BOARD DATE:	    8 October 2015

		DOCKET NUMBER:  AR20150003121 


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 that his Student Loan Repayment Program (SLRP) debt be waived and that he be paid back the money that has already been recouped. 

2.  The applicant states:

* he believes the record is in error because he was unaware of whether his area of concentration/branch was eligible for the SLRP incentive
* he was informed by the State Incentives Manager that he was eligible and he completed the paperwork to receive the SLRP
* he received the SLRP incentive but then he was told he would have to pay it back
* he has been paying the U.S. Property and Fiscal Office (USPFO) out of his drill pay 
* he was not the determining party to receive the incentive and there was no malpractice on his part 
* he wants this debt pardoned because it is causing him and his family a financial hardship 

3.  The applicant provides his ETP denial memorandum and correspondence from the California Army National Guard (CAARNG) Incentives Task Force.


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the CAARNG for a period of 8 years on 7 August 2007.  He enlisted for the Officer Candidate School (OCS) Enlistment Option and agreed to serve as a member of the Selected Reserve (SELRES) for 6 years and as a member of the Individual Ready Reserve (IRR) for the balance of his 8-year contractual agreement.  His expiration of term of service (ETS) date was established as 6 August 2013. 

2.  In connection with this enlistment, he and an enlisting official signed Annex L (SLRP Addendum) and it was assigned an SLRP Control Number (09-45).  He stated/acknowledged:   

* he was a non-prior service applicant enlisting for 6 years 
* he was enlisting for the critical Unit Identification Code (UIC) WP7NBD which had been authorized for the SLRP
* he was enlisting in a State critical military occupational specialty (MOS) of 11A (Infantry) which had been authorized by the National Guard Bureau (NGB) for the SLRP
* he had 17 existing loans in the amount of $15,183.26; he understood the total amount of repayment for qualifying loans would not exceed $20,000 plus accrued interest 
* he understood the conditions for which the SLRP incentive would be terminated with or without recoupment 

3.  He entered active duty for training on 28 March 2008.  He completed OCS and he was honorably released from active duty on 18 June 2008. 

4.  He was honorably discharged from the ARNG as an enlisted member on 18 June 2008, and on 19 June 2008 he executed an oath of office and was appointed as a second lieutenant (2LT) in the CAARNG. 

5.  He entered active duty for training (ADT) on 14 October 2008 and completed the Infantry Officer Basic Course from 30 November 2009 to 11 March 2010.  He was promoted to first lieutenant (1LT) on 10 March 2010 and he was honorably released from active duty on 11 March 2010.

6.  He was honorably discharged from the ARNG on 15 March 2014 and his Federal recognition was withdrawn.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) is not available for review with this case. 

7.  On 8 February 2012, an official at the Incentives Task Force, Audit Program Office, CAARNG submitted a memorandum for record following a Command Judge Advocate review of the applicant's SLRP repayment.  This memorandum states: 

	a.  There was insufficient evidence of fraud or impropriety on behalf of the applicant to warrant settlement category 4 rating (fraud).  The Command Judge Advocate review concluded that the applicant's correspondence with the CAARNG provided no evidence of fraud or submission of false claims.

	b.  The settlement category is downgraded from 4 to 3 by the Command Judge Advocate because there is no supporting loan documentation on file to verify loan eligibility.  The applicant must provide the National Student Loan Data Base (NSLDS) loan documentation within 45 days of the initial notification of debt.  If the loans are deemed eligible, the applicant still needs an ETP from the NGB to avoid recoupment because he contracted for OCS cadet, 09S, which was not authorized in NGB policy.  He is subject to recoupment unless valid loan documentation is provided. 

8.  On 28 February 2012, by memorandum, the Commander, Soldier Incentives Assistance Center, Incentives Task Force, CAARNG notified the applicant that an audit of his incentive yielded a discrepancy that must be resolved.  He received $7,543.17 worth of SLRP incentive payments without supporting loan documentation.  He was provided with the documents and advised of the option to submit an ETP.  He did so, but his ETP is not available for review. 

