IN THE CASE OF:	

		BOARD DATE:	  22 OCTOBER 2015

		DOCKET NUMBER:  AR20150000078 


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 relief from recoupment of $15,000 in Student Loan Repayment Program (SLRP) funds paid to his student loan lender.  In the alternative, he requests creation of an SLRP contract post-dated 5 May 2011, with the payment of funds to his student loan lender.

2.  The applicant states:

* he was erroneously paid the SLRP incentive while deployed in 2005
* if not for the erroneous payment, he would have been eligible for SLRP when he later reenlisted in 2011 when the SLRP maximum was $50,000
* he was first made aware that he was not eligible for SLRP payment due to being a dual-status military technician through the California Army National Guard (CAARNG) Incentives Task Force audit process
* he mobilized in January 2005 while serving as a dual-status military technician
* during a battalion retention meeting in April 2005, the battalion retention noncommissioned officer (NCO) disseminated information about the Selected Reserve Incentive Program (SRIP), stating mobilized military technicians were eligible for a reenlistment bonus
* according to the guidance, mobilized military technicians had to execute an immediate reenlistment and sign a 6-year contract to be eligible for a $15,000 bonus
* the battalion retention NCO requested a control number for him and other military technicians
* 2 days later, the battalion retention NCO called him asked him if he had any student loans, to which he responded that he did
* the CAARNG State Incentives Manager, Master Sergeant (MSG) J____, had told his battalion retention NCO that Soldiers with student loans were eligible for the SLRP in addition to the reenlistment bonus and to supply all outstanding student loan paperwork to MSG J____, which he did
* MSG J____ told him the type of loans he had were eligible for repayment
* he executed an immediate reenlistment for the SLRP and a bonus on 5 May 2005
* he received payment for the bonus right away and received his first SLRP payment in the amount of $6,000 about 1 year later
* he would not have signed the paperwork to receive the SLRP had he not been told by the battalion retention NCO that he was eligible to receive the SLRP and MSG J____ had not given out control numbers to all of the eligible mobilized military technicians
* he contacted MSG J____ every year on the anniversary date of his reenlistment to remind her that payment was due, as he was advised to do
* subsequent to his deployment in 2005, he did not return to his military technician position, instead he continued serving on active duty under various types of orders
* he should be eligible for the SLRP because he was no longer a military technician while he was deployed
* he was under Title 10 orders and did not return to his military technician position
* he was eligible for and received a reenlistment bonus while he was deployed even though he held a military technician position back in the United States
* according to the SRIP document that permits a military technician to receive a bonus, deployed military technicians are called "former" military technicians
* therefore, because he was under Title 10 orders, he believes he should be entitled to the SLRP benefits that were paid to his student loan lender
* additionally, he relied on the subject matter expertise of MSG J____ and his battalion retention NCO who told him he was eligible and obtained a bonus control number for his SLRP
* had he not been paid SLRP in 2005, he would have extended for 6 years for the SLRP in 2011
* therefore, a 6-year enlistment contract and SLRP addendum should be created, dated 5 May 2011, and he should be paid the SLRP per the Education and Incentives Operations Message (EOIM) 10-0009, minus the $15,000 already paid
* he meets the requirements of EOIM 10-0009, paragraphs 2-3a and d
* he is a high school graduate
* he has qualifying loans
* he executed a 6-year enlistment or extension from his expiration term of service date
* he was assigned to a qualifying unit
* he never previously received an SLRP incentive
* he was qualified in his duty military occupational specialty (MOS)
* he would be due a maximum of $41,438, which equals the total of his outstanding loans of $26,438 plus the $15,000 in loans already paid by the CAARNG, 15 percent of which would be paid per year, equaling $6,215.71 per year paid on his reenlistment/extension anniversary date 5 May 2012
* on 24 March 2013, he accepted another military technician position
* according to Department of Defense (DOD) Instruction (DODI) 1205.21, he would be permitted to continue to receive SLRP incentives if he served as a military technician for at least 6 months of the incentive contract following receipt of the initial incentive payment
* he provided a copy of his SLRP addendum which the National Guard Bureau (NGB) states is missing in its advisory opinion
* Fiscal Year (FY) 2005 SRIP Policy Guidance Memorandum, Change 1, dated 14 January 2005, allows for an exception for military technicians who deployed specifically in support of the Global War on Terror to be eligible to receive payment
* the exception allowed for the immediate reenlistment to obtain the reenlistment/extension bonus, of which SLRP is listed as an authorized bonus
* the only limitation is that the Soldier must serve 6 months prior to returning to the former Active Guard Reserve (AGR) or military technician status, which he did
* he submitted a copy of his annual statement of retirement points which shows 6 good years of service between FY05 and FY10, the full term of the SLRP
* the terms of the SLRP would entitle him to receive a maximum of $18,000 for that period
* he acted in good faith and under every presumption that he was fully eligible as was advised by the subject matter experts, the CAARNG incentives program manager and his battalion retention NCO
* the audit is the first time the question of his eligibility was ever raised
* he has since served the 6 years of his contract as persuaded to do by the promise of the SLRP and he continues to serve faithfully
* MSG J____ later pled guilty and was convicted of processing incentives she knew to be ineligible, resulting in approximately 17,000 Soldiers undergoing an audit and answering for her crime
* the State of California acknowledges in its opinion that there is no evidence of fraud on his part
* he would not have agreed to extend at the time and receive the SLRP if he knew he were not eligible
* if his 2005 SLRP addendum is found invalid, he will have been denied the opportunity to have taken advantage of SLRP incentives in 2011
* it has now been nearly a full decade since receipt of his first SLRP payment and funds which would have gone to pay student debt were committed to others
* recoupment would cause a distressing financial strain on his family

