BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140014625 


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, an exception to policy (ETP) for retention of the $50,000.00 Student Loan Repayment Program (SLRP) incentive.

2.  The applicant states:

   a.  The National Guard Bureau (NGB) denied his ETP for not serving in the military occupational specialty (MOS) for which he contracted.  Nowhere in Section V of "Termination of the SLRP" on page 3 of the contract he signed does it state that changing to a different MOS would result in him being ineligible for the bonus.  He is attaching a memorandum from his unit together with his statement that addresses the reason he changed his MOS.

   b.  He was also denied the ETP for his contract/bonus addendum being obsolete.  He is not really sure what that means.  His recruiter is the person who had him sign the contract/bonus addendum.  He would have no way of knowing that what the recruiter was having him sign was an obsolete contract.  It was the job of the recruiter to ensure he was signing the correct paperwork.

   c.  He was further denied the ETP for having a missing date next to his signature.  It is true that the date is missing next to his signature.  However, he is attaching a memorandum from his unit together with his statement citing the reason for the missing date.  Additionally, he does not understand why the missing date is now an issue.  It was not an issue in 2011 when a payment was made so why did it become an issue in 2013?

   d.  He has fulfilled his obligations under the SLRP agreement he signed and the requirements set forth therein.  He requests the NGB keep their commitment under said agreement and pay him his bonus contract.

3.  The applicant provides copies of the following:

* NGB Form 600-7-5-R-E (Annex L to DD Form 4, SLRP Addendum, Army National Guard (ARNG))
* two self-authored statements
* ETP memorandum
* Memorandum for Record (MFR)
* Request for ETP for SLRP memorandum

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the North Carolina ARNG (NCARNG) on 27 March 2010 for award of MOS 36B (Financial Management Technician).  On the same date, he executed and signed an NGB Form 600-7-5-R-E verifying he was eligible for the SLRP in the maximum amount of $50,000.00.  The publication date of the form he completed is 1 March 2009.  The form stated in:

   a.  Section II (Eligibility):

		(1)  "I am a Non-Prior Service applicant enlisting in a Modified Table of Organization and Equipment, Aviation Classification Repair Activity Depot, Regional Training Institute or a Medical or Special Forces Table of Distribution and Allowances Unit (MTOE/AVCRAD/RTI/ISF), or Medical Table of Distribution and Allowances (TDA) or deploying TDA (UIC) for a term of not less than 6 years in the ARNG of the U.S. with a concurrent statutory military service obligation of 8 years."  He placed his initials in this section.

		(2)  "I have 1 disbursed loan existing in the amount of $39,919.96.  The total amount of repayment for qualifying loan(s) will not exceed $50,000.00."  He placed his initials in this section.  

   b.  Section V (Termination) "I understand that I may be terminated from bonus eligibility for any of the following reasons."

		(1)  "Voluntarily transfer out of the critical UIC or Critical Skill for which bonus is approved."

		(2)  "Voluntary transfer to a non-deploying TDA or any TDA not specifically authorized a bonus."

	c.  Section VIII (Authentication) contains his unit, printed name, and signature; however, the date of his signature is missing.  This section also contains the signatures and printed names of the service representative and witnessing officer and dates.  This section further contains an SLRP control number.

3.  He completed training and was awarded MOS 36B.

4.  He provided copies of the following:

   a.  A statement, dated 3 May 2013, wherein the applicant requested an ETP.  He stated that it was recently brought to his attention that there wasn't a date beside his signature on the SLRP agreement.  He signed that agreement at the time of his enlistment on 27 March 2010 along with several other documents. He was not sure how the absence of a date occurred and did not feel an excuse was appropriate.  He was merely trying to correct an administrative oversight.  He had upheld his part of the SLRP agreement (never failed an Army Physical Fitness Test, etc.) and felt he should be awarded the ETP and he would appreciate the consideration.

   b.  An ETP memorandum, dated 26 July 2013, wherein the NCARNG, 130th Aviation Regiment, Readiness Noncommissioned Officer (NCO), stated the applicant signed an enlistment for 6 years in the NCARNG on 27 March 2010.  That enlistment included a reenlistment bonus of the SLRP on which there was an administrative error that excluded a needed date.  That date should be 27 March 2010.  That administrative error was no fault of the applicant and should have no negative impact on his bonus payment.  The applicant held up his end of the agreement and the requirements set forth for the payment of his bonus.  He was and had always been in good standing with the 130th Aviation Regiment and was a valued member of their team.
5.  A DA Form 1059 (Service School Academic Evaluation Report) shows he completed the AH-64D Attack Helicopter Repairer Course on 5 November 2013.

