IN THE CASE OF:  	  

		BOARD DATE:  29 October 2015 	  

		DOCKET NUMBER:  AR20140020376 


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, reconsideration of her previous request for correction of her records to show her student loans are eligible for further repayment under the Student Loan Repayment Program (SLRP). 

2.  The applicant states:

   a.  The Board's previous determination that her SLRP would be "terminated without recoupment" effective 25 May 2011 was based on two consecutive body fat standard failures within a 1-year period.  She is providing as supporting evidence a blank SLRP Addendum generated by the National Guard Bureau (NGB) that was valid for the time period that she signed the contract.  It states under Section V(j) (Termination), "Two consecutive record [Army Physical Fitness Test (APFT)] failures or two consecutive failures to meet fat standards."  Nowhere in the addendum does it state two failures in a 1-year time frame. 

   b.  She is also providing as evidence four DA Forms 5501 (Body Fat Content Worksheets) to support that she did not have two consecutive failures which would have resulted in a negative impact to her SLRP contract.  All of these forms are filed in her interactive Personnel Electronic Records Management System (iPERMS) record.

   c.  The NGB denied her reenlistment bonus because of her voluntary move to another military occupational specialty (MOS).  At the time of her reenlistment, she also contracted for a critical unit identification code (UIC) reenlistment bonus.  This was a 6-year bonus that was tied to a critical UIC and not a critical MOS.  She voluntarily changed her MOS for promotion purposes, but this did not violate the SLRP addendum or her reenlistment bonus addendum.  The Reenlistment/Extension Bonus (REB)//SLRP incentives were tied to a critical UIC, in which she had been assigned to the same company, Headquarters and Headquarters Company (HHC), 198th Signal Battalion, for her entire career to include two deployments (Iraq and Afghanistan).

   d.  The recreated SLRP Addendum from that time period states the voluntary movement from critical UIC or critical skill, since her REB was tied to the critical UIC, allowed her to move within the unit without a negative impact to her SLRP bonus.  She attached her reenlistment bonus as well as the approved NGB exception to policy (ETP) memorandum for the REB to show that she selected the critical UIC option and not the critical skill option.  This was an oversight on her part because she should have added this to her first application.

3.  The applicant provides copies of the following:

* blank (NGB) Form 600-7-5-R-E (Annex L – SLRP Addendum, Army National Guard (ARNG) (valid from 1 March through 30 September 2009)
* NGB Form 600-7-6-R-E (Annex R, REB Addendum, ARNG)
* four DD Forms 5501
* ETP memorandum
* previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140008719 on 23 September 2014.

2.  The applicant provided copies of an NGB Form 600-7-6-R-E, a blank NGB Form 600-7-5-R-E, and four DD Forms 5501.  This is considered new evidence that warrants consideration by the Board.

3.  The applicant enlisted in the Delaware ARNG (DEARNG) on 7 April 2003.  She completed training and was awarded MOS 92Y (unit supply specialist).  She extended in the DEARNG on 17 March 2009 for 6 years.

4.  A review of her records posted in iPERMS failed to reveal a copy of an NGB Form 600-7-5-R-E (Annex L) she presumably executed and signed for entitlement to an SLRP.  However, she provides:

   a.  An NGB Form 600-7-6-R-E she executed and signed on 1 March 2009 for entitlement to a REB.  Annex R stated in Section III (Bonus Amount and Payments):  "Incentive amount and payments will be as follows:  "I will receive a total bonus payment in the amount of $10,000.00 for a 6-year reenlistment/ extension in the NGB approved Critical UIC of ___."  The form does not list the critical UIC.

   b.  A blank NGB Form 600-7-5-R-E which stated in:

		(1)  Section II (Eligibility):  Prior service or current ARNG service members.  I am duty MOS qualified (DMOSQ) for the position that I am enlisting/reenlisting/extending.

		(2)  Section V (Termination):  I understand that I may be terminated from bonus eligibility for any of the following reasons:  Voluntarily transfer out of the critical UIC or critical skill for which bonus is approved or two consecutive record APFT failures or two consecutive failures to meet body fat standards.

