IN THE CASE OF:  	  

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140014091 


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:

	a.  An exception to policy (ETP) to retain eligibility for the Enlisted Loan Repayment Program (ELRP) incentive, (formerly titled Student Loan Repayment Program (SLRP) and now a subset of the Chaplain, Health Professional, and Enlisted Loan Repayment Program (CHELRP)).

	b.  Should he not be allowed to retain eligibility, to be absolved (debt waiver) from repaying the ELRP payments he received which have already been paid to his lending institution.

2.  The applicant states:

	a.  The National Guard Bureau (NGB) denied his request for an ETP to retain his eligibility for the ELRP incentive because:

* he contracted for the incentive while in a Military Technician (MilTech) status (Federal or State civilian)
* accepting the ELRP incentive while a MilTech violates Department of Defense Instruction (DoDI) 1205.21 (Reserve Component Incentive Programs Procedures)

	b.  He was led to believe Army National Guard (ARNG) Soldiers to include those in MilTech positions were eligible for enlistment incentives when they were serving on Title 10, U.S. Code deployment orders.  He believes this to be the case because when on this type of order MilTech personnel are in a "no-pay technician" status.  

	c.  While he was considering extending his term of enlistment, he was unsure of his eligibility for ELRP, so he asked his Retention Noncommissioned Officer (NCO) to verify his eligibility.  She emailed the Incentive Manager for his State and the response was affirmative.  The State Incentive Manager added the applicant would be able to retain the ELRP incentive even when he returned to his dual-status position.  Based on that belief, the applicant extended his enlistment for 6 years. 

	d.  He feels it is unjust that he has lost eligibility and is now required to repay the ELRP incentive he received particularly given the fact he was assured by the State Incentive Manager he was authorized to receive it.  He contends the ELRP is part of his contract and he should not be penalized for the State Incentive Manager's error.

3.  The applicant provides:

* statement, dated 30 July 2014, from the applicant's Retention NCO
* email correspondence with the State Incentive Manager
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Annex L (Enlisted Loan Repayment Program Addendum - Army National Guard of the United States) to DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 3 September 2010
* four printout pages titled National Student Loan Data System (NSLDS) for Students
* memorandum for record from the ELRP Incentive Support NCO, dated 29 August 2012
* letter by the applicant addressed to his Retention NCO, dated 28 June 2013
* memorandum, dated 9 January 2014, from NGB subject:  Request for ETP for ELRP (applicant)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Missouri ARNG (MOARNG) on 28 April 1997.  After completing initial training, he was awarded military occupational specialty 15D (Aircraft Powertrain Repairer).  He is currently a member of the MOARNG and serving in the rank/grade of staff sergeant (SSG)/E-6 and concurrently as a MilTech.  (A requirement for his civilian employment is active membership in the MOARNG.)

2.  Orders 328-140, dated 24 November 2009, issued by Headquarters, MO National Guard, Joint Force Headquarters, ordered the applicant to active duty on 4 January 2010, as a member of his Reserve Component Unit under the provisions of Title 10, U.S. Code, section 12302.   

3.  Orders SL-011-0091, dated 11 January 2010, issued by U.S. Army Installation Management Command, Headquarters U.S. Army Garrison, Fort Sill placed the applicant on temporary change of station status in support of Operation Enduring Freedom with an onward movement date of 9 February 2010 and duty in Kuwait. 

4.  His records contain a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) showing on 3 September 2010, and while in Kuwait the applicant extended his initial enlistment agreement dated 28 April 1997.  He agreed to serve an additional 6 years.  Also in his records is a document titled Annex L to DD Form 4.  In Section II (Eligibility), item 2b, the applicant acknowledged he was:

not enlisting/reenlisting/extending to qualify for a Military Technician or Active Guard Reserve (AGR) position where membership in a Reserve component is a condition of employment

5.  The applicant was released from active duty and returned to the MOARNG on 21 January 2011.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served 1 year and 18 days of net active creditable service for that period.  The narrative reason for separation was completion of required active service.  

6.  The applicant provides:

	a.  A statement, dated 30 July 2014, from the applicant's Retention NCO, which essentially states:

