IN THE CASE OF:  	  

		BOARD DATE:  28 May 2015	  

		DOCKET NUMBER:  AR20140014774 


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 $50,000.00 Student Loan Repayment Program (SLRP) (synonymous with Enlisted Loan Repayment Program (ELRP)) incentive.

2.  The applicant states:

	a.  He was told his Reserve Officers' Training Corps (ROTC) scholarship would not affect his SLRP contract.

	b.  His SLRP contract stated he would be able to add new loans any time during the contracted period up to the fifth anniversary of the current 6-year contract, not to exceed $50,000.00.

	c.  Section VI (Statement of Understanding) of his SLRP contract contained the statement:

I understand that my ELRP will continue if I either accept an appointment as an officer or warrant officer candidate, or if I contract as an SMP [Simultaneous Membership Program]/ROTC cadet.  It will continue upon acceptance of either a commission or appointment as an officer or warrant officer in the ARNG [Army National Guard].  The timeline of the original contract will remain in effect.  I also understand that my continued participation on [sic] this program will cause me to be ineligible for any Officer/Warrant Officer Accession Bonus.

	d.  He continued to serve in the North Dakota Army National Guard (NDARNG) as a cadet and he thought his student loans were being paid.  Recruiting and retention personnel throughout the State confirmed he would be able to continue to receive his benefits with the regulation in effect at the time.

	e.  On 18 May 2012 (should read 6 May 2012), an ETP to retain his SLRP incentive was submitted to the National Guard Bureau (NGB); however, he received a memorandum advising him the ETP was denied because he violated ARNG Chaplain, Health Professional, and Enlisted Loan Repayment Programs (CHELRP) Fiscal Year 2009 (FY09) in that he entered an SMP/ROTC Program, his contract/bonus addendum form was obsolete, and his contract/bonus addendum contained unauthorized pen and ink changes.

	f.  He was unable to find anything negating the retention of his SLRP incentive and he met the criteria for retaining the SLRP incentive.  He was not at fault for the use of an obsolete contract/bonus addendum form and he trusted the officer strength management team.

3.  The applicant provides:

* two self-authored statements
* U.S. Army Cadet Command Form 203-R (Guaranteed Reserve Forces Duty Scholarship Cadet Contract Endorsement)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 27 July 2010
* NGB Form 600-7-5-R-E (ELRP Addendum), dated 27 July 2010
* DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 16 September 2010
* page 2 of NGB Form 5435 (Annex K to DD Form 4 (Enlistment/
Reenlistment Document – Armed Forces of the United States) – Montgomery GI Bill Kicker Incentive Addendum – The ARNG of the United States), dated 16 September 2010
* blank page 1 of NGB Form 594-1 (ARNG SMP Agreement)
* self-authored memorandum, dated 6 May 2012
* two memoranda from the NDARNG Incentives Manager, dated 27 February 2013 and 5 June 2014
* NGB ETP denial memorandum, dated 1 October 2013
* memorandum for record from the NDARNG Incentives Manager, dated 9 July 2014
* timeline of events
* extracts of NGB Education Division Instruction 1.1 (CHELRP)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NDARNG on 30 September 2004 for a 6-year period.

2.  In conjunction with his enlistment, he executed an enlistment bonus addendum, an Annex K to DD Form 4, and a DA Form 5435 (Statement of Understanding – The Selected Reserve Montgomery GI Bill).

3.  His DA Form 4836, dated 27 July 2010, shows he extended his enlistment for a 6-year period.

4.  In conjunction with his extension, he executed an Annex L to DD Form 4 (ELRP Addendum – ARNG of the United States).

	a.  Section II (Eligibility) shows in:

		(1)  item 1d, a preprinted statement lined out and replaced with the typewritten statement, "I understand that I may add new loans anytime during the contract period up to the fifth anniversary of the current six year contract";

		(2)  item 2c, he had two existing disbursed loans in the amount of $13,251.00 and the total amount of repayment for a qualifying loan would not exceed $50,000.00; and

		(3)  item 2d, a preprinted statement lined out and replaced with the typewritten statement, "I understand that I may add new loans anytime during the contract period up to the fifth anniversary of the current six year contract."

	b.  Section VIII (Certification by Service Representative) shows:

		(1)  the service representative and a witnessing officer signed and dated the form on 27 July 2010 and

		(2)  an ELRP bonus control number was assigned.

5.  On 16 September 2010, he executed a DA Form 597-3 that shows his education commencement date as 23 August 2010 and his completion date as 10 May 2013.

6.  His Annex K, dated 16 September 2010, shows he acknowledged that his Montgomery GI Bill Kicker could be suspended, terminated, or recouped if he failed to complete his 6-year obligation.

7.  On 6 May 2012, he submitted a request for an ETP to retain his enlistment bonus and ELRP incentive.  He stated he was guaranteed his ROTC scholarship would not affect any of his ELRP incentives and this was his primary reason for contracting with ROTC.  Further, the discrepancies were not his fault.