5.  Her records contain the following:

   a.  An SLRP memorandum, dated 4 May 2010, wherein the DEARNG advised the Sallie Mae SL Services that the applicant was eligible to participate in the DEARNG SLRP.

   b.  A DA Form 5501, dated 25 June 2010, showing her actual weight was 199 pounds (lbs), she was not in compliance with Army standards, and she was recommended for a monthly weight loss of 3-8 lbs.

   c.  Two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 1 July 2010, showing actions were initiated effective 26 June 2010 for the "Weight Control Program" and an "APFT failure."

   d.  A DA Form 268, dated 19 September 2010, showing removal of the flag for the APFT effective the same day and closure of the case with favorable results.

   e.  A DA Form 5501, dated 4 December 2010, showing her actual weight was 172 lbs and she was in compliance with Army standards.

   f.  A DA Form 268, dated 4 December 2010, showing removal of the flag for the "Weight Control Program" effective the same day and the closing of the case with favorable results.

   g.  A DA Form 5501, dated 1 February 2011, showing she was in compliance with Amy standards.

6.  She attended the Automated Logistical Specialist Course from 19 February to 4 March 2011.  Consequently, Orders Number 097-509, issued by the DEARNG on 7 April 2011, awarded her primary MOS (PMOS) 92Y and secondary MOS (SMOS) 92A (automated logistical specialist) effective 4 March 2011.

7.  She provided a copy of a DA Form 5501, dated 25 May 2011, showing her actual weight was 176 lbs, she was not in compliance with Army standards, and was recommended for a monthly weight loss of 3-8 lbs.  

8.  A DA Form 268, dated 25 May 2011, shows a flag was initiated for the "Weight Control Program."

9.  Orders Number 222-503, issued by the DEARNG on 10 August 2011, promoted her to sergeant/E-5, effective 4 August 2011.  The orders also withdrew her PMOS of 92Y and SMOS of 92A and awarded her PMOS 92A and SMOS 92Y.  She was still assigned to HHC, 198th Signal Battalion. 

10.  A DA Form 268, dated 3 January 2012, shows the flag for the "Weight Control Program" was removed effective 3 December 2011 and the case was closed with "Other final action(s)."

11.  On 25 March 2013, the applicant's company commander requested an ETP for the applicant to receive the SLRP.  The company commander stated:

   a.  The applicant reenlisted for 6 years with an REB and an SLRP under the Selected Reserve Incentive Program (SRIP) 07-06 with updates (effective 10 August 2007 – 15 June 2010).  Although the SLRP addendum was missing, a review of the DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) supported an incentive being offered at the time of reenlistment.  An SLRP Bonus Control Number (BCN) was requested and approved prior to the applicant's signature date on the DA Form 4836.  That indicated that an incentive was offered by the DEARNG in good faith and the applicant had otherwise fulfilled her obligations under the contract as of the date of her reenlistment.

   b.  Three DD Forms 2475 (Department of Defense Loan Repayment Program Annual Application) had been generated and signed, resulting in three annual payments to the loan services since the applicant reenlisted.  Additionally, the applicant was currently preparing to deploy with her unit.  The applicant was an asset to the unit as well as the DEARNG.

12.  On 27 March 2013, the Deputy Chief of Staff, Personnel, DEARNG, requested an ETP for the applicant to receive the SLRP.  He stated the reason for the request was because of a missing SLRP addendum.  Although the SLRP addendum was missing, the justification for the addendum was documented on the DA Form 4836 at the time of the applicant's 6-year reenlistment.

13.  She provided a letter, dated 12 November 2013, wherein she stated she reenlisted for 6 years.  She was MOS qualified (MOSQ) in MOS 92Y at the time of her reenlistment.  The position she held during drill weekends was a 92A position.  Finally, her administration NCO asked her if she wanted to go to school to become 92A MOSQ in her current position.  The NCO explained that this would help the unit bring the MOSQ rates up, but it would also get her promoted since the MOS 92Y was currently overstrength in her State.  Since her SLRP contract was based on her UIC and not her MOS she jumped at the chance to accept the opportunity.

