IN THE CASE OF:	   

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140020268 


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 correction of his military records by showing he was authorized the Student Loan Repayment Program (SLRP).

2.  The applicant states the SLRP was unjustly denied him because he failed the Army physical fitness test (APFT).  According to the original contract he signed with the Iowa Army National Guard (IAARNG), he is not to be suspended from the SLRP for APFT failure.

3.  The applicant provides copies of:

* Annex L (SLRP) to DD Form 4 (Enlistment Document), dated 13 April 2009
* DD Form 2475 (DOD Educational Loan Repayment Program (LRP) Annual Application) dated 15 February 2013
* A Memorandum for the IAARNG, subject: Request for  Exception to Policy (ETP) for the SLRP, dated 1 August 2014
* A Memorandum for the Applicant from the IAARNG, subject: Notification of Incentive eligibility Termination, dated 21 August 2014

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.  On 13 April 2009, the applicant enlisted in the ARNG.  On this same day, he signed Annex L (SLRP) to DD Form 4 (Enlistment Document).  This form shows:

	a.  he was issued a control number;

	b.  he was a non-prior service applicant who enlisted in the ARNG for a minimum of 6 years and a concurrent military service obligation of 8 years;

	c.  he had two student loans totaling $57,383.00;

	d.  he was only authorized repayment of loans not to exceed $50,000;

	e.  he understood his SLRP would be suspended for any of the following:

* Any period of non-availability (placement in the Inactive National Guard (ING) for up to 1-year due to personal reasons and up to 3 years for missionary obligations
* A flag (suspension of favorable personnel action) for an adverse action not including failure to maintain body fat standards or APFT failure

	f.  he understood that his student loan would be repaid annually on the anniversary of his enlistment in an amount not to exceed 15 percent (not to exceed $7,500 per year) of the loan principal or $500.00 whichever was greater; and

	g.  he and the enlisting official signed and dated the form on 13 April 2009.

3.  In a memorandum, subject: Request for ETP for SLRP, dated 1 August 2014, the Deputy G1, ARNG, responded to the IAARNG Incentive Manager concerning the applicant's request for an ETP.  The memorandum stated:

	a.  the applicant requested to retain his $50,000.00 SLRP;

	b.  the applicant had two record APFT failures within 12 months which violated the ARNG SRIP 07-06 as updated on  1 March 2009;
	c.  the applicant's contract/SLRP addendum was obsolete and violated the ARNG SRIP 07-06 as updated on 1 March 2009; and

	d.  the State Incentive Manager was directed to terminate with recoupment effective the date of the second APFT failure.

4.  In a memorandum, dated 21 August 2014, the State Incentive Manager notified the applicant of the following:

	a.  his SLRP was terminated due to failure to comply with contract requirements;

	b.  the amount of his recoupment was zero; and

	c.  he was eligible to appeal the termination of his SLRP with this Board.

5.  Orders 335-118, IAARNG, dated 1 December 2014, announced the applicant's discharge from the ARNG effective 12 April 2015.  He was transferred to the U.S. Army Reserve Control Group (Annual Training).

6.  ARNG Selected Reserve Incentive Program (SRIP), Policy Guidance for Fiscal Year (FY) 2007 (Policy Number 07-06 with updates) effective 1 March 2009 provides for the suspension of incentives when a Soldier has repeat non-consecutive record APFT failures within a 12-month period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records by showing he was authorized the SLRP because he was unjustly denied this incentive based on his two APFT failures .

2.  The available evidence shows the applicant contracted for a minimum period of 6-years in the ARNG.  He enlisted on 13 April 2009 and was discharged effective 12 April 2015, thereby completing his full 6-year obligation to the ARNG.

3.  The applicant's SLRP was suspended because he had two APFT failures within a 12-month period.  However, it appears this requirement was established in the month prior to his enlistment in the ARNG.  The contract used by the IAARNG did not include this recent change.  The NGB stated in its denial of the applicant's request for an ETP that his contract was obsolete and violated the ARNG SRIP 07-06 as updated on 1 March 2009.  While it appears the contract was in disagreement with the updated policy, it is unfair to hold the applicant accountable for this error.  It is not reasonable to believe he could have known the contract was out of date.

4.  In view of the above, and as a matter of equity, the applicant should not be penalized for the mistakes of the Incentive Manager who should have known about the recent update and secured a proper contract for the applicant to sign.  Accordingly, the applicant should be authorized the full contracted amount of his SLRP for the 6-year period he served in the ARNG.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing an ETP was approved allowing him to retain the SLRP in accordance with the terms of his SLRP addendum dated 13 April 2009, notwithstanding the recent change of policy;

	b.  cancelling any SLRP recoupment action and reimbursing him any monies that may have been recouped; and

	c.  paying the balance of his SLRP funds as specified in his SLRP addendum.



      __________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)                                         AR20140020268



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020268



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1