IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140015211 


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 participation in the Student Loan Repayment Program (SLRP) incentive.

2.  The applicant states, in effect, he enlisted in the Delaware Army National Guard (DEARNG) on 10 December 2008 and that Section VI (Remarks) of his DD Form 1966 (Record of Military Processing - Armed Forces of the United States) reflects his acceptance of both the Non-Prior Service Enlistment Bonus (NPSEB) and the SLRP in conjunction with his enlistment.  He attests that although SLRP documents were completed at the time of his enlistment and bonus control numbers were requested, they were never processed or filed in his personnel record.

3.  The applicant further states that he accepted a Federal Military Technician (MilTech) position on 5 December 2010, which terminated his eligibility for further incentives.  He then quickly accepted and began his duties in preparation for mobilization with the 1049th Transportation Company of Seaford, DE in May 2011.  At the time, he had no knowledge of the effect that this decision would have on his incentives and remained unaware until he was informed on his anniversary date while mobilized.  He has never received any SLRP payments or deposits, but believes he is eligible for one SLRP payment for training year 2009 and possibly 2010 as well.  He concludes that since no SLRP payments were made, recoupment is not warranted.



4.  The applicant provides:

* DD Form 1966
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4, Non-Prior Service Enlistment Bonus Addendum, Army National Guard of the United States)
* three Standard Forms 50 (Notification of Personnel Action)
* three memoranda
* email correspondence
* National Student Loan Data System Financial Aid Review

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 provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case 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 insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the DEARNG on 10 December 2008.  In conjunction with his enlistment he completed the following documents:

	a.  DD Form 1966, which makes no mention of his enrollment in the SLRP.  This form shows:

		(1)  Section II (Examination and Entrance Data Processing Codes), item 19s (Service Annex codes) indicates three addendums were attached to the applicant's enlistment contract.  

		(2)  Section IV (Certification), item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees) shows the specific options/programs he enlisted for included a $20,000 Non-Critical Skill Valid Vacancy bonus, a $350 non-prior service Montgomery GI Bill Kicker and the ARNG Standard Training Program.  He indicated that he fully understood that he would not be guaranteed any specific military skill or assignment to a geographic area except as shown above and annexes attached to his Enlistment document (DD Form 4).

		(3)  Section VI (Remarks) contains several preprinted generic entries and provides blank spaces for Soldiers to initial when pertinent.  Among these entries are the entries:

* "I understand that I am eligible for Enlistment Cash Bonus Program. I accept the Enlistment Cash Bonus Program."
* "I understand that I am eligible for Enlistment Cash Bonus and Student Loan Repayment Program.  I accept the Enlistment Cash Bonus and Student Loan Repayment Program."
* "I understand that I am eligible for the Student Loan Repayment Program.  I accept the Student Loan Repayment Program."

This document does not bear the applicant's initials beside any entries in Section VI.

	b.  Enlistment/Reenlistment Agreement ARNG Service Requirements and Methods of Fulfillment (Guard Annex).  This document makes no mention of his enrollment in the SLRP.

		(1)  Section VII (Addendums) shows the following addendums had been attached and were part of his enlistment agreement:

* Enlistment Bonus Form
* Montgomery GI Bill Kicker
* Montgomery GI Bill

		(2)  Section VII (Statement of Acknowledgement and Understanding) shows he acknowledged that he had read and understood the statements above ant that these statement were intended to constitute ALL (emphasis added) promises and guarantees whatsoever concerning his enlistment.  No other (verbal or otherwise) promise or representation not annexed to his enlistment contract is valid or would be honored.  He thereby stated that he had NOT (emphasis added) been promised anything other than what was written on this form and thereby waived any claim based upon any promise or representation not annexed in his contract.

	c.  NGB Form 600-7-1-R-E, which shows:

		(1)  Section II (Eligibility) shows the applicant stated that he was not enlisting to gain employment in a MilTech position where membership in a Reserve component is a condition of employment.  He was enlisting into a non-critical skill under a 6X2 or 8X0 enlistment option and would receive a $20,000 NPS Non-Critical Skill Bonus (50/50 payment) with 50 percent paid upon his completion of initial active duty training (IADT) and award of the military occupational specialty (MOS) for which he enlisted and the second and final payment on the 36th-month anniversary of his date of enlistment. 

		(2)  Section V (Termination Without Recoupment) shows he indicated his understanding that he would be terminated from bonus eligibility, without recoupment if he accepted a MilTech position and on the effective date of his orders had served at least 6 months of the incentive contract term.

	d.  DA Form 5435 (The Selected Reserve Montgomery GI Bill) which explained the applicant's obligation and eligibility requirements for entitlement to the  Reserve Montgomery GI Bill.

	e.  The ARNG of the United States Montgomery GI Bill Selective Reserve Kicker Incentive Addendum (MGIB-K) which explained the applicant's obligation and eligibility requirements for entitlement under the ARNG Montgomery GI Bill Selective Reserve Kicker Incentive at a rate of $350.

3.  The applicant's enlistment contract is void of any evidence that participation in the SLRP was included in the terms of his contract.

4.  The applicant completed his IADT, he was awarded his contracted military occupational specialty, was paid the initial 50 percent of his NPSEB and continued to serve in his DEARNG unit.  

5.  The applicant provides:

	a.  Three Standard Forms 50 which rendered on the dates shown for the reasons indicated:

		(1)  5 December 2010, shows his acceptance of an appointment as a MilTech in the Excepted Service.  This appointment was subject to a 1-year trial period beginning 5 December 2010.

		(2)  5 December 2010, shows that his excepted appointment as a MilTech required him to maintain a compatible military assignment in the DEARNG as a term of employment.