14.  In a Request for ETP for the SLRP memorandum, dated 7 January 2014, the NGB, Deputy G1, advised the DEARNG of the denial of the applicant's retention of the SLRP with recoupment.  The NGB official stated:

   a.  The applicant's SLRP addendum could not be found which violated ARNG SRIP Policy Number 07-06 effective (1 March 2009 through 15 June 2010).

   b.  The applicant was not serving in MOS 92Y, the MOS for which she contracted.  That was a violation of ARNG SRIP Policy Number 07-06.  She voluntarily transferred out of her contracted MOS effective 4 August 2011.

   c.  No BCN was requested which was a violation of ARNG Implementation Guidance for the ARNG Critical Skill REB, dated 1 February 2006.

   d.  The applicant executed an extension that identified an incentive being offered and a review had determined she received a REB.  The applicant claimed the SLRP was offered for the same extension period, but she could not substantiate that claim because the SLRP BCN was requested approximately 1 year after the date of extension and the SLRP incentive addendum could not be located.  Therefore, remaining consistent with the rules for investigating ETP requests, the SLRP incentive addendum could not be located.





15.  On 23 September 2014, in response to her previous request, the ABCMR determined the evidence of record showed the following:

   a.  An SLRP BCN was processed and approved through the Information Management and Reporting Center system.  The applicant received annual SLRP payments for Fiscal Years 2010, 2011, and presumably in 2013.

   b.  Her command supported the argument that she completed the SLRP Addendum which the State lost/failed to file in her records.  The State offered her the SLRP in good faith and she should not be penalized for their error.

   c.  She was entitled to have an SLRP Addendum filed in her official military personnel file; however, the length of her entitlement to the annual payments needed to be addressed:  The addendum she would have completed clearly stated two consecutive body fat standard failures within a 1-year period would result in termination of an incentive.  However, that was a termination without recoupment.

   d.  Her records contained two DA Forms 5501 showing she exceeded her authorized body fat percentage on 25 June 2010 and 25 May 2011.  She was flagged on both occasions.  She had two consecutive body fat standard failures within a 1-year period; therefore, the SLRP incentive should have been terminated without recoupment effective 25 May 2011.

   e.  She would have been eligible for an SLRP payment in March 2010 and March 2011.  Since the SLRP Addendum required termination without recoupment she was not required to repay those annual payments.

16.  In view of the foregoing, the Board recommended the applicant's records be corrected to show she had a valid SLRP contract, dated 19 March 2009.  However, her record should also be corrected to show that the contract or her entitlement to the SLRP annual payments were terminated without recoupment, effective 25 May 2011, due to her two consecutive body fat standard failures within a 1-year period.  The Board denied her request to receipt of further annual SLRP payments.

17.  Title 37, U.S. Code, section 373, allows for the repayment of unearned portion of bonus, incentive pay, or similar benefit, and termination of remaining payments, when conditions of payment not met.




DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms the applicant contracted for an SLRP incentive at the time of her extension on 17 March 2009, for 6 years, by virtue of her command confirming an SLRP BCN was processed and approved and three annual payments had been made to her loans.  She also had an REB incentive on that date.

2.  The applicant had two body fat standard failures on 25 June 2010 and 25 May 2011.  However, she was found to be in compliance with Army standards on 4 December 2010 and a flag for the "Weight Control Program" was closed favorably the same day.  The blank SLRP addendum she provides and the ARNG SRIP Guidance states an incentive entitlement would be terminated as a result of two consecutive, meaning back to back, failures to meet body fat standards.  

3.  The Board previously recommended correction of her records to show she had a valid SLRP contract, since the original contract was lost/failed to be filed in her record, and termination of that incentive without recoupment effective 25 May 2011, as a result of her two consecutive body fat failures within a 1-year period.  Her request for receipt of further annual SLRP payments was denied.

4.  Notwithstanding the loss of her SLRP Addendum, her voluntary transfer out of her contracted MOS and her APFT failure, the fact remains, she did not have two consecutive body fat standard failures during the period of her SLRP contract and she was unjustly denied further annual SLRP payments.  

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 amendment of the ABCMR’s decision in Docket Number AR20140008719, dated 23 September 2014.  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 authorizing further SLRP payments to her for the appropriate entitlement years.




      __________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)                                         AR20140020376



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ABCMR Record of Proceedings (cont)                                         AR20140020376



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