9.  On 16 July 2014, the applicant's ETP was denied.  In reviewing his records, the Soldier Incentives Assistance Center, Incentives Task Force, CAARNG, determined that: 

	a.  A certified debt of $7,543.17 was submitted to the Defense Finance and Accounting Service on 23 October 2012; this debt cannot be corrected by the NGB via an ETP, per Department of Defense Financial Management Regulation (DODFMR), Volume 7A, chapter 50; Volume 5, chapter 28; and Army Regulation 37-104-4 (Military Pay and Allowances Policy), chapters 20 and 32.

	b.  The incentive in question also violated Department of Defense Instruction (DODI) 1205.21 (Reserve Component Incentive Programs Procedures), section 6.2; Title 10, U.S. Code, section 16301(a)(1)(a-d), which also cannot be corrected by the NGB. 

	c.  He could submit a waiver request to DFAS or an application to this Board. 

10.  Army Regulation 37-104-4 provides Department of the Army (DA) policies for entitlements and collections of pay and allowances.  It is used in conjunction with DODFMR, Volume 7, Part A (Vol 7A). 

	a.  Chapter 20 (Settlement actions authority) states only the Director, DFAS–IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the Army Board for Correction of Military Records (ABCMR).   

	b.  Chapter 32 (waiver of erroneous payments) states the Secretary of the 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 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.

11.  DOD Instruction 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 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. 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.

12.  Title 37, USC 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."

13.  Title 10, USC, 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."

14.  Title 10, USC, 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. 

15.  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 (hereafter referred to as “waiver applications”) be processed according to all pertinent statutes, regulations, and other relevant authorities.

	a.  E2.1.3. Debt.  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.  A payment that is not in compliance with applicable laws or regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the CAARNG on 7 August 2007.  He agreed to serve 6 years in the Selected Reserve.  When he enlisted, he signed an SLRP Addendum, enrolling himself in the ARNG's SLRP for loan repayment up to $20,000.  He and an enlisting official of the CAARNG authenticated this Annex with their signatures.  The Annex was assigned an SLRP Control Number.  He was discharged from the ARNG on 15 March 2014

2.  He completed the training course (Infantry) and served with the critical UIC he contracted for.  He also received payments towards his loans from the CAARNG based on this incentive.  However, in 2012, his account was audited and discrepancy was discovered.  The Incentives Task Force and/or Command Judge Advocate concluded there was insufficient evidence of fraud or impropriety on behalf of the applicant to warrant fraud or submission of false claims.  However, the Task Force determined there was no supporting loan documentation on file to verify loan eligibility. 

3.  He submitted an ETP and appears to have provided his NSLDS loan documentation; however, the CAARNG determined he contracted for OCS cadet, 09S, which was not authorized in NGB policy and that he was subject to recoupment (unless valid loan documentation is provided).

4.  He enlisted in good faith, signed the documentation that the CAARNG asked him to sign, fulfilled the contractual agreement that he signed (served for 6 years from August 2007 to at least August 2013), completed the training course he was asked to complete, served in the UIC he contracted for, and served honorably throughout this period.  From an equity standpoint, he appears to have satisfied the contractual agreement he signed.  This made him eligible for payment of the SLRP incentive. 

5.  From a statutory and regulatory standpoint, this is a valid debt and it is not in error.  However, as a matter of equity, he should be relieved of recoupment of the amount of $7,543.17 of the debt.  His records should be corrected to show he submitted an exception to policy request to the NGB and the NGB timely received, processed, and approved his request to retain the SLRP payments made on his behalf.

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 State National Guard records of the individual concerned be corrected by: 

* showing the NGB approved an ETP authorizing him to retain the SLRP payments made on his behalf
* returning to him any monies that have been recouped as a result of the SLRP debt established against him


      _________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)                                         AR20150003121



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ABCMR Record of Proceedings (cont)                                         AR20150003121



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