IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017989 


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 reinstatement of his entitlement to the Non-Prior Service Enlistment Bonus (NPSEB) and Student Loan Repayment Program (SLRP) he contracted for in his initial enlistment on 8 August 1994.

2.  The applicant states he missed his initial basic combat training (BCT) ship date and the second rescheduled date due to his father's illness and subsequent death.  His attempts to attend BCT after his father's death required, for reason's still unknown to him, a change in his status to prior service.  He was denied the incentives he initially contracted for due to this error.  

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 8 August 1994
* an undated U.S. Military Entrance Processing Command (USMEPCOM) Form 601-23-4 (Restrictions on Personal Conduct in the Armed Forces)
* DA Form 3540 (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting, Reenlisting or Transferring, Into Troop Program Units of the U.S. Army Reserve (USAR)), dated 8 August 1994
* DA From 3286-67 (Statement of Understanding), dated 8 August 1994
* DA Form 5261-R (Selected Reserve Incentive Program (SRIP) Enlistment Bonus Addendum), dated 8 August 1994
* DA Form 5261-4-R (SLRP Addendum), dated 8 August 1994
* Orders Number 05-045-00012, dated 14 February 2005
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 was born on 28 February 1977 and enlisted in the U.S. Army Reserve (USAR) at the age of 17 for a period of 8 years on 8 August 1994.  

	a.  His enlistment contract contains DA Form 3540, dated 8 August 1994.  Section III (Explanation to Applicant/Member), item 6 shows he initialed the block indicating he had no previous military service on active duty, or active duty for training, in the Armed Forces of the United States and upon executing this enlistment, he understood he would incur a statutory military service obligation of 8 years.  The enlistment option he selected provided that he would be a member of a troop program unit for a period of 6 years and a member of the Individual Ready Reserve (IRR) for the balance of his 8-year service obligation.  

	b.  His enlistment contract contains a DA Form 5261-R, dated 8 August 1994, which shows he contracted for a $1,500.00 NPSEB.  He signed this document indicating he had read and understood Section VII (Termination), which states he understood his entitlement to the enlistment bonus would be terminated should any of the following conditions occur before the fulfillment of his enlistment agreement and obligation:

		(1)  His bonus would be terminated if he failed to become qualified in his military occupational specialty (MOS) within 12 months, if required to perform on-the-job training, or within 24 months if required to attend a service school, following a voluntary assignment to a bonus MOS or unit other than that for which he had contracted and that this could result in a recoupment action.

		(2)  His bonus would be terminated if he was separated from his enlistment status in the Selected Reserve (SELRES) for any reason, which could also result in a recoupment action, unless the separation was for an authorized period of nonavailability; his acceptance of an appointment as an officer or warrant officer after he had served 1 year or more of SELRES service under this agreement; or his death, injury, illness, or other impairment not the result of his own misconduct.

	c.  His enlistment contract contains a DA Form 5261-4-R, dated 8 August 1994, which shows he contracted for a $10,000.00 student loan repayment under the SLRP.  However, he signed this document indicating he had read and understood Section VII (Termination), which states he understood his entitlement to the SLRP would be terminated should any of the following conditions occur before the fulfillment of his enlistment agreement and obligation:

		(1)  His entitlement to loan repayment would be terminated if he failed to become MOS qualified within 12 months, if required to perform on-the-job training, or within 24 months if required to attend a service school.

		(2)  His entitlement to loan repayment would be terminated if he was separated from his enlistment status in the SELRES for any reason, unless the separation was for an authorized period of nonavailability.  

3.  Orders Number 166-18, issued by the 89th Regional Support Command (RSC), Wichita, Kansas on 14 June 1996, discharged him from the USAR in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel), chapter 9 (Defective Enlistments and Reenlistments), effective 14 June 1996.  His character of service was listed as uncharacterized.  His administrative separation packet that would contain the specific reason for his separation is not filed in his Official Military Personnel File (OMPF).

4.  After an 18-day break in service, he enlisted in the USAR on 1 July 1996.  Section III of his DA Form 3540, item 5 shows he initialed a block indicating he was enlisting/reenlisting as a former member of the Armed Forces who was discharged prior to completion of an incurred 8-year military service obligation.  He also indicated/stated he was currently not a member of the Armed Forces of the United States, that during his last previous military service he incurred a statutory military service obligation of six years and when last discharged, he had not completed the full six years and; therefore, this enlistment into the USAR was for a term of service that would equal, or exceed, the period of service that was required to complete the remaining portion of his eight-year obligation.  Additionally, acknowledged/stated that this enlistment required he commence training with a troop program unit immediately. 

5.  His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty for training on 15 July 1996, he was awarded military occupational specialty 51B (Carpentry and Masonry Specialist), and he was released from active duty training on 20 November 1996. 

6.  Orders Number 05-045-00012, issued by the 89th RSC, Wichita, Kansas on 14 February 2005, discharged him from the USAR in accordance with Army Regulation 135-178, effective 14 February 2005.  His character of service was listed as honorable.

