IN THE CASE OF:  	  

		BOARD DATE:  14 May 2015	  

		DOCKET NUMBER:  AR20150002476 


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 9 April 2013, he enlisted in the Ohio Army National Guard (OHARNG) in military occupational specialty (MOS) 92G (Food Service Specialist) and was assigned to the Camp Ravenna Joint Military Training Center (CRJMTC), OH, in MOS 92G.  When he enlisted in the OHARNG, he signed a contract for the SLRP [in the amount of $50,000] and a prior service Enlistment Bonus (PSEB) of $5,000.  Through no fault his own, he was placed in a non-bonus unit and, due to a unit reorganization, he was made to change his MOS from 92G to MOS 92F (Petroleum Supply Specialist).  He was told that since it was no fault of his own he would be able to retain the incentives; then was told he did not qualify for the incentives. 
   
   b.  On 18 January 2014, he submitted an exception to policy (ETP) requesting to retain the PSEB and SLRP.  On 1 December 2014, his request to retain the PSEB was approved by the National Guard Bureau (NGB).  The approval memorandum stated, in pertinent part, the applicant contracted in MOS 92G; however, due to unit reorganization, he reclassified to MOS 92F.  In order for the applicant to continue receipt of his incentive, he must be placed in a MOS 92F position and his duty MOS reflect MOS 92F in the Guard Incentive Management System (GIMS).  Additionally, the restriction of disqualifying a Soldier from receiving a bonus when enlisting into a Table of Distribution and Allowances (TDA) unit derives from ARNG policy and is not a violation of the law or Department of Defense Instruction (DODI).  Therefore, due to the DD Form 4 (Enlistment/Reenlistment Agreement ARNG) and DD Form 1966 (Record of Military Processing - Armed Forces of the United States) block 32a supporting an incentive being offered at the time of agreement/contract, the request was approved. 
   
   c.  On 29 December 2014, the NGB sent a memorandum denying his ETP for retaining the SLRP.  The disapproval memorandum stated, in effect, the applicant enlisted Non-duty MOS qualified (Non-DMOSQ) in MOS 92G which violates DODI 1205.21 (Reserve Component Incentive Programs Procedures); therefore, the request cannot be granted. 
   
   d.  He has upheld his obligations by completing basic combat training (BCT) at Fort Leonard Wood, MO, on 3 July 2013.  He was sent to the MOS 92F course at Fort Lee, VA, where he graduated as the Distinguished Honor Graduate on 27 June 2014.  He was then placed in the CRJMTC 92F slot.  Due to Fiscal Year 2013 (FY13) unit reorganization and mission needs, his MOS was changed from 92G to 92F.  There were no 92G positions on the new for CRJMTC TDA Unit Manning Report (UMR).  Then due to the FY14 reorganization, he was moved from the 92F slot to a 00F (MOS Immaterial) slot due to the new UMR removing the 92F slot.

3.  The applicant provides DD Form 220 (Active Duty Report), DD Form 2384-1 (Notice of Basic Eligibility (NOBE)), four memoranda and orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Navy (USN) on 28 August 1998 and he held primary specialty GM (Gunner's Mate).  On 27 August 2002, he was honorably released from the USN and he was transferred to the USN Reserve (USNR). On 27 August 2006, he was honorably discharged from the USNR.

2.  On 9 April 2013, he enlisted in the OHARNG for a period of 6 years in the rank/grade of specialist (SPC)/E-4. 

3.  His records contain:

	a.  Annex A (Enlistment/Reenlistment Agreement - ARNG - Service Requirements and Methods of Fulfillment) to DD Form 4, dated 9 April 2013, wherein, in part, he acknowledged that he had prior service, was enlisting in the ARNG unit OHARNG Camp Ravenna, unit identification code (UIC) W92FAA, he would attend BCT at Fort Leonard Wood, MO, would undergo training in MOS 92G, and, in part, he was enlisting for the SLRP and a PSEB.  

	b.  PSEB Addendum, dated 9 April 2013, wherein, in part, it shows he acknowledged and understood that:

