IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018059


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, cancellation of the recoupment of his Student Loan Repayment Program (SLRP) debt.

2.  The applicant states, in effect:

* he enlisted in the California Army National Guard (CAARNG) with no prior service in 2006
* his recruiter advised him about the current benefits (e.g. GI Bill, Kicker and SLRP) available for enlisting in military occupational specialty (MOS) 92Y (Unit Supply Specialist), which was considered a critical MOS 
* being out of school for so long, he only scored a 49 on his AFQT (Armed Forces Qualification Test ); however, he needed a test score of 50 in order to the qualify for the SLRP
* he was not going to enlist, however, his recruiter assured him he would get authorization so he could get the SLRP
* the CAARNG Incentive Task Force (ITF) conducted an audit that identified issues pertaining to his SLRP eligibility
* the recoupment of $9,844.29 would be a financial strain on his Family and he feels he has lived up to his part of the enlistment contract

3.  The applicant provides:

* a personal letter to the Board
* a memorandum for record (MFR) from a member of the CAARNG ITF Audit Program, dated 14 May 2012
* a memorandum from Legal Assistance, CAARNG, dated 27 November 2013, subject: ABCMR Appeal for (Applicant)
* a memorandum from Headquarters, CAARNG, dated 12 September 2013, subject: ABCMR Appeal for (Applicant)
* ITF Bonus Audit Form
* control actions sheet
* bonus payment history
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 – Enlistment Bonus Addendum, ARNG of the U.S. (ARNGUS))
* Orders 235-1005, issued by Joint Force Headquarters, CAARNG, dated 23 August 2007
* Orders 93-1010, issued by Joint Force Headquarters, CAARNG, dated     3 April 2009
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Sallie-Mae loan account summary
* a memorandum from NGB, dated 29 October 2008, subject: Change to AGR and Mil Tech Termination and Recoupment Rules
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 July 2007
* DD Form 275 (DOD Educational Loan Repayment Program (LRP) Annual Application)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CAARNG on 29 June 2006 for a total period of   8 years (3 years in a Selected Reserve unit and 5 years in the Individual Ready Reserve (IRR) or Inactive Army National Guard (ING)).  Together with his        DD Form 4 and other allied documents, he signed an NGB Form 600-7-5-R-E (Annex S to DD Form 4, SLRP Addendum, ARNGUS), wherein he stated he was enlisting in the ARNGUS for a period of 8 years and he understood the SLRP program requirements; specifically, that the amount of reimbursement applied to his student loan(s) could not exceed $10,000.00.

2.  On 13 March 2007, he entered active duty at Fort Lee, VA, for the purpose of completing his initial entry training.  On 13 July 2007, after completing his initial entry training, he was awarded military occupational specialty 92Y (Unit Supply Specialist).  On this same date, he was given an uncharacterized character of service and released from active duty training and returned to the control of the CAARNG.  
3.  He executed a DA Form 4836 on 22 January 2009, wherein he extended his enlistment for a period of 6 years, thus establishing a new expiration term of service (ETS) date of 29 June 2015. 

4.  Orders 93-1010, issued by Joint Force Headquarters, CAARNG on 3 April 2009, ordered him to full-time National Guard duty in an Active Guard/Reserve (AGR) status with a unit in Riverside, CA.  He has subsequently been assigned to a unit in Manhattan Beach, CA and is currently serving in the rank/grade of staff sergeant (SSG)/E-6.

5.  On 19 December 2011, a member of the ITF Audit Program determined that he was never eligible to contract for the SLRP.  This official determined that by not possessing an AFQT score (50) per Army Regulation (AR) 135-7 (Army National Guard & Army Reserve – Incentive Programs), and by not enlisting for a qualifying period of service (6x2 or 8x0) per Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), section E8.1.2.1, he was not eligible to contract for SLRP and as a result, full recoupment was required.          

6.  On 14 May 2012, an official of the CAARNG notified him, via memorandum, that an audit determined his incentive contract(s) would be terminated for the reason that payment was made in violation of Army regulation and in violation of DOD guidance.  This notified him that any recoupment amount would be forwarded for debt collection.  It stated the recoupment was for his SLRP and Non-Prior Service Enlistment Bonus, in the amount of $9,844.29.

