IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140012904 


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 his Student Loan Repayment Program (SLRP) incentive.

2.  The applicant states his SLRP payments were terminated as a result of his participation in the Simultaneous Membership Program (SMP) during Training Year 2009.  He was informed that he could maintain SLRP eligibility if he stayed in his reenlistment contract for one year.  Additionally, he was told that he was grandfathered into the SLRP and that signing a one-year Reserve Officers’ Training Corps (ROTC) contract would not jeopardize SLRP eligibility.  He refers to his rebuttal memorandum in response to the denial of his request for an ETP and contends that had he known that his ROTC membership was jeopardizing his SLRP eligibility he would have obtained his commission via Officer Candidate School (OCS) and found another means to pay for graduate school.  He completed graduate school and schooling to become duty military occupational specialty qualified (DMOSQ) after a 2008 deployment in support of Operation Iraqi Freedom (OIF) and before a 2011 deployment in support of Operation Enduring Freedom (OEF).  He consulted administrative/SLRP subject matter experts in order to ensure his SLRP eligibility remained in good standing.

3.  The applicant provides:

* three memoranda pertaining to an ETP to retain SLRP eligibility
* email correspondence exchange between an incentive manager (IM) and the applicant's Battalion Career Counselor (CC)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Ohio Army National Guard (OHARNG) on 27 December 2001 and held MOS 11B (Infantryman).  He was promoted to the rank/pay grade of sergeant (SGT)/E-5 on 15 December 2006.  He deployed to Iraq/Kuwait in support of Operation Iraqi Freedom from 1 April through 16 December 2008.

2.  The applicant provides email correspondence exchanged between an IM and the applicant's Battalion CC on 9 June 2008, Subject:  Officer Loan Repayment.  There is no specific mention of the applicant by name in this correspondence.

	a.  The IM sent the following email to the CC:  "If he contracts for SLRP as an enlisted Soldier - and stays in the contract for 1 year before accepting the commission - the SLRP will carry over when he becomes an officer (we would pay the remainder of that SLRP contract and no new one will be issued)."

	b.  The CC responded to the IM as follows:  "He(re) is what the Promissory Note from Direct Loans looks like.  It does not state the amount of the loan.  The Soldier can print off his current statement and attach it to this.  Will this work to have their SLRP started?"

	c.  The IM responded to the CC as follows:  "Yes this would work along with the statement - We really need something from them with everything on it - Seeing that it will be a whole year by the time the first payment is due - We have time to get that added to the Soldier's file."

3.  On 11 June 2008, while holding the rank/grade of SGT/E-5 and MOS 11B, the applicant extended his enlistment.  His record contains the following documents which reflect the terms of his enlistment extension contract and bear his signature:

	a.  DA Form 4836 (Oath of Extension or Reenlistment):

		(1)  item 6 (Unit of Assignment) shows he executed the contract while deployed to Kuwait and assigned to A Company, 1st Battalion, 148th Infantry Regiment, Unit Identification Code (UIC) WPN0A0.  It also shows he was assigned both an SLRP Control Number and a Bonus Control Number.

		(2)  item 8 (Provisions and Computation of this Extension) shows he extended his enlistment for a period of 6 years which established his new expiration term of enlistment as 11 June 2014.
	b.  National Guard Bureau (NGB) Form 600-7-5-R-E (Annex L to  DD Form 4 - SLRP Addendum - Army National Guard of the United States (ARNGUS)).  The stated purpose of this form was to explain obligations and participation requirements for entitlement under the SLRP and to ensure his agreement that these conditions are a matter of record.  The stated routine use of this form was to confirm requirements of obligation and participation requirements for entitlement under the SLRP, occasionally as a basis for suspension or termination.

		(1)  Section II (Eligibility), item 3 shows he was a Soldier in the ARNG and was reenlisting/extending for a minimum term of service of 6 years in the ARNGUS.  He indicated and/or acknowledged that:

* he held to primary MOS for the position for which he was reenlisting/extending in A Company, 1st Battalion, 148th Infantry Regiment, WPN0A0, which was a critical UIC authorized for SLRP
* he had 3 loans existing in the amount of $18,331.31
* the SLRP is only authorized for one reenlistment/extension period

		(2)  Section V (Termination) shows the applicant acknowledged his understanding that his SLRP eligibility would be terminated, in part, if he:

* accepted a commission as an officer or an appointment as a warrant officer
* participated in SMP/ROTC advanced course or received an ROTC scholarship

	c.  Documentation showing he had a Master Promissory Note from the William D. Ford Federal Direct Loan Program for tuition at the University of Toledo, Toledo, OH.

