IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140020320 


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 the date he executed his DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) from 22 to 23 August 2006.  In effect, he requests to retain the Student Loan Repayment Program (SLRP) incentive in the New York Army National Guard (NYARNG).  

2.  The applicant states the erroneous date on the DA Form 4836 conflicts with the DA Form 5261-4-R (SLRP Addendum) and the National Guard Bureau (NGB) Form 600-7-3-R-E (Reenlistment/Extension Bonus Addendum) where he hand-wrote the dates of 23 August 2006.  His unit prefilled the documentation and did not execute the contract on the right date. 

3.  The applicant provides:

* DA Form 4836, dated 22 August 2006
* Annex R, dated 23 August 2006
* DA Form 5261-4-R, dated 23 August 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 29 May 2004
* email from the State Incentives Manager
* Exception to Policy (ETP) request and allied documents 
* NGB denial of Exception to Policy




CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Maryland Army National Guard (MDARNG) on 27 August 1999.  He entered active duty for training (ADT) on 13 January 2000 and completed required training for award of military occupational specialty (MOS) 95B (Military Police).  He was honorably released from ADT on 17 May 2000

2.  He served in a variety of assignments including two periods of mobilization from 12 September 2001 to 30 September 2002 and 7 July 2003 to 29 May 2004 in Afghanistan. 

3.  On 16 June 2004, after the Army reorganized various MOSs, he was issued orders awarding him MOS 31B, which replaced MOS 95B, and on 20 August 2005, he executed a 1-year extension in the MDARNG.  His new expiration of term of service (ETS) date was established as 26 August 2006.

4.  On 26 January 2006, he requested and was approved for a transfer from the MDARNG to the NYARNG.  He was assigned to Headquarters and Headquarters Company, 107th Corps Support Group, New York City, NY. 

5.  On 22 August 2006, he executed a 6-year extension in the NYARNG.  He agreed to remain in the NYARNG during the period of this extension.  His new ETS date was established as 26 August 2012.  

6.  On 23 August 2006, he signed/initialed two documents: Annex R to the DA Form 4836 and DA Form the DA Form 5261-4-R as follows: 

	a.  Annex R (Reenlistment/Extension Bonus Addendum) shows upon his extension, he is eligible for the Selected Reserve Incentive Program (SRIP) and that he did not have more than 16 years of total military service at ETS.  He is eligible for a 6-year reenlistment or extension bonus and would receive a total bonus of $15,000, to be processed on the date his extension or reenlistment takes effect. 

	b.  DA Form 5261-4-R (SLRP Addendum) shows he agreed to serve in MOS 31B and is extending for 6 years.  He would receive a maximum of $20,000 student loan repayments.  The amount to be paid each year will not exceed 15 percent of the original balance (not to exceed $3,000) or $500, whichever is greater, plus accrued interest.  He acknowledged he would be subject to reduced benefits if he moved to an MOS not eligible for this amount.  He also acknowledged that his entitlement to loan repayment under the SLRP would be terminated if he moved to an MOS or reclassified into an MOS other than the one he contacted for.  

7.  His Noncommissioned Officer Evaluation Reports (NCOER) for the rating periods 1 September 2006 through 30 November 2007 and 1 December 2007 through 1 November 2008, show he was serving in MOS 31B with the 369th Sustainment Brigade, NYARNG. 

8.  On 27 January 2009, he was reassigned to the position of Senior LAN Manager, in MOS 25B (IT Specialist) within the 369th Sustainment Brigade.  

9.  His NCOER for the rating period 2 November 2008 through 30 November 2009 and subsequent NCOER(s) show he was assigned to the position of Senior LAN Manager, in MOS 25B within the 369th Sustainment Brigade.

10.  On 29 July 2012, he executed a 3-year extension in the NYARNG.  Additionally, he attended the IT Specialist Course, Phase I, from 6 to 26 January 2013, and on 26 March 2013, NYARNG awarded him primary MOS 25B. 

11.  At some point, he submitted an ETP through the NYARNG to the NGB.  He contended that he signed the 2006 extension on the wrong date and that his eligibility for the SLRP would have had to have been verified before the SLRP Control Number was issued.  He requested favorable consideration to retain the SLRP incentive.  His commander favorably endorsed his request. 

12.  On 28 October 2014, the NGB denied his request to retain the SLRP incentive.  An NGB official stated: 

* the applicant did not contract for the incentive at the time of his extension, and is not eligible to retroactive entitlement, which violates ARNG SRIP
* the applicant was not serving in the MOS for which he contracted for, which violates ARNG SRIP
* the applicant signed the DA Form 5261-4-R instead of the NGB 600-7-5-R-E (SLRP Addendum) (an incorrect addendum) which violates ARNG SRIP
* the applicant executed an extension that did not identify that an incentive was offered at the time of extension 
* the bonus control number was requested over 1 year after the extension
* remaining consistent with the rules of the ETP requests, the applicant's request is denied 
* the State Incentive Manager would terminate the incentive with recoupment effective the start date of the contract

13.  On 6 November 2014, the NYARNG Director of Military Personnel notified the applicant that his ETP was denied by the NGB and that he had the right to petition this Board if he felt there was an error or an injustice. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant executed a 6-year extension of his enlistment in the NYARNG on 22 August 2006.  However, he did not sign the Extension Cash Bonus Addendum and the SLRP Addendum until the next day.  Additionally, he executed the incorrect SLRP Addendum.  Since there is a mismatch between the two dates, and because he transferred out of the contracted MOS, the NGB is now terminating his incentive with recoupment.  

2.  The applicant is not an incentive manager himself.  Neither is he a reenlistment or retention specialist.  He signed his extension, in good faith, with the stipulation that he had an incentive.  He signed when and where he was told by his retention/reenlistment specialist.  Not only that, the very same addendum that has a mismatched date was actually assigned a bonus control number, albeit a year later.  

3.  He clearly extended in good faith, followed the instructions of the subject matter experts who extended him, signed the addendum that he was told to sign, and he was issued a Bonus Control Number.  He continues to faithfully serve today in the ARNG.  

4.  It is clear that administrative errors were committed in the processing of his extension and bonus addendums.  It is equally clear as a result of this improper guidance, he is being forced to pay back or is denied a hard-earned incentive.  He should not be penalized for an action that was not his fault.  

5.  On the other hand, the applicant contracted for MOS 31B and agreed on 22 August 2006 to serve in this MOS for 6 years, through 26 August 2012.  Regrettably, he breached this contract when he transferred to MOS 25B on 27 January 2009.  Once he breached the contract, he was subject to termination of the incentive and because he did not fulfill the contractual agreement, recoupment appears to be appropriate.  

6.  Nevertheless, as a matter of equity, he should receive at least partial administrative relief for all payment of his authorized loans, from 22 August 2006 to 27 January 2009 in accordance with SLRP regulatory guidance. He should not be entitled to any payments beyond the date he transferred out of the MOS he contracted for. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* amending Annex R to the DA Form 4836 to show it was executed, witnessed, and assigned a Bonus Control Number on 22 August 2006
* correcting his records to show he executed the proper SLRP Addendum [NGB 600-7-5-R-E (SLRP Addendum) instead of DA Form 5261-4-R] also on 22 August 2006 
* showing he provided the State Incentive Manager a copy of all promissory notes and proof of disbursement upon his extension
* stopping any recoupment action of his SLRP payments made between 22 August 2006 and 27 January 2009

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to retaining the entire $20,000 SLRP incentive. 



      _____________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)                                         AR20140020320



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ABCMR Record of Proceedings (cont)                                         AR20140020320



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