IN THE CASE OF:  	  

		BOARD DATE:  7 May 2015	  

		DOCKET NUMBER:  AR20140013385 


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 cancellation of recoupment of his Officer Accession Bonus (OAB) in the amount of $6,000.00 and cancellation of recoupment of his Student Loan Repayment Program (SLRP) incentive in the amount of $12,000.00.

2.  The applicant states he relied on the California State Incentives Manager who led him to believe he was eligible for all funds received.

3.  In a supplemental memorandum to the Army Board for Correction of Military Records, dated 5 August 2013, he states:

	a.  Through the California Army National Guard (CAARNG) Incentives Task Force (ITF) audit process, he was informed he was not eligible for the SLRP because his lender was paid for years 1997-2000 which is outside the statute of limitations, there was no valid loan documentation on file, and he was paid an OAB for overlapping periods.

	b.  His student loan printout shows he had $11,000.00 in eligible student loans dispersed on 25 September 2003 ($5,500.00) and on 25 August 2004 ($5,500.00).  His lender was paid $12,000.00 on his behalf on 14 March 2008.

	c.  Through the CAARNG ITF audit process, he was also made aware he was eligible to contract for his OAB, but not eligible for payment because there was no OAB addendum on file and he was never in a qualified position.  He was assigned to a non-duty military occupational specialty (MOS) qualified (DMOSQ) position due to military needs.  It was never his intent not to serve in an MOS 42B (Personnel Systems Management) position.  Due to the limited position vacancies, commander's guidance, and the needs of the organization, he was not assigned to an MOS 42B position.

	d.  He was informed he was eligible for the SLRP by the State Incentives Manager.  He relied on the subject matter expert and his recruiter.  Equity dictates that he should keep the SLRP payments as they were paid through no fault of his own and without knowledge that they were improper.

	e.  He was commissioned as an officer on 3 November 2005.

	f.  He requests relief from recoupment of the $6,000.00 OAB and preparation of an OAB addendum for the date he graduated from the officer basic course (OBC) on 1 August 2006.

	g.  Through the CAARNG ITF audit process, he also was informed that Soldiers cannot receive an OAB and the SLRP for overlapping periods.

4.  The applicant provides nine enclosures outlined on page 2 of his memorandum, dated 5 August 2013.  He also provides:

* letter from the CAARNG, dated 30 September 2013
* legal assistance opinion from the CAARNG, dated 9 October 2013
* leave and earnings statements

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant enlisted in the ARNG on 23 July 2000.  He was discharged from the ARNG and commissioned as a second lieutenant (2LT) in the U.S. Army Reserve on 27 September 2005.  He was appointed as a 2LT in the ARNG on 3 November 2005.

2.  The available records do not contain a written agreement for an OAB or SLRP.

3.  Records show he received $12,000.00 in SLRP benefits and a $6,000.00 OAB.

4.  He completed OBC on 1 August 2006.

5.  He was promoted to captain effective 1 June 2012.

6.  He provided a memorandum from the CAARNG, dated 30 September 2013, which states:

	a.  The ITF audited the applicant and discovered that the SLRP and OAB addenda were missing from his personnel records.  The audit revealed the applicant was non-DMOSQ at the time of his commission when he received SLRP and an OAB.  There is no evidence of fraud on the part of the applicant.

	b.  The applicant enlisted in the Army on 23 July 1997 and transferred to the CAARNG and signed a 6-year enlistment/reenlistment document on 5 June 2000.  He was commissioned on 3 November 2005 and was awarded MOS 42B on 2 August 2006.  He was transferred to an MOS 92A position on 28 September 2006 and remained in the MOS 92A position until transferring to the Nevada ARNG on 3 August 2010.

	c.  An SLRP addendum was never signed.  The applicant received $12,000.00 in SLRP payments on 14 March 2008 in four installment payments of $3,000.00 each.  He provided a student loan printout showing he had $11,000.00 in Federal loans.  However, the applicant signed his enlistment/reenlistment document on 5 June 2000.  His loans were established after the date he should have signed a SLRP addendum.  Therefore, even if the applicant had properly contracted for the SLRP, he did not acquire these loans before his enlistment in the CAARNG.

	d.  Per Selective Reserve Incentive Program (SRIP) policy, an amount of $10,000.00 plus interest in SLRP funds was only offered to prior-service enlistees who had served the last 3 consecutive years in an active status in a unit of the ARNG.  The applicant committed for a term of 6 years in the CAARNG; however, his active prior service status was not in an ARNG unit.  He was in the Active Component.  Furthermore, the four $3,000.00 SLPR payments were applied to Fiscal Years 1997, 1998, 1999, and 2000 before he acquired his loans.  Also, even if his loans were eligible for SLRP, he received $2,000 above the program limit.

	e.  To receive an OAB, the officer must complete a contract at the time of commissioning.  He received $6,000.00 on 15 August 2006; however, an addendum for this incentive was never coded.  Further, although he was awarded MOS 42B on 2 August 2006, he was never assigned to a qualifying position.

