RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 June 2005
      DOCKET NUMBER:  AR20040005450


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Karen Y. Fletcher             |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reimbursement of $3,689.25 in loan
repayment program (LRP) benefits.

2.  The applicant states, in effect, that when he enlisted in August 1989,
he was guaranteed $10,000.00 in LRP benefits.  He claims that in August
1994, the Army paid $6,310.75 toward his student loan.  However, following
this payment, the Army made no further payments, citing the default status
of the loans even though he had completed all the necessary forbearance
forms to keep the loan from entering a default status.  He states that he
remains liable for repayment of the loan and it appears the Army will make
no further payments.  He claims that he has exhausted all administrative
remedies to resolve this issue and has failed in his efforts to get the
Army to comply with the terms of his enlistment contract.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Student Loan Repayment Program
Addendum
(DA Form 5261-4-R), Reserve Component Pay Support Office Student Loan
Repayment Memorandum, Draft Response to Congressional Inquiry, Educational
Loan Repayment Program Annual Application (DD Form 2475) and Employer
Acknowledgement of Wage Withholding Memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 September 1997.  The application submitted in this case
was received on 13 August 2004.

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 limitations 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’s record shows that he enlisted in the United States Army
Reserve (USAR) for eight years on 30 August 1989.  In connection with this
enlistment he enrolled in the LRP.  The LRP Addendum (DA Form 5261-4-R) to
his USAR enlistment contract confirms he enlisted in the USAR with
entitlement to repayment of student loans in an amount not to exceed
$10,000.

4.  The DA Form 5261-4-R further stipulated that payment of student loans
under the LRP would be paid in the amount of $1,500 for each year of
satisfactory service performed during the contractual commitment.  These
payments would be made on the anniversary date of his enlistment and the
maximum number of payments authorized would be six.  Section IV
(Obligation) specified the member agreed to serve six years of his eight-
year enlistment in the Selected Reserve.  Section V (Entitlement) specified
that the Government would repay a designated portion of any outstanding
loans provided the loan was not in default.  Section VI (Suspension)
specified that entitlement to receive payments would be suspended if the
applicant entered a period of service where favorable personnel actions
were suspended (FLAG).

5.  A memorandum from the Reserve Component Pay Support Office, Fort
Indiantown Gap, Pennsylvania, shows that the Defense Finance and Accounting
Service (DFAS) made LRP payments totaling $6,310.75 on behalf of the
applicant for the years 1990 through 1993.

6.  On 22 October 1995, a suspension of favorable personnel actions (FLAG)
was imposed on the applicant based on his failure of the Army Physical
Fitness Test (APFT).  The record contains no documents indicating this FLAG
action was ever lifted, and the Military Personnel Records Jacket (MPRJ)
forwarded for filing at the National Personnel Records Center (NPRC) still
contains a FLAG cover sheet.

7.  On 14 October 1996, a partially completed DD Form 2475 was completed by
the applicant.  This form does not contain a signature in the personnel
office verification section.  Further, it does not contain any information
in the loan status confirmation portion of the form.

8.  On 1 October 1996, the applicant was transferred to an inactive status
and assigned to the USAR Control Group.  On 1 September 1997, he was
honorably discharged from the USAR.  In April 1998, he enlisted in the
Regular Army and entered active duty.  As of the date of his application to
the Board, he remained serving in this status.
9.  On 16 April 1997, the applicant’s employer acknowledged receipt of an
Order of Withholding from Earnings on the applicant.  This document shows
that $30.00 a week would be withheld from the applicant’s pay to pay his
outstanding educational debt.

10.  In connection with the processing of this case, an advisory opinion
was obtained from the LRP Program Manager, Reserve Component (RC)
Entitlements Branch, Human Resources Command (HRC), St. Louis, Missouri.
This official recommends the applicant’s request be denied.  He further
states that the statute of limitations as set forth in the Barring Act of
1940 bars action on a claim unless it is submitted within six years after
the date such claim first accrued, and in the applicant’s case this statute
of limitations expired in 2002, six years after his transfer to the USAR
Control Group.

11.  The HRC opinion further indicates that records show the applicant
became eligible for LRP payments on 20 August 1990, and he received
benefits totaling $6,310.75 between 1990 and 1993.  Further, the records
show the applicant’s last request for a LRP payment was received by DFAS at
Fort McCoy in June 1996; however, this request was returned due to a
discrepancy and was never resubmitted for processing.

12.  Army Regulation 135-7 (Incentives Programs) prescribes policies and
procedures for the administration of the Army National Guard (ARNGUS) and
the United States Army Reserve (USAR) incentive programs. These programs
include the LRP.  Chapter 5 contains the polices and procedures for the
repayment of student loans incentive program.  Paragraph 5-1.7 contains
guidance on the administration of the program.  It states, in pertinent
part, that Part I of the DD Form 2475 is completed by the Soldier and
surrendered to the unit personnel office.  The unit personnel office is
responsible to complete Part II and send the form to the appropriate
lending agency.  The lending agency completes Part III and returns the form
to the unit for forwarding to the appropriate finance office.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be reimbursed for student
loan payments that should have been paid under the terms of his LRP USAR
enlistment incentive was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms that a FLAG action was imposed on the
applicant in October 1995 and there is no indication or documentation to
confirm when and if this action was lifted.  As a result, under the terms
of the LRP addendum to his USAR enlistment contract, LRP payments would
have been suspended on the date the FLAG action was imposed.

3.  Further, the applicant fails to provide the original promissory notes
and/or any information regarding what the conflict was with his application
when it was returned by DFAS.

4.  The applicant also fails to provide supporting statements from unit
personnel officials regarding his eligibility for LRP payments at the time
the 1996 DD Form 2475 was submitted.  Absent some certification from these
unit personnel officials confirming his eligibility at the time, and/or
information regarding the promissory note conflict that resulted in the
return of his application, there is an insufficient evidentiary basis to
support repayment of his student loans at this late date.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 September 1997, the date of his
discharge from the USAR.  Therefore, the time for him to file a request for
correction of any error or injustice on this issue expired on 31 August
2000.  However, he failed to 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 timely file in
this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KYF _  ___KLW _  ___WDP   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            ____Karen Y. Fletcher____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005450                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1997/09/01                              |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 1026  |113.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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