* in August 2010, she notified the applicant he was less than a year from his expiration of term of service (ETS)
* the applicant asked if any bonuses were available and she said she would check
* she called the State Incentive Manager and was told there were no bonuses, but the applicant was eligible for ELRP
* the applicant provided information about his education loans and she submitted this to the State Incentive Manager; she received a response later that day saying the applicant was authorized to receive ELRP and was approved to have his three loans totaling $10,000.00 paid by this program
* based upon this, the applicant signed the enlistment extension
* around 14 September 2010, the applicant asked her to confirm his eligibility and that he would retain that eligibility once off Title 10 orders
* she emailed the State Incentive Manager again and was told the applicant was eligible because he was on Title 10 orders and not in a technician status at that time
* toward the end of the first year of his new reenlistment contract, the applicant applied for and received a portion of the ELRP incentive; she believes he received it a couple of times
* unexpectedly, the applicant was informed he was not eligible and would be subject to recoupment of all money received
* she feels this is unjust because the applicant, in effect, made good-faith efforts to ensure he was actually eligible before receiving the incentive

	b.  Two emails from the State Incentive Manager, dated in September 2010, stating the applicant was authorized to receive ELRP and was approved for three loans in the amount of $10,000.00.  Citing "the latest Education Loan Repayment Program (ELRP) policy" he states Soldiers, like the applicant, who accept employment in the Title 32 MilTech program, will be entitled to CHELRP as long as they remain serving under their initial contract and/or agreement for the CHELRP awarded.  He further states, because the applicant was not in a technician status when he extended, he would be allowed to receive ELRP even after he reentered MilTech status.

	c.  Letter from the applicant to the MOARNG ELRP Incentive Support NCO dated 28 June 2013, wherein he states in effect:

* he became a member of the MOARNG on 27 April 1997, and began working at the MO Aviation Classification Repair Activity Depot (MO-AVCRD) in April 2002
* in October 2003 he was accepted for a Wage Grade (WG)-10 permanent technician job at the AVCRD
* after returning from a deployment (around 2005), he applied and was accepted for a WG-11 permanent technician position with AVCRD
* he was encouraged to reenlist for a term of 1 year in 2009 and he initially declined
* he changed his mind after being told by his retention NCO (who saw he (the applicant) was projected to deploy) that he (the applicant) could keep any bonuses given if he reenlisted while on active duty (Title 10 mobilization orders)
* in and around August 2010, while on active duty (Title 10 mobilization orders) and deployed in Kuwait, his retention NCO approached him about extending his enlistment; he was told he was eligible for ELRP
* he gave serious consideration to extending because the ELRP would enable him to pay off $10,000.00 he had in education loans
* the applicant was skeptical, so he asked the retention NCO to confirm his eligibility with the State Incentive Manager; they were told he was eligible because he was on Title 10 orders and would remain eligible even after returning to his MilTech position
* he loves working in the MOARNG and has excelled in everything he has done; he requests to retain eligibility to receive ELRP and not be required to recoup any monies paid thus far

	d.  A memorandum dated 9 January 2014, from NGB denying the applicant's request for an ETP.  It states:

* the ETP is denied and the State Incentive Manager is to terminate the incentive with recoupment effective the start of the contract date
* the applicant contracted for the incentive while a MilTech which violates DoDI 1205.21

7.  An email from NGB confirmed the total amount the applicant received while participating in the ELRP was $1,500.00.

8.  Enclosure 8 (Written Agreement General Education Loan Repayment Program), found within DoDI 1205.21, states, in pertinent part, to be eligible for ELRP the service member must assert he/she is not enlisting, reenlisting, or extending to qualify for a MilTech position where membership in a Reserve component is a condition of employment.  There is nothing in DoDI 1205.21 that allows an exception to this requirement if that service member is on active duty as a result of Title 10 mobilization orders and in a "no-pay technician" status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests retention of the ELRP and should that not be available, he requests waiver of the recoupment action based on the erroneous guidance and payment he received for his student loans.  He contends he was misled by key personnel within the MOARNG who by their position should have known what the requirements were to participate in ELRP.

2.  DoDI 1205.21 is clear that personnel in a MilTech status are not eligible for ELRP.  Additionally, the Annex L signed by the applicant required him to verify he was not enlisting/reenlisting/extending to qualify for a MilTech position.  Although he was on Title 10 mobilization orders and in a "no-pay technician" status, he was still holding a MilTech position at his MOARNG unit and returned to that position on redeployment.  Despite the erroneous guidance of his retention NCO and State Incentive Manager, it is evident he was not eligible for the ELRP when he extended.  Therefore, when the NGB denied his ETP and directed recoupment of funds they were in compliance with administrative directives.

3.  Based on the evidence provided by the applicant, he was misinformed by those who were responsible for knowing the requirements of the ELRP.  As a result of their error, the applicant requested and received $1,500.00 which was applied toward repayment of his education loans.  As a matter of equity, it would be appropriate to waive the recoupment of the erroneous payment of $1,500.00 he received.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned to include his Defense Finance and Accounting Service record be corrected by waiving the recoupment of his $1,500.00 debt toward his education loans under the ELRP.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to permitting an exception to policy for the applicant to be eligible for participation in the ELRP.  


      _______ _   _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)                                         AR20140014091



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ABCMR Record of Proceedings (cont)                                         AR20140014091



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