3.  The applicant provides:

* self-authored memorandum, dated 21 May 2013
* CAARNG memorandum for record, dated 27 August 2013
* CAARNG memorandum, dated 3 September 2013
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 1 August 2011
* self-authored memorandum, dated 2 February 2015
* NGB Form 600-7-5-R-E (Student Loan Repayment Program Addendum ARNG), dated 5 May 2005
* NGB memorandum, subject:  FY 2005 SRIP Policy Guidance for 14 December 2004-30 September 2005 (Policy Number 05-02), Change 1
* ARNG Current Annual Statement, dated 22 September 2014
* U.S. District Court of the Central District of California Plea Agreement for Defendant T____ J____

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.  After periods of prior service in the Regular Army, U.S. Army Reserve, and ARNG, the applicant again enlisted in the ARNG on 22 October 2002 after a break in service.

3.  CAARNG Orders 363-316, dated 28 December 2004, show the applicant was ordered to active duty as a member of his Reserve Component unit in support of Operation Enduring Freedom on 3 January 2005.

4.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows that on 5 May 2005, he reenlisted in the Army National Guard for a period of 6 years in military occupational specialty (MOS) 63B (light-wheel vehicle mechanic).  His DD Form 1966 (Record of Military Processing – Armed Forces of the United States), section V (Recertification), states the Soldier is authorized to receive a reenlistment bonus under the SRIP.  SLRP is not listed on either document.

5.  The applicant provided a copy of NGB Form 600-7-5-R-E, dated 5 May 2005, authorizing him SLRP, containing SLRP control number 505070006CA and signed by an enlisting official.

6.  His ARNG Current Annual Statement prepared on 22 September 2014 shows he earned well over 50 retirement points, constituting a good year of service in every anniversary year ending date from 22 October 2004 through 22 October 2011, the period covered by the SLRP benefit.

7.  On 27 August 2013, a CAARNG Incentives Task Force (ITF), re-audit manager authored a memorandum for record, stating the applicant's settlement category remains non-correctable.  The applicant provided National Student Loan Summary and Detail sheets which supported the validity of his student loans, but eligibility could not be verified due to a lack of an addendum in violation of DODI 1205.21, section 6.2.  The applicant was on orders as a dual status military technician on the contract signature date in violation of DODI 1205.21 section E8.1.1.2.  He is eligible to request a correction through the ABCMR

8.  On 3 September 2013, the CAARNG ITF Commander authored a memorandum, appealing on behalf of the applicant for relief from recoupment of his SLRP incentive due to misinformation from the subject matter experts who assisted him in obtaining that incentive.  There was no evidence of fraud on the part of the applicant.  He reenlisted on 5 May 2005 in MOS 63B.  Pursuant to DODI 1205.21, section E8.1.1.2, he was not eligible for the SLRP due to his status as a military technician.  Per SRIP 05-02 (which covered May 2005), the maximum SLRP incentive to which he would have been entitled was $18,000.  To receive this incentive, he should have executed a contract for a term not less than 6 years and have at least one qualifying loan.  He would have had to submit a DD Form 2475 (Department of Defense Educational Loan Repayment Program Annual Application) annually for establishment of continued eligibility and payment of the incentive.  At the time, payments were not to exceed 15 percent or $500 of the eligible loan amount, whichever was greater, per year, with a $3,000 cap per year.  At the time of reenlistment, the applicant had valid Federal loans in an amount greater than $20,000.

