RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 February 2004
         DOCKET NUMBER: AR2003088640


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John P. Infante		Member
Ms. Karen A. Heinz		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, correction of her records to show she completed her obligation under the Specialized Training Assistance Program (STRAP) in December 1996 as shown on her original contract she signed on 2 July 1990.

2. The applicant states that the date on her original contract shows her obligation ended in December 1996 and that she resigned in March 1997. She indicates that the STRAP office stated that the contract on file was not executed until October 1990, but the date of her signature was 2 July 1990. She also states that both copies of the contract have a signature date of 2 July 1990 which is the same date of her oath of office. She believes the recruiter misled her by enrolling her in a program under false pretenses and that the dates were changed after her oath of office without her knowledge.

3. The applicant provides two copies of a DA Form 5685-R (New Specialized Training Assistance Program (New STRAP) Service Agreement).

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error which occurred on 1 March 1997. The application submitted in this case is dated 24 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant accepted appointment as a Reserve commissioned officer
on 2 July 1990 in the Army Nurse Corps.

4. The applicant provided a copy of a 5-page DA Form 5685-R, version dated March 1990, which shows she had been accepted for attendance at the Lansing School of Nursing, Bellermine College for a Bachelor of Science Degree for specialized training as a medical-surgical nurse. Under item 5 of Section IV (Obligation), she acknowledged that she would incur an obligation to serve in the Ready or Selected Reserve on successful completion of the specialized training program in return for the financial assistance she would receive under the New STRAP. Under item 5b of Section IV, she further agreed to fulfill her service obligation after she completed her specialized training in a troop program unit (TPU) of the Army National Guard (ARNG) or U.S. Army Reserve (USAR) or as an Individual Mobilization Augmentee (IMA). She agreed that she would be entitled to a monthly stipend during her specialized training program at the rate paid to officers participating in the Health Professions Scholarship Program and would serve 2 years in a TPU of the ARNG, USAR, or as an IMA for each year or part thereof during which she received a monthly stipend.

5. The first copy of the DA Form 5685-R, version dated March 1990, also shows she was scheduled to commence participation in the New STRAP on 27 August 1990 and to complete her specialized training on 30 December 1993. Under item 6 of Section IV, her service obligation incurred by participation in the New STRAP is shown as "29 December 96."

6. In Section VIII (Recoupment), the applicant agreed that following completion of the specialized training, if she failed to satisfactorily complete the period of obligated service described in section IV above, she may be ordered to reimburse the Government for the total amount of the stipend paid to her including accrued interest, in accordance with applicable law, regulations, and directives.

7. Section IX (Statement of Understanding) shows she signed the contract
on 2 July 1990.

8. Section X (Certification of Service Representative) shows the service representative signed the contract on 2 July 1990. This copy of the DA Form 5685-R was not signed by the New STRAP manager.

9. The applicant provided a second copy of a DA Form 5685-R, version dated March 1990. However, page 2 of this copy is from the February 1989 (Test) version. Under item 6 of Section IV, her service obligation incurred by participation in the New STRAP is shown as "30 Dec 2001." Section IX shows the applicant signed the contract on 2 July 1990. Section X shows the service representative signed the contract on 2 July 1990. The New STRAP manager accepted and approved the applicant's participation in the New STRAP and signed the document on 1 October 1990.

10. Headquarters, 81st Regional Support Command Orders 054-18 dated 23 February 1997 released the applicant from the 5010th U.S. Army Hospital in Louisville, Kentucky and voluntarily reassigned her to the USAR Control Group (Reinforcement) in St. Louis, Missouri effective 1 March 1997.

11. Paragraph 11-13a of Army Regulation 135-7 (Incentive Programs) governs the contractual service obligation and method of fulfillment of officers who participate in the New STRAP. This portion of the regulation states that an officer incurs an obligation to serve 2 years in the Individual Ready Reserve, or 2 years in the Selected Reserve (except on Active Guard Reserve status), as appropriate, for each year or partial year for which he or she receives financial assistance. This contractual obligation is incurred when the officer signs the DA Form 5685-R. This contractual obligation may extend beyond the officer's statutory military service obligation incurred by law.

12. Paragraph 11-13b of Army Regulation 135-7 states that, unless the officer is earlier terminated from the program, discharge of the contractual agreement will not begin until successful completion of the specialized training program.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record shows the applicant accepted appointment as a Reserve commissioned officer on 2 July 1990 in the Army Nurse Corps.

2. The evidence of record shows the applicant signed a DA Form 5685-R, version dated March 1990, for participation in the New STRAP. This contract shows she was scheduled to begin specialized training on 27 August 1990 and to complete specialized training on 30 December 1993. Her service obligation incurred by participation in the New STRAP was shown as 29 December 1996.

3. However, the applicant's contract also shows she acknowledged that she had incurred a service obligation of 2 years for each year of specialized training under the New STRAP. It appears that her service obligation at the completion of her specialized training should have been 29 December 1999.

4. The applicant submitted a second copy of a DA Form 5685-R. It appears this document was modified after the applicant signed it. Page 2 was replaced with an obsolete version of the form and her service obligation had been changed to read 30 December 2001. It cannot be determined how the date 30 December 2001 was arrived at.

5. Although the second copy of the DA Form 5685-R appears to have been modified after the applicant signed it, the applicant was fully aware of when her service obligation under the terms of the contract was due to expire.

6. The erroneous date of 29 December 1996 in item 6 does not negate the fact she acknowledged in item 5b that she owed 2 years for each year she received a stipend under the New STRAP.

7. Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 March 1997; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
28 February 2000. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.
BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

FNE_____ JPI______ KAH_____ DENY APPLICATION

1. The Board determined that 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.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  Fred N. Eichorn_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088640
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040205
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	112.0000
2.
3.
4.
5.
6.