* he was enlisting Duty MOS Qualified (DMOSQ) in an MOS for the duty position to which he was being assigned that matches the authorized military grade and skill qualification commensurate with the position by skill level into a critical skill (CS) vacancy
* he must fill a valid Automated Unit Vacancy System (AUVS) in the Recruit Quota System (REQUEST) and enlist in a valid top loaded Modified Table of Organization or Equipment (MTOE) or Medical TDA unit only 
* he must not be filling an excess or over-strength position (exception not authorized) 
* he was DMOS qualified for the position and was enlisting for a term of service of not less than 6 years in the ARNG 
* he was enlisting for a PSEB CS MOS 92G, UIC W92FAA, in unit OHARNG Camp Ravenna, UV control number (UVCON) 9235349
* he was enlisting DMOSQ for and would receive a total bonus in the amount of $5,000 less taxes in MOS 92G
* he would be eligible for continued receipt of the incentive if his MOS was changed due to unit transition, inactivation, relocation, reorganization, provided he met all other eligibility criteria and become DMOSQ with 24 months
* if placed in an over-strength status due to unit inactivation, relocation, or reorganization, he would be entitled to continued payment, to include his initial payment; he must be assigned as the primary position holder in the valid vacancy
* if moved to an excess position, the incentive would be terminated on the date of being moved into the excess position

	c.  SLRP Addendum, dated 9 April 2013, wherein, in part, it shows he acknowledged and understood that:

* he was enlisting DMOSQ in an MOS for the duty position to which he was being assigned that matches the authorized military grade and skill qualification commensurate with the position by skill level into a CS vacancy
* he must fill a valid AUVS in the REQUEST and enlist in a valid top loaded MTOE or Medical TDA unit only
* he must not be filling an excess or over-strength position (exception not authorized)
* he was enlisting in the ARNG for 6 years
* he had 18 disbursed loans existing in the amount of $57,983 and the total amount of repayment for qualifying loans would not exceed $50,000
* he was a PS applicant enlisting in MOS 92G, UIC W92FAA, in unit OHARNG Camp Ravenna, UVCON 9235349
* anniversary SLRP payment would not exceed 15 percent or $500 (whichever was greater); the maximum annual payment would not exceed $7,500 
* the SLRP anniversary payment was not processed automatically; he must continue each year to meet all requirements and his qualification has been verified by the State Incentive Manager (IM)
* he would be eligible for continued receipt of the incentive if his MOS was changed due to unit transition, reorganization, or conversion provided he met all other eligibility criteria and became DMOSQ [in the new MOS] within 24 months
* the SLRP incentive may be terminated without recoupment if he voluntarily changed his enlistment MOS during the contractual obligation

4.  The applicant and the service representative signed these addendums on 9 April 2013.  The PSEB Addendum contains a bonus control number (BCN) but neither addendum was signed by a witnessing officer.  

5.  The applicant was subsequently assigned to the CRJMTRC, in MOS 92G, UIC W92FAA, Newton Fall, OH.

6.  He entered initial active duty for training (IDAT) on 22 April 2013 and completed BCT at Fort Leonard Wood, MO.  On 5 July 2013, he was released from IADT to the control of the OHARNG.  He was issued a DD Form 220 that captured his active service.

7.  Orders 249-984, dated 6 September 2013, issued by the State of Ohio, Adjutant General's (AG) Department, relieved him from the DMOS 92G position and assigned him to a DMOS 92F position effective 1 September 2013.  These orders stated the reassignment was due to reorganization. 

8.  In a memorandum to the NGB, dated 19 September 2013, the Garrison Commander, CRJMTC, requested the applicant be granted an ETP for reclassification from MOS 92G to 92F due to unit reorganization and an ETP for him to retain his bonuses as awarded in his enlistment contract.  He stated, through no fault of the Soldier, his MOS was changed to 92F due to unit reorganization and not due to the Soldier's request.  The current TDA for CRJTMC, UIC W92FAA, did not include any 92G positions.

9.  The applicant attended and successfully completed Phase I and Phase II of the Petroleum Supply Specialists course from 30 May to 27 June 2014 at Fort Lee, VA.

10.  Orders 183-1130, dated 2 July 2014, issued by the State of Ohio, AG's Department, awarded the applicant MOS 92F and withdrew MOS 09U (Prior Service Soldiers requiring an Army MOS service school) effective 27 June 2014.

11.  Orders 246-1287, dated 3 September 2014, issued by the State of Ohio, AG's Department, relieved him from the DMOS 92F position and assigned him in a DMOS 00F position as a Range Communication Controller effective 1 September 2014.  These orders stated reassignment was based on reorganization of unit.  Soldier reassigned on the effective date of the reorganization retain the Selected Reserve Incentive Program (SRIP) eligibility without regard to MOS qualifications, over-strength, or over-grade status for up to 24 months from effective date of reassignment. 