4.  The applicant's record contains a memorandum rendered by the Administrative Officer, Headquarters, 1st Battalion, 148th Infantry Regiment, Subject:  SMP Cadet Acceptance Letter, dated 13 April 2009.  This memorandum shows the applicant was accepted as an SMP Cadet based on the opinion that he would be an asset to the unit and the United States Army.

5.  His record contains a DA Form 597-3 (Army Senior ROTC (SROTC)) Scholarship Cadet Contract), dated 3 September 2009.  The principal purpose of this form was to specify the contractual agreements and obligations and to document the applicant's contracting in the Army SROTC Scholarship Program.


	a.  Part I (Agreement of the Department of the Army (DA)) shows he contracted for a period of 2 years in return for, in part, fully funded tuition and fees, book and laboratory expenses at a flat rate of $1,200, and a monthly subsistence allowance.

	b.  Part II (Agreement of Scholarship Cadet Contracting in the SROTC Program), item 2a (General Cadet Agreement) shows that as a condition for membership in the Army ROTC Program, the applicant agreed to enlist in the Reserve Component of the U.S. Army with an assignment to the U.S. Army Reserve (USAR) Control Group (ROTC) for a period prescribed by the Secretary of the Army.

6.  His record contains page 2 of an NGB Form 594-1-R (Annex to DD Form 4/DA Form 4836 - ARNG SMP Agreement) which bears his initials.  Part C (For Current ARNG Members Electing Participation in SMP) of this form shows that as a current ARNG member, the applicant's original enlistment/reenlistment agreement was to be held in abeyance in order that he could participate in the SMP.  As a participant in the SMP, he understood that upon acceptance into the SMP, he was not eligible to continue in the ARNG Incentive Program and would be entitled to further incentive payments.  Acceptance into the SMP did not constitute a condition where recoupment of incentive payments is required.

7.  On 15 August 2001, he was honorably discharged from the OHARNG in the rank/pay grade of SGT/E-5 in order to accept an appointment as a commissioned officer.  The NGB Form 22 (Report of Separation and Record of Service) issued at that time shows he held MOS 11B.

8.  On 16 August 2010, he was appointed as a second lieutenant (2LT/O-1) in the OHARNG in the Military Intelligence (MI) basic branch.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 148th Infantry Regiment.

9.  He was ordered to active duty in support of Operation Enduring Freedom on 15 October 2011 and deployed to Afghanistan from 6 January through 23 July 2012.  He was promoted to first lieutenant (1LT/O-2) on 16 February 2012.

10.  The applicant's record contains, and he also provides, a memorandum rendered by the Deputy G1, ARNG, NGB, Arlington, VA, on 4 October 2013 in response a request for ETP for the applicant to retain SLRP eligibility.  This memorandum shows the applicant's request for an ETP to retain the SLRP for the discrepancies listed below was approved.

	a.  (The applicant) did not sign the SLRP incentive addendum which violates ARNG Selective Reserve Incentive Program (SRIP) guidance for Fiscal Year 2007 (FY07) 10 August 2007 - 28 February 2009 (Policy Number 07-06).

	b.  (The applicant's) SLRP incentive addendum is obsolete which violates ARNG SRIP 07-06.  The State IM will assist the unit of assignment in completing the applicable addendum and labeling it "CORRECTED COPY" and explaining the terms and conditions of the incentive.  The CORRECTED COPY will then be uploaded to the appropriate database.

	c.  The rationale for the decision was:

"Although (the applicant) is currently serving in a different MOS for which contracted, he did not receive the Officer Accession Bonus and is eligible to retain SLRP for the duration of the original contracted term.  A review of DA Form 4836 supports an incentive being offered at the time of agreement/contract.

(The applicant) accepted an incentive offer in good faith and has otherwise fulfilled the obligations under the contract as of the date of this request.  Therefore, withholding payment of this incentive would be against equity and good conscience and contrary to the best interest of the Army."

