IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20150002406 


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 entitlement to the Student Loan Repayment Program (SLRP) in the amount of $50,000.

2.  The applicant states:

	a.  On 19 February 2013, he received an exception to policy (ETP) notification from the Minnesota Army National Guard (MNARNG) J1 Division concerning his SLRP.  On 25 March 2013, he submitted an ETP request and on 8 July 2013 his request was denied.  Based on the reasoning stated in the memorandum denying his ETP request, he believes an error was created by the State Incentives Officer.  He wants the errors to be corrected and his SLRP reinstated. 

	b.  The ETP denial memorandum stated he had two record Army Physical Fitness Test (APFT) or height (HT)/weight (WT) failures within 12 months which violated ARNG Chaplain, Health Professional and Enlisted Loan Repayment Programs (CHELRP) Fiscal Year 2009 (FY09).  ARNG CHELRP, section 4-1, states that an SLRP may be suspended if the Soldier is under a suspension of favorable action (FLAG) for failure to pass the APFT or entry into the Weight Control Program.  All other adverse action FLAGs will result in termination of incentive.

	c.  The State of Minnesota made an error concerning the cited policy.  The suspension of the SLRP incentive was authorized; however, the incentive should not be terminated based on an APFT.  He acknowledges the fact that during the period he was flagged he would not be entitled to receive the SLRP; however, he never has received any payments under the SLRP for the entirety of the contract. 

   d.  The denial notification stated that the incentive payment was requested 7 months before the date of reenlistment which violated ARNG CHELRP FY09.  He signed the oath of extension on 7 February 2010 and the SLRP Addendum was signed on 10 February 2010.  This is a 3-day difference after the oath of extension and not 7 months prior.  This was a serious miscalculation by the incentives office.  ARNG CHELRP FY09 requires that Soldiers reenlist/extend for enough time to place their expiration term of service (ETS) at least 6 years from the date of entry in the program.  His ETS was 16 February 2016 and based on the addendum signature date of 10 February 2012, his reenlistment period was longer than required. 

   e.  As evidenced in the email he provided between Staff Sergeant (SSG) BR and Sergeant (SGT) KL, the Guard Incentive Management System (GIMS) showed the State processed payments for 2 FYs prior to the APFT failure.  Further review of those reports found that a transmittal letter (TL) for payment was never created and because of this no payment has ever been made in his name.  
   
   f.  He takes full responsibility and acknowledges that during his contract he had two APFT failures.  However, that has been rectified and he is in good standing with both the MNARNG and the U.S. Army.  He is currently deployed and serving as the Legal Noncommissioned Officer in Charge (NCOIC) for the 34th Combat Aviation Brigade (CAB).  His SLRP Addendum should be backdated and the loan holders should be paid based upon the full amount in the addendum.
   
3.  The applicant provides

* three memoranda
* three pages of email, dated 5 and 8 December 2014
* 10 pages titled Loan Details, printed 5 December 2014
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Annex C (Reenlistment Bonus Addendum - MNARNG)
* Annex L (SLRP Addendum - ARNG of the United States) to DD Form 4 (Enlistment/Reenlistment Agreement – ARNG)
* National Guard Bureau Education Division Instruction 1.1
   (NGB-EDUi 1.1), dated 1 October 2009
* eight DD Forms 2475 (Department of Defense (DOD) LRP Annual Application), all undated 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the MNARNG on 17 February 2004 for a period of 8 years.  His ETS in the Ready Reserve was 16 February 2010 and his military service obligation date was 16 February 2012.  He held military occupational specialty (MOS) 27D (Paralegal Specialist) and was promoted to the rank/grade of SSG on 4 September 2008.  He was assigned to Headquarters and Headquarters Detachment (HHD), 347th Regional Support Group (RSG), Roseville, MN.

2.  On 7 February 2010, he executed a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) wherein it shows he extended his enlistment in the MNARNG on that date for a period of 6 years for a bonus and the SLRP.  As a result of this extension, his ETS was adjusted to 16 February 2016.

3.  The applicant provides and his record contains an SLRP Addendum wherein, in part, it shows:

* he was a prior service current member duty MOS qualified for the position and extending for a term of service of not less than 6 years
* he had four disbursed loans in the amount of $24,911.15 and the total amount of repayment for qualifying loans would not exceed $50,000 
* loans must be 1 year or older on the first anniversary eligibility date to qualify for the program
* the portion of the SLRP ($50,000) that may be repaid annually on any qualifying loan(s) would not exceed 15 percent (not to exceed $7,500 per year) of the total of all loan principal or $500, whichever was greater
* the annual payment would include interest as long as the combined principal and interest does not exceed the maximum authorized under law
* payment would be processed on the anniversary date of his enlistment for each year of satisfactory service
* he understood he may be suspended from the SLRP if he was flagged for an adverse action
* reinstatement of eligibility was not guaranteed; in addition if he regained eligibility, his payments would be processed effective on the date the suspension was lifted
* eligibility would be terminated for two consecutive APFT failures or two consecutive failures to meet body fat
* at the time of termination any unpaid whole months would be paid on a prorated basis and the SLRP contract would be considered completed

4.  The applicant, authorized service representative, and the witnessing officer all signed and dated this SLRP Addendum on 10 February 2010 and it contains a valid bonus control number (BCN).  

5.  His DA Form 2166-8 (NCO Evaluation Report) for the rating period 1 November 2011 through 31 December 2012 reflects that he failed the APFT on 23 June 2012.

