IN THE CASE OF:  	  

		BOARD DATE:  6 August 2015	  

		DOCKET NUMBER:  AR20140018945


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, termination of the recoupment of funds under the Student Loan Repayment Program (SLRP).

2.  The applicant states, in effect:

   a.  after having prior service in the U.S. Air Force, he enlisted in the Connecticut Army National Guard (CTARNG) in December 2007;
   
   b.  in July 2008, he applied for an interstate transfer to the California Army National Guard (CAARNG) and in December 2008 inquired about his SLRP benefits;
   
   c.  Master Sergeant (MSG) J_____ informed him he qualified for the SLRP and that she would process his payments directly to Sallie Mae;
   
   d.  through an audit process conducted by the Incentives Task Force (ITF), he learned he violated Department of Defense Instructions 1205.21 because he was not military occupational specialty (MOS) qualified when he contracted (for the incentive) and a violation of the law occurred when payouts were made to private loans;
   
   e.  he was referred to and received guidance from Legal Assistance but feels he should be relieved of any debt due to the error, because he relied on those in the position and rank representing knowledge and expertise on the subject matter;
   f.  he entered into a contract trusting that he would be eligible for the SLRP as a result of his recruiter’s and MSG J_____'s misunderstanding or manipulation of Army National Guard (ARNG) policy;
   
   g.  he is fulfilling his end of the contract and might not have enlisted had the SLRP not been offered; 
   
   h.  the recoupment action is an unexpected unplanned expense that comes 3 years late and presents a disturbing financial strain on him and his family; and
   
   i.  his record should be corrected to reflect the agreement he entered into and relieve him of recoupment of the incentive for which he has devoted 6 years of his life.

3.  The applicant provides:

* A self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* CAARNG Memorandum
* National Guard Bureau (NGB) Form 22-5 (Addendum to DD Form 4)
* DD Form 4 (Enlistment/Reenlistment Document)
* NGB Form 21 (Annex A-DD Form 4 (Enlistment/Reenlistment Agreement,-ARNG)
* Addendum to DD Form 4 (Approval and Acceptance By Service Representative for Interstate Transfer in the ARNG)
* DD Form 1966 (Record of Military Processing-Armed Forces of the United States)
* DA Form 5435-R (Statement of Understanding-The Selected Reserve Montgomery GI Bill)
* DD Form 215 (Correction to DD Form 214)
* Discharge Order
* MOS Order
* 3 pages of email communication

CONSIDERATION OF EVIDENCE:

1.  On 30 December 2007, the applicant enlisted in the CTARNG.  His DD Form 1966/3 (Record of Military Processing) shows in item 32 (Specific Option/Program Enlisted For, Military Skill, or Assignment to a Geographical Area Guarantees) the entries:

* 6 years CTARNG
* $15,000 Prior Service Bonus
* MOS 92F
* 192nd Engineer Battalion
* Rank – PV2 (private/E-2)

2.  He successfully completed advanced individual training and was awarded MOS 92F on 8 May 2008.  His record is void of any annexes or other documents that show he enlisted for the SLRP option.

3.  His Official Military Personnel File includes an NGB Form 22-5, which shows he received an approved interstate transfer from the CTARNG to the CAARNG on 26 July 2008.

4.  Memorandum, dated 17 January 2012, from the CAARNG showing the applicant was notified the CAARNG audited his bonus and/or SLRP incentive and determined his SLRP incentive contract(s) would be terminated with recoupment of payments in the amount of $9,000 and would be forwarded for debt collection because he was not eligible to contract for the payments based on the following:

* he was not duty MOS qualified
* no valid loan documents were submitted
* private educational loans are ineligible for the SLRP

5.  The applicant continued to serve in the CAARNG until he was honorably discharged on 29 December 2013, having completed 6 years of creditable military service.

6.  During the processing of this case, on 3 November 2014, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended approval of the applicant's request and stated:

   a.  SGT _______ initially enlisted in the CTARNG on 30 December 2007, with an 8 year agreement.  On 26 July 2008, he transferred to the CAARNG in primary MOS (PMOS) 92F which according to his addendum was a critical skill PMOS.
   
   b.  SGT _______states that in December 2008, he contacted the CAARNG incentives manager regarding the status of his SLRP benefits.  He was told to send a copy of his enlistment contract and loan paperwork, at which point he was informed that he qualified for the SLRP, and that payments would be processed directly to Sallie Mae.
   
   c.  Through the audit process conducted by the ITF, SGT _______was specifically made aware he was not MOS qualified at the time of his contract, in violation of Department of Defense Instruction (DODI) 1205.21, section E8.1.1.3 and his bonus was paid out to private loans in violation of Title 10, U.S. Code (10 USC), section 1630 (a)(1).
   
   d.  Based on his noncommissioned officer evaluation reports and academic evaluation reports, SGT _______exceeded performance standards.  He entered into his contract under the impression that he was eligible for the SLRP.  SGT _____ should not be penalized due to misrepresentation by his recruiter and incentive manager, which was no fault of his.  It is requested the Army Board for Correction of Military Records consider SGT _______’s case and his request to terminate recoupment.
   
   e.  Upon several attempts to coordinate with the ARNG Incentives Branch for input regarding SGT _______’s request, no response was received.  The CAARNG concurs with this recommendation.
   
7.  On 5 November 2014, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. No response was received.

8.  DODI 1205.21 prescribes policy, assigns responsibilities, and prescribes procedures for management of Reserve Component incentive programs.

	a.  Section 6.2 (Written Agreements), as a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating that the member has been advised of and understands the conditions under which continued entitlement to unpaid incentive amounts shall be terminated and which advance payments may be recouped.  That agreement shall clearly specify the terms of the Reserve service commitment that authorizes the payment of the incentive to the member.

	b.  Section E8.1.1.3. provides for those enlisting, reenlisting or extending for assignment in a critical skill approved for loan repayment by the Secretary concerned, and currently hold that specialty or, if enlisting, shall meet critical skill qualification on completion of IADT, and agree to serve the entire enlistment in that critical skill unless removed for the convenience of the Government. 

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the missing enlistment documents outlining the SLRP incentive for which the applicant contracted, information gleaned from the advisory opinion confirms an audit process conducted by the ITF revealed he enlisted in a critical skill MOS and was offered the SLRP incentive.  The audit process also showed the applicant was not entitled to the SLRP incentive because he was not MOS qualified at the time of his contract and his bonus was paid out to private loans, in violation of DODI 1205.21 and 10 USC, section 1630 (a)(1), respectively.

2.  The evidence of record shows, on 30 December 2007, the applicant enlisted in the ARNG in good faith and continuously served until he was honorably discharged on 29 December 2013, thereby completely fulfilling the requirements of his 6 year contractual obligation.  He was made a written promise by his recruiter and incentive manger.  He should not be penalized for errors committed by these officials.  Therefore, his record should be corrected to cancel or terminate the SLRP recoupment action against him.  Further, the Chief, Personnel Policy Division, NGB is in favor of this recommendation.

3.  In view of the foregoing, the applicant's request should be granted.

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 State ARNG records and Department of the Army records of the individual concerned be corrected by showing the recoupment action taken against him for payments he 







received under the SLRP has been cancelled, thus allowing him to retain any payments already made toward his student loans.  Any SLRP monies that have been recouped should be returned to him.



      _______ _   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)                                         AR20140018945





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ABCMR Record of Proceedings (cont)                                         AR20140018945



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