IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140017553


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, correction of his military records by reconstructing missing incentive addendums to his enlistment contract with the California Army National Guard (CAARNG).

2.  The applicant states that his addendums to his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) and to his DD Form 1966 (Record of Military Processing - Armed Forces of the United States) are missing from his military records.  The CAARNG Task Force requested a copy of these addendums.  The addendums provides for a student loan repayment plan (SLRP) and for a non-prior service enlistment bonus (NPSEB).  The CAARNG incentive unit, the legal team and the applicant have related documents illustrating his qualification for the SLRP and NPSEB.  Sallie Mae received payment from the CAARNG under the SLRP program from the state and he received his bonus under the non-prior service condition.  

3.  The CAARNG is now seeking to recoup these monies from the applicant because of incomplete and/or missing addenda from his military records.  He wants the Board to correct the deficiencies by creating the required addenda.  With a correction to his record to show the addenda exist, recoupment action will cease.  He opines that the error occurred at the Los Angles Military Entrance Processing Station (MEPS) when he enlisted.  Personnel failed to include the addenda for the SLRP and NPSEB.  The recruitment work-up sheet clearly shows the SLRP and Bonus with Kicker.  He contends that his DD Form 1966/3 stipulates he qualified for the SLRP.  Remarks on the form state he was eligible for both the NPSEB and the SLRP.  Without replacement of these missing documents, he faces a recoupment of all money paid to him and the financial institutions that held his school loans.

3.  The applicant provides copies of:

* a Recruiting Production Worksheet, indicating enlistment bonus of $8,000.00, SLRP, and Kicker Program, unsigned
* a Recruiting Production Worksheet, indicating enlistment bonus of $5,000.00, SLRP, and Kicker Program, signed by applicant and counselor
* an automated Data Processing form, undated
* DD Form 4/1 and 4/2, dated 25 July 2000
* DD Form 1966/1/2/3, dated 25 July 2000
* DD Form 1966 continuation Page, dated 28 June 2000
* DD Form 2384 (Selective Reserve to GI Bill Educational Assistance Benefits), dated 1 November 2001
* memorandum, Civilian Education Services Officer to Commander, Troop A, 1st Squadron, 18th Cavalry Regiment, dated 6 December 2001
* Sallie Mae Servicing Form, dated 30 August 2004
* Federal Stafford Loan Master Promissory Note, dated 31 September 1999
* DD Form 2384-1 (Notice of Basic Eligibility), dated 21 November 2005
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 25 January 2008
* SLRP Payment records (various types of documents), dated 27 February 2003 to 3 June 2005 (36 pages)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 8 April 2006
* Disbursement Record of Subsidized/Unsubsidized payments dated between 14 October 1999 and 27 December 2000 (4 pages)
* Memorandum for the Applicant from the Commander, CAARNG, dated 17 April 2012
* CAARNG Incentives Task Force Loan Repayment Audit Form, dated 28 October 2011 (3 pages)
* CAARNG Exception to Policy (ETP) Checklist), uncompleted and undated
* letter from the applicant to the CAARNG requesting an ETP, waiver, or remission of the SLRP and NPSEB, dated 4 May 2012
* a "Page 2" of an unknown document, dated 8 May 2012
* letter from the CAARNG Incentives Task Force to the applicant, dated 12 June 2012
* letter from the CAARNG Incentives Task Force to the applicant, dated 5 July 2012



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.  A review of his official military personnel file shows the applicant enlisted in the CAARNG on 25 July 2000 in pay grade E-3 for 6 years.  He extended his enlistment in the CAARNG on 25 July 2006 for 1 year.  On 7 July 2007, he was discharged from the CAARNG in the rank of sergeant/pay grade E-5.  He had served for 7 years and 1 day in an inactive status and was transferred to the U.S. Army Reserve Control Group.  On 28 July 2008, he was discharged from the U.S. Army Reserve.

3.  The CAARNG by letter provided a summary and opinion pertaining to the applicant, a former member of the CAARNG.  In pertinent part, the Soldier Incentives Assistance Center for the CAARNG audited the applicant's record and discovered that he was not eligible to receive payments for NPSEB and SLRP due to insufficient supporting documentation.  The CAARNG official stated that the applicant was eligible to contract for both incentives at the time of his initial enlistment and recommended that appropriate addenda be created by an authorized correction to his records through the ABCMR.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau.  The advisory opinion recommended approval of the applicant's request based on the following comments:

	a.  The applicant is requesting relief from recoupment of his NPSEB and his SLRP.

	b.  The applicant had enlisted on 25 July 2005 [sic, 25 July 2000].  He was eligible to receive both the NPSEB and the SLRP.  This was determined by the comments shown in the remarks portion of his DD Form 1966/3 stating he had understood he was eligible for an enlistment cash bonus and the SLRP and had accepted both.  The document was signed by two recruiters.

	c.  The incentives identified above face recoupment because the specific written agreements (addenda) are no longer on file.  The audit report acknowledges that the applicant was eligible to receive the incentives and that the incentives had been paid.

	d.  A bonus control number (BCN) was requested on 3 August 2005 for the NPSEB and the applicant was paid $5,000.00.  The issuance of a BCN and subsequent payment of the NPSEB indicates a written agreement likely existed at the time.

	e.  The SLRP benefits were paid in installments in 2003 and 2005, indicating the existence of a written agreement at the time.

	f.  The applicant is not at fault for the loss of these written agreements.

	g.  The law at the time of the applicant's reenlistment had been amended to increase the NPSEB from $5,000.00 to $8,000.00.  However, he only received the lower amount.  Accordingly, he is entitled to receive the $3,000.00 difference.

	h.  The CAARNG concurred with this advisory opinion.

4.  On 20 November 2014, a copy of this advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected by reconstructing the missing incentive addenda for his NPSEB and SLRP.

2.  The evidence indicates that the applicant was paid a $5,000.00 NPSEB, which is now being recouped simply because the specific addendum authorizing this bonus is missing from his records.  This action is unjust.  He was not found to be a fault for the loss of this document.  Further, it now appears that his NPSEB was, or should have been authorized and paid in the amount of $8,000.00 due to a change in the governing law at the time.  Accordingly, it would be appropriate to correct his records by reconstructing his NPSEB addendum for a total bonus amount of $8,000.00 and paying him all monies due as a result of this correction.

3.  The evidence indicates the applicant had contracted for the SLRP but that the addendum is no longer on file resulting in recoupment action after an audit of his record by the CAARNG.  This action is unjust.  The addendum should be reconstructed and placed on file and the recoupment action terminated.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and Department of the Army records of the individual concerned be corrected by:

	a.  reconstructing the addenda for his NPSEB (in the amount of $8,000.00) and SLRP and placing them in the appropriate files; and

	b.  ceasing all recoupment actions and then reviewing his military pay records and paying him any monies due that flow from this correction.

	


      ____________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)                                         AR20120020438



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ABCMR Record of Proceedings (cont)                                         AR20140017553



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