6.  The applicant provides a memorandum to himself, dated 19 February 2013, subject:  Notification of Incentive Discrepancy and ETP Process, from the Office of the Adjutant General (OAG), MNARNG, wherein he was notified that a discrepancy was discovered with his SLRP incentive contract that must be resolved to avoid eligibility termination.  He and the service representative dated the SLRP Addendum on a different date then the DA Form 4836 and he failed to initial Section VII (Authentication) of the SLRP Addendum.  Also, his second consecutive record APFT was on 13 January 2013.  He might be eligible for an ETP and needed to submit one within 45 days of the date of the memorandum.

7.  He provides a memorandum to the OAG, dated 25 March 2013, from the Commander, HHD, 345th RSG, wherein the commander requested an ETP for the applicant to retain the $50,000 SLRP.  He stated the applicant was aware of his ineligibility to receive payment for his existing student loans during the period of APFT noncompliance.  However, several administrative errors occurred in the execution of his extension and SLRP Addendum by the incentives staff resulting in the recoupment of the entire SLRP amount.  There were mismatching dates on the extension and addendum, different officer signatures, missing initials, and the bonus request was before the date of the extension.  The discrepancies were something very few M-Day Soldiers would recognize and were not the fault of his own.

8.  He provides a memorandum to the MNARNG, dated 8 July 2013, from the NGB, wherein the ETP request for the applicant to retain the SLRP was denied and the NGB directed the State Incentive Manager to terminate the SLRP with recoupment effective the date of the second APFT failure.  The NGB official stated the applicant had two record APFT or HT/WT failures within 12 months and the incentive was requested 7 months before (i.e., 3 days after) the date of extension both of which violated the ARNG CHELRP FY09.

9.  He also provides an email, dated 5 December 2014, wherein SSG BR, MNARNG, in response to the applicant's complaint that no payments had ever been made on his student loans, stated the GIMS showed they processed payments for the 2 FYs prior to the second APFT that resulted in his contract being terminated based on the ETP determination from the NGB.  However, he could not find a TL for the payments the GIMS said were made and he was going to follow-up with the NGB and find out if they could track down a TL or determine if the checks were cashed. 

10.  The applicant was promoted to the rank of sergeant first class on 24 December 2014 and is currently serving on active duty in Kuwait as a member of the MNARNG.

11.  Army Regulation 135-7 (Incentive Programs), restricts the SLRP to those Reservists who either enlist, reenlist, or extend for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOSs and units, which is updated every 6 months.  This educational incentive may only be elected at the time of enlistment, reenlistment, or extension, and a SLRP Addendum must be executed at that time. 

12.  The SLRP provides for the repayment by the Government of a designated portion of any outstanding student loan(s) secured after 1 October 1975.  The loan amount to be repaid is 15 percent of the original balance of the loan plus accrued interest not paid by the Department of Education, or $500 plus the accrued interest not paid by the Department of the Education, whichever is greater.  Payments will be made for each year of satisfactory service in the Selected Reserve.  

13.  To be eligible for the SLRP incentive, a person must contractually obligate himself/herself to serve satisfactorily, must serve in a Reserve unit for a 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 unless excused for the convenience of the Government.  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.  There are no provisions to reinstate an incentive after it is terminated for cause. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the SLRP incentive in the amount of $50,000.

2.  The evidence of record confirms the applicant extended in the MNARNG on 7 February 2010 for a period of 6 years and his SLRP Addendum was executed on 10 February 2010.  The governing regulation states in order to receive the SLRP incentive the SLRP Addendum must be executed at the time of the reenlistment/extension.  It is obvious errors were made on the part of the MNARNG officials when they failed to ensure the applicant's extension and SLRP Addendum were executed on the same date. 

3.  However, the applicant acted in good faith when he signed the addendum and shouldn't be penalized for errors that were beyond his control.  Therefore, his SLRP Addendum should be corrected to show he, the service representative, and the witnessing officer, all signed the addendum on 7 February 2010, the date of his extension, and it was initialed properly.  

4.  In addition, the evidence of record confirms he failed the APFT on 23 June 2012 and had a second consecutive APFT failure on 13 January 2013.  In accordance with his addendum and governing regulations, his entitlement to the SLRP would have been suspended on 23 June 2012 and terminated without recoupment on 13 January 2013.  Once terminated, the SLRP is considered completed and there are no provisions to reinstate the SLRP, even if a Soldier subsequently meets standards.  Therefore, he is not entitled to full relief.  However, as a matter of equity, he should be entitled to payment of his qualifying loans from the 7 February 2010 to the date the SLRP was suspended and subsequently terminated in accordance with the addendum.

5.  In view of the foregoing, it would be appropriate to correct his records as recommended below. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* showing upon extension in the MNARNG on 7 February 2010 the applicant and all required officials properly signed and initialed the Annex L to DD Form 4, and it was processed in a timely manner
* showing as of 7 February 2010 he was eligible for the SLRP in accordance with the terms of his addendum as a matter of equity and good conscience
* paying his authorized loans as specified in Annex L to DD Form 4 from ARNG funds 
* showing his entitlement to the SLRP was suspended on 23 June 2012 and terminated without recoupment on 13 January 2013

2.  The Board further determined that the evidence presented is 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 the reinstatement of the SLRP after 13 January 2013.  



      _______ _   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)                                         AR20150002406





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ABCMR Record of Proceedings (cont)                                         AR20150002406



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