	f.  The applicant received payment of SLRP on 14 March 2008, but he should have contracted for it on 5 June 2000 when he signed his CAARNG enlistment document for a term of 6 years.  He was commissioned on 3 November 2005 which is when he should have signed an addendum for his OAB.  This date falls during the time frame of his 6-year commitment period necessary to receive SLRP.  A person may not receive an affiliation bonus or accession bonus for the same period of time.  Since the applicant was not entitled to SLRP, his only option is to seek relief from recoupment.  Therefore, he is eligible for an OAB, but his military record would need to reflect an addendum to make him eligible to keep his OAB.  Otherwise, his only option is relief from recoupment for the bonus.

7.  He also provided a memorandum from Legal Assistance, CAARNG, dated 9 October 2013, which states:

	a.  The applicant relied on the subject matter expertise of the CAARNG State Incentives Manager at the time who informed him he was eligible for SLRP and approved the SLRP payments.

	b.  The applicant did sign an OAB addendum, but neither he nor the Army has a copy of it.  The applicant was placed in another MOS to meet the needs of his unit.  Therefore, repayment of the OAB should not be sought.

	c.  The applicant entered into both an OAB and SLRP contract with the CAARNG.  He served for the agreed upon time.  He lived up to his part of the bargain.  For the U.S. Government to recoup those incentives and not fulfill its part of the bargain is contrary to the best interest of the United States.  The purpose of incentives is to bring Soldiers in or keep Soldiers in the military.  To that end, the incentives served their purpose to the military.  It is not in the best interest of the United States to permit its military to entice Soldiers to enter or remain in the military through incentives, then pull the rug out from under the Soldier and recoup those same incentives when receipt of those incentives was made through errors of the military and through no fault of the Soldier.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau.  NGB recommended approval of the applicant's request.  The opinion states:

	a.  The applicant enlisted in the CAARNG for 6 years on 5 June 2000.  Although an SLRP addendum was never singed or can't be produced, he relied on the subject matter expertise of the CAARNG State Incentives Manager at the time of his enlistment who informed him he was eligible for the SLRP and approved the SLRP.

	b.  According to a memorandum from the CAARNG, dated 9 October 2013, the applicant did sign an OAB addendum.  However, neither he nor the Army has a copy of it.  Pursuant to SRIP policy, a newly-commissioned officer must agree to serve for a period of not less than 6 years on active drilling status in a critical skill.  Although the applicant was not assigned to an MOS 42B position at the time of his OAB, this was done intentionally by his unit to meet unit needs.  The applicant was placed in another MOS to meet the needs of his unit and therefore should not be subject to recoupment of his OAB.

	c.  The applicant acted in good faith and reasonably relied on the expertise of both the CAARNG State Incentives Manager and his recruiter in receiving both the SLRP and OAB through no fault of his own.

	d.  An email from the ARNG Incentives Branch supports the request to waive recoupment of the OAB payment.

	e.  The CAARNG concurs with this recommendation.

9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

10.  The Office of the Under Secretary of Defense published a memorandum, dated 21 May 2008, subject:  Repayment of Unearned Portions of Bonuses, Special Pay, and Educational Benefits or Stipends.  This memorandum states, "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.  The Deputy Secretary of Defense policy memorandum recognized that, at the time, members were subject to statutory repayment . . . for any unearned portion of a pay or benefit, as appropriate.  However, it was also understood there may be circumstances that support the need to refrain from taking such action."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received $12,000.00 from the SLRP and $6,000.00 for an OAB.

2.  The SLRP and OAB payments he received were both for the same contractual period and the law clearly states a service member is not eligible to receive the SLRP and OAB simultaneously.

3.  He contends it was his understanding that he was eligible to contract for the OAB and SLRP based on information provided to him by his recruiter and the CAARNG State Incentive Manager.  This claim is most likely true because the incentives were processed by the CAARNG and paid.  The contract addenda 
not being retained by the State is not the fault of the applicant since both incentives were processed and paid.

4.  Although there is no evidence of record showing he signed a written agreement for an OAB or the SLRP, it appears there may have been an error on the part of his recruiter and the CAARNG State Incentive Manager since both incentives were processed and paid to him or on his behalf.

5.  It appears the CAARNG erroneously allowed him to contract for two incentives simultaneously.  Since the applicant did absolutely nothing wrong and has upheld his service commitment, it would be appropriate to correct his records as a matter of equity by cancelling recoupment of his SLRP in the amount of $12,000.00 and cancelling recoupment of his OAB in the amount of $6,000.00.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by showing the applicant requested cancellation of recoupment and the Department of the Army approved his request for cancellation of recoupment of his SLRP incentive in the amount of $12,000.00 and cancelling recoupment of his OAB in the amount of $6,000.00.



      ___________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)                                         AR20140013385



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ABCMR Record of Proceedings (cont)                                         AR20140013385



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