   a.  Had he been eligible for payment, he would have established eligibility for six annual payments of $3,000 (based on an $18,000 maximum entitlement and a $3,000 cap per year).  He did not contract for SLRP on the date of his reenlistment and was not eligible to contract for this incentive due to his status as a military technician.  He submitted a DD Form 2475 to the State Incentives Manager for FY06 through FY08.  The following Federal loans, totaling $15,000, were paid:

* on 19 October 2006, $6,000 was paid, $3,000 applied toward FY05 and $3,000 applied toward FY06
* on 14 January 2008, $3,000 was paid and applied toward FY07
* on 15 July 2008, $6,000 was paid, $3,000 applied toward FY07 and $3,000 applied toward FY08

   b.  Had he been eligible for payment, the disbursement through FY08 would have been three annual payments of $3,000 for a total of $9,000.  While he was overpaid by $6,000 as of FY08, carrying out the proper payment schedule to the end of his contracted term through 2011, would have amounted to a total entitlement of $18,000, the maximum authorized limit.  The CAARNG ITF Commander recommended relief from recoupment of the erroneously-paid incentive.

9.  On 15 April 2014, the Deputy, Personnel Policy Division, NGB, provided an advisory opinion recommending disapproval of the applicant's request for relief from recoupment of SLRP and disapproval of the creation of a new SLRP contract.  Per the advisory opinion, the applicant was not eligible to contract for the SLRP based on his status as a military technician, a position from which he did not resign until September 2010.  He should not have been allowed to complete an SLRP contract, an addendum of which is not on file, in violation of DODI 1205.21.  While deployed overseas on 5 May 2005, he extended his contract using a DD Form 4 although he was not in a stop loss status and should have used a DA Form 4836.  He received erroneous payments from FY06 through FY08 due to his ineligibility while in a military technician status and which he failed to contract for on the date of his reenlistment.  Additionally, he received two payments he was not entitled to if he had been found eligible for the incentive.  A Soldier is required to serve 1 good year before the SLRP incentive can be paid.  His FY05 payment was not based on a good year of service and the FY08 payment was duplicated.  Recoupment of the overpayment of the SLRP incentive to which he was never entitled is justified.  As of 5 February 2014, the applicant has repaid $3,122.43 of the debt.

REFERENCES:

1.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides Department of the Army policies for entitlements and collections of pay and allowances.  It is used in conjunction with the DOD Financial Management Regulation.

	a.  Chapter 20 (Settlement Actions Authority) states only the Director, Defense Finance and Accounting Services (DFAS)-Indianapolis, may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR.

	b.  Chapter 32 (Waiver of Erroneous Payments) states the Secretary of Defense may waive U.S. claims for erroneous payments of pay and allowances, including travel and transportation allowances, totaling less than $1,500 or deny waivers in any amount.  Waiver requests exceeding $1,500 will be referred to the Comptroller General of the United States together with the recommendation of the Director, DFAS.  A claim of the United States against a Soldier or former Soldier arising out of an erroneous payment of pay and allowances, including travel and transportation allowances, may be considered for waiver within 3 years from the date of discovery when collection of the erroneous payment would be against equity and good conscience and not in the best interest of the United States.

2.  DODI 1205.21, section 6.2 (Written Agreements), states as a condition of the receipt of an incentive covered by this instruction, each recipient shall be required to sign a written agreement stating 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 payment of the incentive to the member.  Services shall use the model written agreements set out in this instruction at enclosures 3 through 13.  However, Service-specific agreements may be used, if they include all elements of the model agreements.  Paragraph E8.1.1.2 specifically states the recipient acknowledges in his/her written agreement that he/she is not enlisting, reenlisting, or extending to qualify for an AGR position or a military technician position where membership in a Reserve Component is a condition of employment (temporary assignment as a military technician for 6 months or less is excluded).