7.  His record does not contain and he has not provided any evidence that shows he attempted to resolve his incentive entitlement issues with his USAR chain of command and was denied relief.

8. His record does not contain and he has not provided any evidence that shows he has current unpaid or outstanding students' loans.

9.  He sent a letter to his Member of Congress on an unknown date, wherein he stated:

	a.  He enlisted in the USAR on 22 August 1994, when he was a junior in high school.  His father was diagnosed with colon cancer in 1992 and he thought the Montgomery GI Bill and SLRP was the perfect way for him to pay for college and be near his father.

	b.  He was scheduled to go to BCT in August 1994, the summer before his senior year.  However, his father's cancer relapsed and the prognosis was poor.  As a result, his entry date for BCT was rescheduled to 9 August 1995.  During his senior year, his father's cancer was classified as terminal and he passed away on 13 August 1995.  He did not attend BCT on the rescheduled date for obvious reasons.  

	c. In the spring of 1996, he reached out to his unit administrator and recruiter to secure a new date to attend BCT.  Since his initial enlistment in 1994, he continued to receive a regular leave and earnings statement (LES) from his unit, and had not signed any sort of discharge paperwork.  Therefore, it took him by surprise when he was told he may not be eligible for service; however, for reasons unknown, this decision was almost immediately reversed and he was told that he needed to report the Military Entrance Processing Station (MEPS) to sign enlistment papers.  

	d.  When he reported to MEPS he was told he was no longer eligible for the SLRP or the bonus he had initially contracted for because he was considered prior service.  This came as a shock to him because he had not completed BCT; he was still receiving an LES, and did not have any break in service.   
	e.  After he graduated from BCT and Advanced Individual Training, he enrolled in the University of Iowa and later transferred to Iowa State University to pursue his bachelor's degree.  In 2003, his unit was one of the first to deploy to Iraq in support of Operation Iraqi Freedom where he spent more than a year from 2003 to 2004.  On 14 February 2005, he was honorably discharged from the USAR.  In the years following his discharge, he graduated with a bachelors' degree from Iowa State University.

	f.  During his time in the military, he inquired about the legitimacy of why he had been denied the SLRP and his bonus.  According to his recruiter and Unit Administrator, it was a mistake.  However, he was unsuccessful at having these incentives restored and was never provided a path or process to initiate a formal appeal.  

10.  His Member of Congress sent a letter to the ABCMR on 7 July 2014.  This letter provided a copy of the previously mentioned letter from the applicant, and requested the ABCMR look into the applicant's request.  

11.  In an email transmission, dated 4 September 2014, the Reserve Component (RC) Incentives Program Manager, Office of the Deputy Chief of Staff G-1, stated: 

As I reviewed this case, it became apparent that [applicant] exceeded the 24-month time limit between enlistment and attending training.  That is why MEPS considered him a prior service applicant, which made him ineligible for the SLRP.  Also, the SLRP is restricted to paying only the lender…not the Service member.  The original loans are likely either paid off or have very different balances now that they are more than 15 years old. Furthermore, I see no evidence that [applicant] attempted to reconcile this issue with the USAR.

12.  The ABCMR informed the applicant, in a letter dated 4 September 2014, that his case was being returned without action for failing to exhaust his administrative remedies prior to petitioning the ABCMR for relief.  On 17 October 2014, his application was reopened by the staff of the ABCMR. 

13.  His record contains an advisory opinion, dated 27 October 2014, issued by the RC Incentives Program Manager at the Office of the Deputy Chief of Staff,  G-1, who stated:

	a.  The applicant claims he should not have been considered a prior service applicant when he completed his documents to attend Initial Entry Training (IET), because he was already enlisted for incentives, but his reporting to training was delayed on two separate occasions due to an illness in the family.

	b.  The applicant provided enlistment documents that support his claim that he was offered both an NPSEB and the SLRP during his initial enlistment process.  

	c.  Because the applicant had no break in service, he should not have been required to renegotiate his contract at the MEPS prior to shipping to training.  Additionally, he should not have been considered as a prior service applicant. 

14.  The advisory opinion was forwarded to the applicant for comment and the applicant did not respond to the advisory opinion.

15.  His Member of Congress sent a letter to the ABCMR, dated 2 January 2015. This letter provided a copy of the previously mentioned letter from the applicant, and requested the ABCMR look into the applicant's request.  

16.  A revised advisory opinion, dated 3 April 2014 [sic, 2015], was received during the processing of this case.  This revised opinion was issued by the RC Incentives program Manager, G-1, who stated:

	a.  In his initial advisory opinion dated 27 October 2014, he opined that the applicant provided enlistment documents supporting his claim that he was offered both an NPSEB and the SLRP during his initial enlistment process.  The information that he had on hand also indicated the applicant had no break in service; therefore, he should not have been required to renegotiate his contract at the MEPS prior to shipping to training.  Additionally, it appeared he should not have been considered as a prior service applicant.

	b.  A further review of the applicant's records uncovered Discharge Orders 166-18, dated 14 June 1996, which released the applicant from the USAR effective the same date.  These orders clearly determined that the applicant indeed had a break in service.  The applicant later signed a DA Form 3540/2 on 1 July 1996, in which he initialed block 5 under Section Ill, thereby indicating he was indeed a "former member of the armed forces who was discharged prior to completion of an incurred eight-year military service obligation."  

	c.  Because the applicant had a break in service, it was correct that he should have renegotiated his contract at the MEPS prior to shipping to training.  Additionally, he should have been considered as a prior service applicant.

	d.  The advisory official recommends denial of the applicant's request for reinstatement of the NPSEB and the SLRP.