8.  On 27 February 2013, the NDARNG State Incentives Manager notified the applicant of discrepancies discovered in his ELRP addendum and the ETP process.  The State Incentives Manager identified the discrepancies as use of an obsolete ELRP addendum and unauthorized typed changes to the addendum.  He was given 45 days to respond.

9.  On 8 March 2013, the applicant submitted a self-authored statement indicating he was not aware of an obsolete ELRP addendum being used or unauthorized typewritten changes made to the addendum.

10.  On 16 May 2013, the applicant was honorably discharged from the NDARNG.

11.  On 1 October 2013, NGB denied his ETP request to retain the $50,000.00 ELRP incentive.  The ARNG Deputy G-1 stated the following discrepancies violated ARNG CHELRP for FY09:

* the applicant entered SMP/ROTC Program which violated ARNG CHELRP FY09
* his contract/bonus addendum was obsolete
* his contract/bonus addendum contained unauthorized pen and ink changes

12.  On 5 June 2014, the NDARNG Incentives Manager notified the applicant of NGB's denial of his request for retention of his ELRP incentive.  He was advised that he would not be receiving any further payments under the ELRP contract and he had the option to file an action with this Board.

13.  On 9 July 2014, the NDARNG Incentives Manager provided a memorandum for record indicating:

* section IV of the applicant's ELRP contract states the ELRP will continue if contracting as an SMP/ROTC cadet with no reference to ROTC scholarship
* NGB Education Division Instruction 1.1 was the policy in effect at the time and stated the ELRP would continue if contracting for SMP/ROTC with no reference to ROTC scholarship
* on or about 25 June 2012, NGB returned the ETP request stating no ETP was required for this issue
* NGB could not cite the law for the noted discrepancy
* recently completed ETP requests for ROTC scholarship issues have been returned from NGB citing National Guard Regulation 600-7 (Selected Reserve Incentive Programs) as the reference

14.  The applicant provided a self-authored statement explaining the rationale for his ROTC contract.  He also provided extracts of his records, a timeline of events from 8 September 2006 through 5 June 2014, and extracts of NGB Education Division Instruction 1.1 which provides guidance for the ARNG Loan Repayment Program.

15.  NGB Education Division Instruction 1.1, in effect at the time, provided policy and procedures for management of the ARNG CHELRP for the period 1 October 2009 through 30 September 2010.

	a.  This instruction:

* consolidated the CHELRP policies into one instruction
* authorized Soldiers in the ELRP to add new loans up to the fifth anniversary date of current 6-year contract
* clarified types of loans that could be paid under the ARNG CHELRP
* defined responsibilities by each party throughout the application for repayment process
* established the acronym ELRP which represented the former SLRP within the ARNG and referred to as the ARNG ELRP

	b.  Paragraph 2-3 stated:

		(1)  enlisted Soldiers receiving ELRP would remain eligible while attending Officer Candidate School or Warrant Officer Candidate School or after contracting in the ROTC/SMP;

		(2)  Soldiers would also remain eligible upon commissioning or appointment, subject to the original restriction that their ELRP would be paid within the same period established in their original enlistment documents;

		(3)  any Soldier who initially contracted for the ELRP on or after 1 October 2009 could continue ELRP eligibility by extending for a period of not less than 6 years once they reach their 12-month extension window;

		(4)  any period of extension of less than 6 years would terminate ELRP eligibility;

		(5)  these Soldiers could continue to extend in this manner until they reached the maximum dollar amount authorized on their initial ELRP contract; and

		(a)  any new qualifying loans that were disbursed during the current contract term may be added for repayment only up-to the fifth anniversary date. Loans disbursed after the fifth anniversary date, would require a new 6-year contract extension.

		(b)  Payments on loans could not exceed $50,000.00 under the initial contract, with the maximum payment of 15 percent ($7,500.00 cap per Soldier, per year) or $500.00 per year, whichever was greater.  The annual payment would include interest as long as the combined principal and interest payment did not exceed the maximum amount authorized under law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an ETP to retain his $50,000.00 ELRP incentive was carefully considered.

2.  The applicant executed an initial 6-year enlistment in the NDARNG under the Montgomery GI Bill Kicker and enlistment bonus options.  He later contracted for ROTC.

3.  He extended his enlistment in good faith, followed the instructions of the subject matter experts who enlisted him, signed the addenda that he was told to sign, and he was issued bonus control numbers.  He continues to satisfy the contractual obligations for which he contracted.

4.  It is clear that his ELRP contract may have been generated with the obsolete form and it was modified; however, the changes made to the contract were in accordance with the governing NGB instruction in effect at the time.  It is also clear that he is being denied an earned benefit as a result of improper guidance.  He should not be penalized for actions that were not his fault.  Therefore, as a matter of equity, he should receive full administrative relief for all payments of his authorized loans in accordance with the ELRP regulatory guidance in effect at the time.



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 State Army National Guard and Department of the Army records of the individual concerned be corrected by:

* showing an ETP was approved for retention of his $50,000.00 ELRP incentive
* paying all his authorized loans in accordance with his contract subject to the threshold amount listed on his ELRP contract out of ARNG funds



      __________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)                                         AR20140014774



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ABCMR Record of Proceedings (cont)                                         AR20140014774



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