12.  In a memorandum to the OHARNG, dated 1 December 2014, the NGB approved the ETP for the applicant to retain the $5,000 PSEB.  The NGB official stated, in part:

	a.  The applicant was not serving in the MOS for which contracted which violated ARNG SRIP 13-01 and he enlisted into an unauthorized TDA which violated ARNG SRIP 13-01.  He enlisted in OH UIC 92FAA on 9 April 2013 for a $5,000 bonus.  His contracted MOS was 92G and his current MOS was 00F.  

	b.  The applicant contracted in MOS 92G; however, due to unit reorganization, he reclassified to MOS 92F.  In order for continued receipt of the incentive, he must be placed in a DMOS 92F position and his DMOS must reflect 92F in the GIMS.  Additionally, the restriction of disqualifying a Soldier from receiving a bonus when enlisting into a TDA unit derived from ARNG policy and was not a violation of the law or DODI.  Therefore, due to the DD Form 4 and DD Form 1966 supporting an incentive being offered at the time of the contract, the request was approved.

	c.  The applicant accepted an incentive offer in good faith and has otherwise fulfilled the obligations under contract.  Therefore, withholding payment of the incentive would be against equity and good conscience and contrary to the best interest of the Army.

13.  In a memorandum to the OHARNG, dated 29 December 2014, the NGB denied the ETP for the applicant to retain the $50,000 SLRP and stated the State IM would terminate the incentive without recoupment as no payments had been processed.  The NGB official stated, in part:

	a.  The applicant was not serving in the DMOS for which contracted which violated ARNG SRIP 13-01 and he enlisted into an unauthorized TDA which violated ARNG SRIP 13-01.  

	b.  The applicant did not qualify in the contracted MOS which violated DODI 1205.21.  He enlisted in OH UIC 92FAA on 9 April 2013 for a $50,000 SLRP.  His contracted MOS was 92G and his current MOS was 00F.  He enlisted Non-DMOSQ in MOS 92G which violated DODI 1205.21; therefore, the request could not be granted.

14.  DODI 1205.21 prescribes procedures for incentive programs.  Section 6.2 (Written Agreements) states, in part, as a condition of the receipt of an incentive covered by this Instruction, each recipient shall be required to sign a written agreement stating that 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 the payment of the incentive to the member.  

15.  Army Regulation 135-7 (Incentive Programs), restricts the SLRP to those Reservists who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of military occupational specialties and units, which is updated every 6 months.  

16.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record confirms having had prior service in the USN while serving as a Gunner's Mate, the applicant enlisted in the OHARNG on 9 April 2013 for a period of 6 years.  His enlistment contract specified he was enlisting for training in 92G.  However, on the same date the OHARNG service representative executed a prior-service SLRP Addendum stating the applicant was enlisting for the SLRP in the amount of $50,000 in MOS 92G and that he was DMOSQ as a 92G.  The applicant and the service representative both signed the SLRP Addendum and it contained a BCN; however, it was not signed by the witnessing official.

3.  It is evident an error was committed on the part of OHARNG recruiting official when he enlisted for the SLRP as DMOSQ 92G and was subsequently trained in and awarded MOS 92F due to unit reorganization.  However, the applicant himself signed the addendum also verifying he was DMOSQ as a 92G when he was not.  In addition, he never held MOS 92G. When he was awarded MOS 92F, the MOS he held at the time 09U was withdrawn.  The fact that he was moved from a DMOS 92G position to a DMOS 92F and then DMOS 00F position based on unit reorganizations are moot points.  As he was not qualified in MOS 92G, did not enlist into an MTOE or Medical TDA unit, and did not meet the requirements he agreed to in his prior-service SLRP Addendum at the time of his enlistment, the addendum is not a valid contract.  Therefore, he is not entitled to the requested relief.

4.  Notwithstanding the NGB official's approval of the ETP for retaining the PSEB because the applicant was reassigned into DMOS 92F, and then into a DMOS 00F, through no fault of his own, he was not entitled to either the $5,000 PSEB or the $50,000 SLRP as both addendums stated he was DMOSQ as an 92G when he was not and which violated both ARNG policy and DODI 1205.1.  However, it is the policy of the Board not to make an applicant worse off for having petitioned the Board; therefore, no action will be taken to terminate/recoup the PSEB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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.


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ABCMR Record of Proceedings (cont)                                         AR20150002476



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