6.  Orders Number 320-865, issued by the NCARNG on 16 November 2013 withdrew MOS 36B and awarded him MOS 15R (Attack Helicopter Repairer) effective 5 November 2013.

7.  He also provided copies of the following:

   a.  An MFR, dated 3 December 2013, wherein the Commander, Company B, 1st Battalion, 130th Aviation Regiment, stated the applicant accepted a short fall school vacancy on a two-week notice for critical skill MOS 15R which was an MOS the State always had a hard time filling. The short-fall slot was due to another Soldier failing to meet school prerequisites. The applicant agreed to take the short-fall slot and by doing so, he helped the State fill a vacancy to fill the school quota.  The 449th Theater Aviation Brigade was unable to fill that school with someone within the command. The 1st Battalion, 130th Aviation Regiment requested that the State keep its commitment to pay the bonus contract to the applicant.

   b.  A statement, dated 23 December 2013, wherein the applicant stated when he joined the Army and signed-up for the SLRP he was never informed that if he was to change his MOS or transfer to a different unit it would affect repayment of his loans by the SLRP.  The reason he changed his MOS was to further his career, as he felt his Army career was going nowhere as a 36B.  He began searching for another MOS and he heard about an opening for MOS 15R at the 1st Battalion, 130th Aviation.  He felt that pursuing that slot would be best for his career and future.  By accepting the MOS 15R slot, he not only helped the 1st Battalion, 130th Aviation fill a slot that they were having trouble filing, he also helped his career by being promoted to pay grade E-5.  In addition, he moved from a non-critical skill MOS to a critical skill MOS.  For that reason he felt that his loans should still be paid by the SLRP.

   c.  A Request for ETP for SLRP memorandum, dated 28 May 2014, wherein the NGB, Deputy G1, ARNG, advised the NCARNG of the denial of the applicant's ETP request to retain the $50,000 SLRP, with termination of the SLRP and recoupment effective the date of transfer.  The ETP was denied based on the following discrepancies, each of which violated ARNG Chaplain, Health Professional and Enlisted Loan Repayment Program (CHELRP), Fiscal Year 2009:

* he was not serving in the MOS for which contracted (36B)
* his contract/bonus addendum was obsolete
* his contract/bonus addendum was missing a signature date from him

8.  NGB Education Division Instruction 1.1, dated 1 October 2009, contains all policy and procedural guidance for all loan repayment programs for the ARNG.  This instruction supersedes all other policy and procedural guidance on the SLRP (now known as the ELRP), the Health Professional Loan Repayment Program and the Chaplain Loan Repayment Program.  The combined loan repayment program is now known as the CHELRP.  Paragraph 4-2 (Termination) states an incentive will be terminated if a Soldier moves to another MOS or is reclassified in an MOS other than that for which contracted. 

9.  Department of Defense Instruction Number 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 MOS.

10.  Title 37, U.S. Code, section 373, allows for the recoupment of unearned portions of bonuses, incentive pay, or similar benefits, and termination of remaining payments when conditions of payment are not met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the NCARNG on 27 March 2010 for MOS 36B.  On the same date, he executed an SLRP incentive addendum for that MOS.  The addendum stated, in pertinent part, the incentive would be terminated if he voluntarily transferred out of the MOS for which the incentive was approved.  Effective 5 November 2013, MOS 36B was withdrawn and he was awarded MOS 15R.

2.  The NGB denied his request for an ETP because he did not meet eligibility criteria for the incentive under the Selected Reserve Incentive Program guidance and terminated the incentive with recoupment effective the date of transfer.

3.  There is no evidence of record and he did not provide sufficient evidence showing he continued to serve in the MOS for which he contracted.  It is unfortunate that he thinks he was erroneously denied the SLRP; however, he knew or should have known of the eligibility criteria for retention of the incentive.  

4.  Notwithstanding the administrative errors on his incentive addendum, the fact remains that by his own admission and that of his chain of command, he voluntarily transferred out of the MOS for which contracted to further his career.  He has not shown that he was erroneously or unjustly denied the SLRP incentive or that any monies paid under this incentive were erroneously or unjustly recouped.

5.  In view of the foregoing, there is no basis to support granting him the 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)                                         AR20140014625





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ABCMR Record of Proceedings (cont)                                         AR20140014625



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