17.  The advisory opinion was forwarded to the applicant for comment and the applicant did not respond to the advisory opinion.

18.  Army Regulation 135-7 (Incentive Programs) prescribes the policies and procedures for the enlistment incentives and entitlements applicable to USAR or Army National Guard of the United States (ARNGUS) personnel/applicants.

	a.  Chapter 2 (SRIP NPSEB) states this incentive offers a $1,500.00 cash bonus to eligible Soldiers who enlist in the Selected Reserve on or after 1 April 1993, for enlistment in a bonus skill authorized or unit of the Selected Reserve authorized by Headquarters, Department of the Army.  However, enlistment bonus entitlement will stop if the Soldier fails to become MOS-qualified within a designated time limit or if the Soldier separates from enlisted status in a Selected Reserve unit of the ARNGUS or USAR for any reason, except when separated for an authorized period of nonavailability.  Separation includes, but is not limited to discharge, or transfer of the Individual Ready Reserve, Standby Reserve, or Retired Reserve.

	b.  Chapter 5.1 (SLRP) gives guidance for the administration of the SLRP.  

		(1)  Public Law 99–145, section 671(a)(1), authorizes student loan repayment for qualified Selected Reserve enlisted personnel.  This incentive is offered to qualifying nonprior, prior, and in–service personnel on signing a contractual agreement for a specified term of service in the Selected Reserve and executing DA Form 5261–4–R (Student Loan Repayment Program Addendum) between 1 October 1980 to 30 September 1981 and 1 October 1982 until rescinded.  

		(2)  Selection of the SLRP incentive and execution of DA Form 5261–4–R must be made by the person when he or she signs a Selected Reserve contractual agreement.  The applicant may select the SLRP incentive even though he or she has no outstanding loan(s) when signing the contractual agreement.  A Selected Reserve contractual agreement is executed when a person enlists, reenlists, immediately reenlists, or extends in the Selected Reserve of the Army.  

		(3)  The SLRP may be combined with any other SRIP.  In these cases the eligibility criteria of both programs must be met.  Entitlement to the SLRP will stop if the soldier separates from enlisted status in a Selected Reserve unit of the ARNGUS or USAR for any reason, except when separated for an authorized period of nonavailability.  Separation includes, but is not limited to discharge, or transfer to the Individual Ready Reserve, Standby Reserve, or Retired Reserve.

19.  Army Regulation 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the USAR and ARNGUS.  Chapter 9 sets forth the criteria and procedures and provides authority for the separation of enlisted personnel by reason of minority, erroneous enlistment, or extension of enlistment, defective enlistment agreements and fraudulent entry.   

20.  Army Regulation 15-185 (ABMCR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted for a $1,500.00 NPSEB and a $10,000.00 SLRP on 8 August 1994.  When he signed his contract, he acknowledged that he understood his entitlement to these incentives would stop, meaning he would not receive the incentives, if he was separated or discharged for any reason.

2.  The evidence of record shows he was discharged from the USAR on 14 June 1996 for a defective enlistment.  The facts and circumstances related to his separation are not available for the Board's review nor did the applicant provide evidence to refute the fact that he was not properly discharged. Therefore, in the absence of evidence a presumption of administrative regularity is assumed by the Board.  

3.  The record then shows that after an 18-day break in service, he reenlisted in the USAR on 1 July 1996.  The applicant did not renegotiate his contract prior to shipping to training; he enlisted on 1 July 1996 after a break in service.  

4.  The incentives he contracted for in his initial contract became null and void when he was discharged.  Furthermore, there is no evidence of record and the applicant did not provid evidence to show he was not permitted to contract for incentives in 1996 or that he had worked with the USAR to resolve this issue.

5.  Nevertheless, even if he had not been discharged and his initial contract had remained in effect, he still would not be entitled to the incentives for which he initially contracted because he did not become MOS qualified until 20 November 1996.  There is a 24 month requirement for Soldiers to become MOS qualified from the date of their enlistment contract.  Based on his first enlistment contract, he had until 7 August 1996 to become MOS qualified.  As he was MOS qualified in November 1996, he exceeded the 24-month requirement by 3 months.

6.  Notwithstanding the illness and subsequent death of his father and his personal arguments through his Member of Congress, there is insufficient evidence upon which to grant 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)                                         AR20140017989



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ABCMR Record of Proceedings (cont)                                         AR20140017989



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