7.  A review of his records does not reveal any documentation from the United States Property and Fiscal Office (USPFO) for California that informed him of a debt to the U.S. Government. However, based on his application to the Board and correspondence he has in his files, there is a presumption that he has received an official debt collection notice.          

8.  There is available documentation in the record that details prior payments to his student loan(s) by the CAARNG, under the SLRP, totaling $9,844.29.  

9.  On 17 October 2014, in connection with the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, National Guard Bureau.  The advisory official recommended approval of the applicant’s request and opined:

	a.  The applicant enlisted in the CAARNG in 2006.  According to the Soldier, his recruiter informed him that he qualified for and offered him the SLRP incentive at the time, in exchange for a 3-year commitment of service.  Although (the applicant) was one point short of passing his AFQT, his recruiter assured him that he would receive authorization for the SLRP and convinced him to enlist.

     b.   Soldier contends that through the audit process conducted by the ITF, he was made aware of issues pertaining to his SLRP.  Specifically, his AFQT score was 49 when the bonus addendum stipulated a score of 50 was required.  Additionally, he was told that he had not enlisted for six years per DoDI 1205.21 section E8.1.2.1, and that his payments were in excess of the $3,000 annual limit, in accordance with Title 10 USC, section 16301.  

     c.  In accordance with Army Regulation 135-7, section 5-1 "To be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily per AR 135-91.  A person must serve in the Selected Reserves for the full term of the contractual agreement per paragraph 5.1-3(b).  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."  

     d.  The applicant kept his end of the contractual obligation and, therefore, should not be penalized because of administrative errors and misrepresentation by his recruiter at the time of enlistment.  Recommend that the ABCMR favorably consider the applicant's case to terminate recoupment.

     e.  The CAARNG concurs with this recommendation.

10.  On 22 October 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  However, he did not respond.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, USAR, and Army National Guard.
Chapter 6, section II, provides that guidance counselors will verify the applicants' eligibility for enlistment and counsel applicants who failed to meet specific qualification for MOS, options, and assignments for which they applied and advise them of all other available options that would still meet the applicant's needs, wants, and desires, as well at the needs of the Army.

12.  Title 10, U.S. Code, section 1552, the law which provides for the Board, states, "The Secretary may pay from applicable current appropriations a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for cancellation of the recoupment of his SLRP debt was carefully considered.

2.  By law, the Secretary concerned may authorize the SLRP to eligible Soldiers in conjunction with enlistment/reenlistment in the Selected Reserve.  The law allows the Secretary concerned the latitude in establishing the criteria and eligibility for the SLRP.  The governing regulation stipulates that guidance counselors are required to verify the applicants' eligibility for enlistment and counsel applicants who failed to meet specific qualifications for MOS, options, and assignments, for which they applied and advise them of all other available options that would still meet the applicants' needs, wants, and desires as well as the needs of the Army.

3.  The evidence of record confirms the applicant entered into an enlistment contract on 29 June 2006 in good faith, which included authorization for SLRP benefits not to exceed $10,000.00.  However, through no fault of his own, he was later discovered to be ineligible for the SLRP and his prior payments were terminated and recoupment initiated.

4.  In view of the facts of this case and in accordance with the NBG advisory opinion, it is evident that errors/omissions were committed during the processing of his enlistment into the CAARNG.  Therefore, it would be appropriate and serve the interest of justice and equity to correct his record by showing the Army authorized him to receive the SLRP benefit in question, by cancelling the recoupment action with any accrued interest, and to reimburse him any monies paid as a result of the recoupment action.   
	
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 all Department of the Army and State ARNG records of the individual concerned be corrected by showing the Army authorized him to receive the SLRP benefit in question, by cancelling the recoupment action with any accrued interest, and to reimburse him any monies paid as a result of the recoupment action.  





      _______ _   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)                                         AR20120019427



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018059



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1