11.  On 2 December 2013, the applicant submitted a memorandum Subject:  SLRP Denial Rebuttal Letter for (the applicant) to the OHARNG State IM.  He stated that his SLRP was approved on 11 June 2008 and denied during the FY12 and FY13 submission process.  SLRP payments were previously approved for FY09, FY10 and FY11, FY12 and FY13 payments were not processed on time as a result of paperwork miscues during a deployment in support of Operation Enduring Freedom.  During the Tax Year 2013 (TY13) SLRP submission process, FY12 and FY13 SLRP payments were rejected as a result of TY09 SMP participation.  He ensured he could keep the SLRP upon becoming an officer through the SMP.  The SLRP was used to pay for his undergraduate degree expenses and that the SLRP was never used to pay for college expenses during the same duration as the one year Guaranteed Reserve Forces Duty (GRFD) scholarship.  During the ROTC enrollment process, he was informed by an ROTC liaison that the GRFD scholarship was different than a typical 4-year ROTC contract and that the GRFD scholarship could be used in order to pay for one year of graduate school without jeopardizing the SLRP.  He was told that NGB Form 594-1-R, Section C Line A would only apply to incentive bonuses and that his SLRP would "carry over" since he stayed in his reenlistment contract for one year.  If there had been a conflict with the SMP or GRFD that would have resulted in jeopardizing the SLRP, he would have found a different approach to pay for one year of graduate school and commission before a 2011-2012 deployment in support of Operation Enduring Freedom.  Withholding further SLRP payments would be against equity, good conscience and be contrary to the best interest of the Army.  He accepted an incentive offer in good faith and has otherwise fulfilled the obligations under the contract.  Although he is currently serving in a different MOS than he previously contracted for, he has continued to remain in good standing and has remained loyal to his unit and the Army throughout his career.

12.  On 3 July 2014, the Deputy G1, ARNG, NGB, rendered a memorandum Subject:  Second Review Request for ETP for SLRP (the applicant) (This ETP Supersedes the ETP request dated 4 October 2013).  The Deputy G1 denied the request for an ETP allowing the applicant to retain the SLRP and directed the State IM to terminate the incentive with recoupment effective the date in block F (Date Education Commences) of DA Form 597-3 (12 January 2009).  The rationale for this decision was based on the facts that the applicant:

	a.  entered an SMP/ROTC scholarship program, which violates the provisions of National Guard Regulation 600-7 (SRIPs);

	b.  did not sign the SLRP incentive addendum, which violates the provisions of ARNG SRIP guidance Policy Number 07-06;

	c.  completed an obsolete SLRP incentive addendum, which was not required under the provisions of ARNG SRIP guidance Policy Number 07-06; and

	d.  is currently serving in a different MOS for which he contracted, due to accepting a commission.

13.  On 16 July 2014, the applicant was promoted to the rank/pay grade of captain (CPT)/O-3.

14.  ARNG SRIP Guidance for FY 2007, 10 August 2007 - 31 March 2008 (Policy Number 07-06), dated 10 August 2007, established policy to administer ARNG incentives for the period effective 10 August 2007 through 31 March 2008 unless otherwise noted, superseded or suspended.  This policy memorandum, in part, stated "Soldiers who contract into SMP/ROTC program may not (emphasis added) continue to receive SLRP."



15.  ARNG SRIP Guidance for FY 2007, 2008, and 2009 10 August 2007 - 30 September 2009 (Policy Number 07-06) with Updates, Updated 17 February 2008, (emphasis added), established policy to administer ARNG incentives for the period effective 1 March 2009.  This policy memorandum revised the previous policy, in part, by stating "Enlisted Soldiers receiving SLRP will remain eligible while attending OCS...or after contracting into the ROTC/SMP.  Soldiers will also remain eligible upon commissioning or appointment, subject to the original restriction that their SLRP will be paid within the same period established in their original enlistment documents."

16.  DODI 1205.21 prescribes policy and procedures for management of the Reserve components incentive programs to include the SLRP.  Paragraph E8.1.1.4 states eligibility under the SLRP continues unless an individual transfers to an ineligible military specialty.

DISCUSSION AND CONCLUSIONS:

1.  On 11 June 2008, while holding the rank/grade of SGT/E-5 and MOS 11B, the applicant extended his enlistment for his current MOS and unit.  The SLRP addendum he signed at that time clearly stated that he had to hold the MOS he was reenlisting/extending in.  This document also clearly stated that his SLRP eligibility would be terminated in the event he participated in SMP/ROTC advanced course, received an ROTC scholarship, or accepted a commission as an officer.  

2.  In accordance with DODI 1205.21, a prior service member is ineligible for SLRP retention if he/she transfers to an ineligible military specialty.  

3.  Evidence shows the applicant voluntarily submitted an application to enter the SMP/ROTC, received an ROTC scholarship, and was subsequently appointed as a 2LT in the OHARNG in violation of his prior service enlistment contract. 

4.  Evidence also shows that although the SRIP SLRP policy was later revised, it was not retroactive to the date of the applicant's enlistment extension.

5.  Notwithstanding the applicant's contentions, the record fully supports the NGB's decision to terminate the applicant's SLRP incentive with recoupment.  






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)                                         AR20140012904





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ABCMR Record of Proceedings (cont)                                         AR20140012904



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