BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20140020941 


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:

* correction of his records to show he was entitled to the Student Loan Repayment Program (SLRP) in the amount of $6,000
* relief from the recoupment of the $6,000 he was paid for the SLRP
* removal from his credit report of the negative reports regarding this issue

2.  The applicant states his loans were paid without supporting loan documentation and there was no contract to reflect that all paperwork was in order.  He has the signed documents to support the loans that he received for the Montgomery GI Bill (MGIB).  In the memorandum from the Army, the file was sent to an old address years after he left the military.  Notification of the issue was not sent to the mailing address of his home of record (HOR).  He indicated he would appear before the Army Board for Correction of Military Records (ABCMR) if the Board determined it to be warranted.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two memoranda
* DA Form 5435-R (Statement of Understanding - The Selected Reserve MGIB)
* a letter, dated 7 March 2011
* 12 pages titled Financial Aid Review, printed on 30 October 2014
* an Information Paper, dated 12 November 2014
CONSIDERATION OF EVIDENCE:

1.  Credit reports are not Army records.  The ABCMR may only correct Army records.  The applicant is advised that if any relief is granted in this case that may affect a credit report, he may pursue correction of his credit report with the various credit reporting companies.  This issue will not be discussed further in these proceedings.

2.  Having had prior active service in the U.S. Navy, the applicant enlisted in the California Army National Guard (CAARNG) on 9 December 2003 for a period of 1 year.  

3.  On 4 December 2004, he extended his enlistment in the CAARNG for a period of 6 years for the SLRP of $6,000 and a bonus of $15,000.  His record does not contain an Annex L (SLRP Addendum) to DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) for this period of service.  His record does contain an Annex B (Bonus Addendum) to DA Form 4836, dated 15 December 2004.

4.  On 4 December 2006 he transferred to the Virginia ARNG (VAARNG) and on 23 January 2009, he transferred to the North Carolina ARNG (NCARNG).  On 23 January 2009, he was promoted to the rank/grade of sergeant (SGT)/E-5.

5.  He was ordered to active duty as a member of his NCARNG unit in support of Operation Iraqi Freedom (OIF) and he entered active duty on 25 April 2009.  He served in Iraq from 20 July to 7 October 2009.

6.  On 20 December 2010, he was retired from active duty in the rank of SGT and as a member of the ARNG by reason of temporary disability due to a combat-related injury.  The DD Form 214 he was issued for this period of service shows his HOR as an address in Portsmouth, VA, and his mailing address after separation as an address in Pflugerville, TX.

7.  The applicant provides:

	a  A memorandum, dated 17 May 2012, from the CAARNG, Sacramento, CA, wherein, in part, it stated an audit revealed a discrepancy with his SLRP incentive.  They were recouping $6,000 as a loan repayment of $6,000 was paid without supporting loan documentation; there was no contract.  They determined he may be eligible for an exception to policy (ETP) and the supporting documentation was absent from his personnel file.  He had 30 days from the date of the memorandum to submit the ETP request or supporting documentation.  This memorandum did not have a mailing address for the applicant listed on the memorandum.

	b.  An undated memorandum from the National Guard Bureau (NGB), U.S. Property and Fiscal Office for CA, wherein it stated, in part, he was found to be indebted to the U.S. Government in the amount of $6,000 for the SLRP as the loan payment was made without supporting loan documentation.  Records indicated he had separated from the CAARNG and upon the suspense date of the memorandum the debt would be referred to the Defense Finance and Accounting Service (DFAS) for collection.  This memorandum contained no suspense date and was sent to the applicant at an address in Portsmouth, VA.  

8.  In an advisory opinion, dated 12 June 2015, from the Deputy Chief, Personnel Policy Division, NGB, the advisory official recommended approval of the applicant's request and stated:

	a.  Upon coordination with the ARNG incentives branch, the applicant executed an extension on 4 December 2004 for 6 years and his DA Form 4836 that does not reflect an incentive being offered and there is no SLRP agreement in his records.  However, the fact the applicant received his incentive payments supports his claim (emphasis added).

	b.  In accordance with ARNG SLRP policy in effect at the time, the policy required having loans disbursed prior to the extension.  The documents provided do not include information that a loan prior to the start date of the contract start date contained a remaining balance.

	c.  The applicant acted in good faith and the absence of an incentive or the erroneous contract is the fault of the State representatives who failed to follow proper procedures.  A memorandum from the Office of the Under Secretary of Defense, subject:  Repayment of Unearned Portions of the Bonuses, Special Pay, and Educational Benefits or Stipends, dated 21 May 2008, states, "A member who enters into a written agreement with special conditions for receipt of a pay or benefit, is entitled to the full amount of the pay or benefit."

	d.  The CAARNG has not commented or provided any additional or updated information regarding this recommendation.

9.  On 17 June 2015, 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, no response was received.

10.  The SLRP provides for the repayment by the U.S. Government of a designated portion of any outstanding student loan(s) secured after 1 October 1975.  To be eligible for the SLRP incentive, at the time of enlistment, a person must contractually obligate himself/herself to serve satisfactorily, must serve for the full term of the contractual agreement, and must further obligate himself or herself to continue to serve in the same component and the same MOS.  Each completed satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan that is at least 1 year old may then be paid in accordance with the terms of this educational enlistment incentive.

11.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

12.  Title 10, U.S. Code (USC), section 1552, states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error, or remove and injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was entitled to the SLRP in the amount of $6,000.

2.  His request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The evidence of record confirms the applicant extended in the CAARNG on 4 December 2004 for a period of 6 years and a bonus of $15,000.  Although his record contains the Bonus Addendum, his record is void of a DA Form 4836 or SLRP Addendum for this period of service.  However, the NGB advisory official recommended approval of the applicant's request and stated the fact that the applicant received SLRP incentives payments supports his claim and the absence of an incentive or the erroneous contract is the fault of the State representatives who failed to follow proper procedures.  

4.  The evidence of record confirms the applicant has served honorably and faithfully in the ARNG from his extension on 4 December 2004 until 20 December 2010 when he was retired by reason of a combat-related disability.  He should not be denied an incentive and penalized for errors committed by CAARNG officials that were beyond his control.

5.  Therefore, it would be appropriate and serve the interest of justice and equity to correct his record by showing the CAARNG authorized him to receive the SLRP benefit on 4 December 2004 in the amount of $6,000 for his extension in the CAARNG for 6 years.  In addition, as a matter of equity, recoupment action of the SLRP debt should be stopped and all monies collected, to include interest, as a debt to the Government should be returned to the applicant based on this recommended corrective 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 Army National Guard records of the individual concerned be corrected by:

* showing upon his extension in the CAARNG on 4 December 2004 he agreed to serve in the ARNG for a period of 6 years and an SLRP incentive of $6,000
* he received a valid bonus control number for the SLRP incentive, all required officials properly signed and dated the SLRP Addendum, and it was processed in a timely manner
* cancelling the recoupment of the amount he has already been paid under the SLRP and returning any debts collected
* paying any portion of the $6,000 that he is still owed as a result of this correction




      _______ _  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)                                         AR20140020941





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