 2008

CONSIDERATION OF EVIDENCE:

1.  After a 6-year break in ARNG service with military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic), the applicant enlisted in the SDARNG on 19 September 2008 for a period of 6 years and assignment to the 216th Engineer Detachment (Fire Fight Team).

2.  The Annex L to his DD Form 4 (Enlistment/Reenlistment Document) – SLRP Addendum) shows he was eligible for the SLRP under the Selected Reserve Incentive Program (SRIP).  The applicant acknowledged or indicated he understood:

* he was not enlisting for an Active Guard Reserve (AGR) tour (under Title 10 or Title 32) nor was he enlisting for an MT position
* he held the primary MOS for the position for which he was enlisting
* he was enlisting for MOS 63B which is a critical skill authorized for the SLRP
* he had two loans existing in the amount of $20,326 and the total amount of repayment for qualifying loans would not exceed $20,000
* the portion that might be repaid annually on any qualifying loan would not exceed 15 percent of the total of all loans or $500, whichever is greater
* payment would be processed on the anniversary date of his enlistment for each satisfactory year of service
* his SLRP eligibility would be terminated if he voluntarily transferred out of his contracted MOS or accepted an MT position or Title 10 or Title 32 AGR tour

3.  SDARNG Orders 308-508, dated 3 November 2008, released the applicant from assignment to the 216th Engineer Detachment (Fire Fight Team) and transferred him to the 129th Mobile Public Affairs Detachment to serve in duty MOS 46R (Public Affairs Broadcast Specialist) effective 27 October 2008 per his request.

4.  From 12 November 2008 through 27 February 2009, he attended the Defense Information School Basic Combat Correspondent Course (DINFOS-BCC) at Fort Meade, Maryland.  SDARNG Orders 077-527, dated 18 March 2009, awarded him MOS 46R and withdrew MOS 63B effective 27 February 2009.

5.  By the applicant's own admission, he accepted a full-time MT position with the SDARNG on 27 September 2009.  Documentation pertaining to this position is not available for review.

6.  SDARNG Orders 120-515, dated 30 April 2010, appointed the applicant as an officer candidate and awarded him MOS 09S with an effective date of 30 April 2010.  SDARNG Orders 120-516 issued the same day attached him to the 1st Battalion, 196th Infantry Regiment, for purposes of attending Officer Candidate School effective 1 May 2010.  NGB Form 22 (National Guard Report of Separation and Record of Service) shows he was discharged as an enlisted Soldier from the SDARNG on 19 August 2011.  SDARNG Orders 234-701, dated 22 August 2011, appointed him as a commissioned officer in the SDARNG on 20 August 2011.

7.  On 12 December 2012, the applicant was notified by the South Dakota National Guard Education Office that he was identified as an MT with a date of hire on or after 17 April 2009 who was ineligible to continue on the SLRP for the duration of his original contract term.

8.  He subsequently requested an ETP for retention of SLRP benefits without recoupment on 18 April 2013.  His ETP packet is not available for review.

9.  On 12 July 2013, NGB denied the applicant's request for an ETP to retain the $20,000 SLRP for the discrepancies listed below.  The State Incentive Manager will terminate with recoupment effective the date of transfer out of contracted MOS.

* the applicant accepted an MT position while receiving an incentive which violates ARNG SRIP 07-06 (10 August 2007 to 28 February 2009)
* the applicant voluntarily transferred out of the contracted MOS which violates ARNG SRIP 07-06 (10 August 2007 to 28 February 2009)
* the applicant's contract/agreement details his date of enlistment as 19 September 2008, his contracted loan amount as $20,000, his contracted MOS as 46R, and his current MOS as 46A
* the applicant may file a claim with the ABCMR if he believes an error or injustice exists

10.  ARNG SRIP Policy Number 07-06, dated 10 August 2007, paragraph 14, states that if an entitlement to an incentive is terminated for any reason before the fulfillment of the service described in the member's written agreement, that member shall not be eligible to receive any further incentive payments except for payments of service performed before the termination date.  There is also no provision for the proration of any recoupment action.

11.  NGB Policy Memorandum 12-021, dated 20 July 2012, subject:  Termination of Incentive Contracts for AGR and MT Personnel, reiterated the termination of eligibility for incentives upon acceptance of an MT or AGR position and clarifies disposition of contracts executed after 8 October 2008.  It states incentive payments made for service performed after the contract termination date are not authorized and are subject to recoupment.  This includes payments to AGR and MT personnel made between 9 October 2008 and 3 November 2010 through a misrepresentation of authority published in subparagraphs 1d through 1g of this memorandum.  The ARNG does not have the authority to make these payments and previous payments were erroneous.  Recoupment was to be initiated within 30 days of the publication of this memorandum.

12.  NGB Policy Memorandum 13-003, dated 14 March 2013, subject:  Disposition of SLRP Contracts for Select AGR and MT Personnel, rescinded the following memoranda effective this date:  EIOM-EDU-09-058, dated 14 September 2009; EIOM 12-021, dated 20 July 2012, subject:  Termination of Incentives Contracts for AGR and MT Personnel; and EIOM 12-022, dated 27 July 2012, subject:  Updated Guidance for Termination of Incentives Contracts for AGR and MT Personnel.  The memorandum directed ARNG Personnel Programs, Resources, and Manpower staff of all States to identify all SLRP contracts and those Soldiers accepted in an AGR or MT position between 18 April 2009 and 3 November 2010.  These personnel, if eligible for ETP consideration, were to be processed for an ETP according to established standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted an ETP to retain the SLRP incentive was carefully considered.

2.  The applicant enlisted in the SDARNG on 19 September 2008 for critical skill MOS 63B, not MOS 46R as the 12 July 2013 NGB memorandum denying his ETP erroneously states.  He agreed to serve a 6-year term in MOS 63B and, in exchange, he was authorized the SLRP incentive.

3.  His SLRP addendum stated his SLRP eligibility would be terminated if he voluntarily transferred out of his MOS and/or accepted a Title 10 or Title 32 MT or AGR position.

4.  On 27 October 2008, in contravention with the enlistment contract he signed 38 days earlier, he was transferred to the 129th Mobile Public Affairs Detachment to serve in duty MOS 46R per his request.  After attending DINFOS-BCC from 12 November 2008 through 27 February 2009, he was awarded MOS 46R and MOS 63B was withdrawn.

5.  By the applicant's own admission, he accepted a position as an MT with the SDARNG on 27 September 2009.  Furthermore, he was discharged as an enlisted Soldier from the SDARNG and he was appointed as a commissioned officer in the SDARNG on 20 August 2011.  He did not fulfill any of the stipulations of his enlistment contract allowing for his SLRP eligibility.

6.  Several policy memoranda and/or changes to payments of enlistment incentives have been published throughout the years since the applicant enlisted.  The key factors in his case remain that he voluntarily transferred out of his contracted critical skill MOS and accepted an MT position all during the contracted period in violation of ARNG SRIP 07-06 and his enlistment contract at the time he signed it.

7.  He was entitled to submit an ETP request to retain the SLRP benefit and did so, but the ETP request was denied by the NGB approval authority based on the aforementioned factors.  Termination of the SLRP incentive with recoupment became effective the date the applicant transferred out of his contracted MOS.  As a result, termination of the SLRP incentive with recoupment action is warranted.

8.  The applicant did not show an error or an injustice.  As such, there is insufficient evidence to grant him relief in this case.

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)                                         AR20140012615



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ABCMR Record of Proceedings (cont)                                         AR20140012615



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