		(3)  5 December 2011, shows he completed the trial period service requirement for permanent tenure from 5 December 2010 to 4 December 2011.

	b.  An Education Services Officer (ESO), DEARNG, memorandum, dated 28 June 2013, addressed to Chief, Education, Incentives and Employment Division, NGB, subject:  [Applicant's rank, name and social security number] Missing SLRP Addendum.  Shows the ESO stated that in order for the DEARNG Education Office to process the applicant's SLRP payment, they needed to move his contract in the Guard Incentive Management System (GIMS) out of ETP at the state level to NGB.  The ESO stated this memorandum was being uploaded into GIMS under the Addendum requirement to move it to NGB.

	c.  A Deputy Chief of Staff, Personnel (DCSPER), DEARNG, memorandum, dated 25 July 2013, addressed to Chief, Education, Incentives and Employment Division, NGB, subject:  Request ARNG ETP for [Applicant's rank, name and SSN] shows the DCSPER requested an ETP for the applicant to receives his initial SLRP payment because the applicant was told in good faith that he would receive an annual payment for the duration of his enlistment and the information was documented on his DD Form 1966.  The applicant did not sign an SLRP addendum, but a control number was issued for the SLRP.  On 5 December 2010, the applicant became a Federal Technician and is currently holding the position.  His entitlement date for the SLRP was 10 December 2008 so, he is due one loan payment for fiscal year 2010 (FY10).  At the time of his enlistment, the applicant was unaware that he was ineligible to receive loan payments because he enlisted in a Table of Distribution and Allowances (TDA) unit.  Section VI of his DD Form 1966 indicates that he was an SLRP applicant.  He enlisted with existing federally subsidized student loans.  Without the knowledge of the applicant, Military Entrance Processing Station (MEPS) guidance counselor (GC) requested a control number, but failed to complete the addendum for the SLRP.  The applicant is admirably serving his unit and the DEARNG.  He should not be accountable for mistakes made by the MEPS GC when he enlisted.  Because of the error made by the MEPS GC, the applicant feels he should be granted the FY10 loan payment due before he became a Federal Technician.

	d.  A Deputy G1, ARNG, NGB, memorandum, dated 26 February 2014, subject:  Request for ETP for SLRP [Applicant's rank, name and SSN], shows the Deputy G1 informed the State Incentive Manager, DEARNG, that the applicant's request for an ETP to retain a $20,000 SLRP was denied.  As a result, the State Incentive Manager was instructed to terminate the incentive with recoupment effective the contract start date.  The catalysts for these actions were as follows:

		(1)  The applicant became a MilTech after the contract start date, which violates ARNG Selected Reserve Incentive Program (SRIP) Policy 07-06 (10 August 2007 to 28 February 2009).

		(2)  The applicant's incentive addendum cannot be found, which violates ARNG Selected Reserve Incentive Program (SRIP) Policy 07-06 (10 August 2007 to 28 February 2009).

		(3)  A review of the applicant's enlistment documents does not support his claim that the SLRP was offered to him at his time of enlistment.

	e.  Email correspondence which shows termination of his SLRP entitlement should have been without recoupment because he did not become a MilTech until more than 180 days of ARNG service.  It was agreed that in view of the fact that he was never paid an SLRP payment, there was no need for recoupment.

	f.  A National Student Loan Data System Financial Aid Review, dated 27 June 2013, which shows he had an outstanding principal of $19,109 and outstanding interest in the amount of $616 for student loan debt incurred from November 2002 through September 2007.

6.  He is currently a member of the MOARNG and serving in the rank/grade of specialist (SPC)/E-4 and concurrently as a MilTech.  

7.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of ARNG and U.S. Army Reserve incentive programs.  These programs include the SRIP, which offers bonuses, educational assistance, and repayment of student loans.  Chapter 5.1 contains guidance relative to the SLRP.

	a.  The SLRP incentive provides for the repayment by the Government of a designated portion of any outstanding loan(s) secured after 1 October 1975.  

	b.  To be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily.  A person must serve in the Selected Reserve for the full term of the contractual agreement.  He or she must further obligate himself or herself to continue to serve in the same component and the same MOS, unless excused for the convenience of the Government.

	c.  Entitlement to the SLRP will stop if the Soldier becomes an unsatisfactory participant per Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures).
	d.  Title 37, U.S. Code, section 373, allows for the repayment of unearned portion of bonus, incentive pay, or similar benefit, and termination of remaining payments, when conditions of payment were not met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The applicant's enlistment contract is void of any indication that he enlisted for the SLRP incentive.  Based on the evidence, it appears he never signed an SLRP contract.

3.  The evidence of record shows that on 10 December 2008 he signed his enlistment contract which shows three addendums were attached to his enlistment agreement and there was no SLRP addendum listed.  The evidence further shows he signed the contract acknowledging he understood that "No" other (verbal or otherwise) promise or representation not annexed to his enlistment contract was valid or would be honored. 

4.  Although the applicant's DD Form 1966 contains generic preprinted entries providing for acceptance of the SLRP, it is void of any entries or initials showing he was actually eligible for or offered the SLRP.

5.  Upon the applicant's request for an ETP to receive the SLRP his records were apparently audited or verified by the State Incentive Manager for accuracy.  The representative stated no supporting addendum could be found to indicate that the incentive was offered at the time of his enlistment.  Therefore, he was not entitled to the SLRP incentive.

6.  There is no evidence of record and he has not shown that he was erroneously or unjustly denied the SLRP incentive and it was erroneously or unjustly recouped.  Therefore, without evidence to the contrary, the action taken by NGB to terminate the incentive appears to be proper.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140015211



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ABCMR Record of Proceedings (cont)                                         AR20140015211



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