3.  NGB memorandum, dated 14 January 2005, subject:  FY05 SRIP Policy Guidance for 14 December 2004-30 September 2005 (Policy Number 05-02), Change 1, states all "former" AGR Title 32 and military technicians who are mobilized under Title 10 status due to the Global War on Terrorism are eligible to extend or execute an immediate reenlistment to obtain the 3 or 6-year reenlistment/extension bonus.  Soldiers executing a bonus contract must serve 6 months of the reenlistment/extension contract prior to being re-affiliated with his/her full-time position.

4.  Title 37, U.S. Code, section 373(b)(1), reads, "Discretion to provide exception to termination and repayment requirements.  Pursuant to the regulations prescribed to administer this section, the Secretary concerned may grant an exception to the repayment requirement and requirement to terminate the payment of unpaid amounts of a bonus, incentive pay, or similar benefit if the Secretary concerned determines that the imposition of the repayment and termination requirements with regard to a member of the uniformed services would be contrary to a personnel policy or management objective, would be against equity and good conscience, or would be contrary to the best interests of the United States."

5.  Title 10, U.S. Code, section 16301(b-c), reads, "The portion or amount of a loan that may be repaid under subsection (a) is 15 percent or $500, whichever is greater, for each year of service, plus the amount of any interest that may accrue during the current year.  If a portion of a loan is repaid under this section for any year, interest on the remainder of the loan shall accrue and be paid in the same manner as is otherwise required.  For the purposes of this section, any interest that has accrued on the loan for periods before the current year shall be considered as within the total loan amount that shall be repaid."

6.  Title 10, U.S. Code, section 2774 (Claims for Overpayment of Pay and Allowances and of Travel and Transportation Allowances), states a claim of the United States against a person arising out of an erroneous payment of any pay or allowances made before, on, or after 2 October 1972, or arising out of an erroneous payment of travel and transportation allowances, to or on behalf of a member or former member of the Uniformed Services, the collection of which would be against equity and good conscience and not in the best interest of the United States, may be waived in whole or in part by the Secretary concerned.

7.  DODI 1340.23 (Waiver Procedures for Debts Resulting from Erroneous Pay and Allowance) states it is DOD policy that waiver applications for debts resulting from erroneous payments of pay and allowances be processed according to all pertinent statutes, regulations, and other relevant authorities.

	a.  E2.1.3. (Debt) defines debt as an amount an individual owes the Government as the result of erroneous payments of pay and allowances (including travel and transportation allowances) to or on behalf of members of the Uniformed Services or civilian DOD employees.

	b.  E2.1.5. (Erroneous Payment) defines erroneous payment as a payment that is not in compliance with applicable laws or regulations.

DISCUSSION:

1.  The applicant reenlisted for 6 years in the CAARNG on 5 May 2005 while in a leave without pay status as a military technician deployed with his CAARNG unit. When he reenlisted, he signed an SLRP Addendum, which he provided for review, enrolling himself in the ARNG SLRP for loan repayment up to $18,000.  He and an enlisting official of the CAARNG authenticated this annex with their signatures and the annex was assigned an SLRP control number.

2.  He completed the 6 good years he contracted for and, in addition to, received a total of $15,000 out of the maximum of $18,000 authorized toward valid student loans.  However, in 2013, his account was audited and a discrepancy was discovered.  The ITF concluded he was not eligible for the SLRP benefit at the time of reenlistment based on his status as a military technician.  The ITF found no evidence of fraud or impropriety on behalf of the applicant to warrant fraud or submission of false claims.

3.  DODI 1205.21, paragraph E8.1.1.2, disallows receipt of the SLRP incentive for a Soldier accepting a military technician position where membership in a Reserve Component is a condition of employment.  Soldiers in a temporary technician status of less than 6 months are exempted.

4.  He enlisted in good faith, signed the documentation the CAARNG asked him to sign, fulfilled the contractual agreement that he signed (served for 6 years from May 2005 to beyond May 2011), served in the MOS he contracted for, and served honorably throughout this period.  From an equity standpoint, he appears to have satisfied the contractual agreement he signed.

5.  From a statutory and regulatory standpoint, this is a valid debt and it is not in error.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)                                         AR20150000078



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


0Enclosure 2

ABCMR Record of Proceedings (cont)                                         AR20150000078



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1