RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050002355


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 repayment of all his student loans from the
period      19 July 1991 through 6 September 2002 under the Student Loan
Repayment Program (SLRP).

2.  The applicant states he submitted the documentation correctly and the
loan payment did not occur.  He pursued repayment through administrative
channels at the unit and the education center.  Repayment did not occur.
He filed a Congressional Inquiry that determined repayment was due.
Repayment did not occur.  Payment in the amount of $465.00 was finally
made.  Further repayment was refused.

3.  The applicant provides letters from his Senator's office dated 31 March
1998, 15 April 1998, 27 April 1998, 12 May 2000, 7 June 2000, 25 July 2000,
and       28 July 2000; a letter from the U. S. Army Reserve Personnel
Command        (AR-PERSCOM) to his Senator's office dated 20 July 2000;
letters from the Chief of Legislative Liaison, Congressional Inquiry
Division, Pentagon to his Senator's office dated 7 April 1998, 2 May 2000,
30 May 2000, and 11 July 2000; a Table of Contents; a Contact Information
sheet; a letter from him to his Senator dated 26 March 2000; an email dated
13 March 1998; and an Army Continuing Education System Record dated 8 April
1998.

4.  The applicant also provides two memorandums, one dated 8 April 1998 and
one dated 9 April 1998; a letter to his Senator from the U. S. Army
Transportation Center dated 15 April 1998; a fax cover sheet dated 21 March
2000 with one attachment; three DD Forms 2475 (DOD Educational Loan
repayment Program (LRP) Annual Application), signed by the loan officer on
13 October 1998; a Student Summary Inquiry dated 13 May 1999; two letters
from the applicant to his lending institutions dated 26 March 2000 and one
letter dated 7 June 2000; an undated letter to his Senator; and his U. S.
Army Reserve (USAR) enlistment contract.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  The applicant enlisted in the USAR on 19 July 1991.  A DA Form 5261-4-R
(Student Loan Repayment Program Addendum) was completed wherein he
acknowledged he enlisted for a military occupational specialty (MOS) that
was authorized the SLRP (up to a maximum of $10,000).  He agreed to serve
his initial six years in the Selected Reserve in the MOS.  He understood
his entitlement under the SLRLP would be terminated if he separated from
the Selected Reserve as an enlisted person for any reason except when
separated for a period for nonavailability authorized a suspension.

3.  On 2 May 1996, the applicant enlisted in the Regular Army.  He was
commissioned in 2002 and served on active duty.  He was released from
active duty on 5 September 2005.

4.  The applicant provided an email dated 13 March 1998 from him to an
individual (position not identified) asking for assistance.  The applicant
stated he applied to have his loans repaid in 1993.  He submitted the
information to his unit administrator.  The unit administrator took all the
information and told him it would be taken care of.  After several months,
he was informed by his loan agencies that no payments had been made and all
the loans were then in default.  The unit administrator told him she
remembered receiving the documents but had no information as to the
location of the paperwork or if any action had been taken.  He attempted to
resubmit his request for repayment and was informed the Army would not
repay on defaulted loans.

5.  In a 20 July 2000 letter from AR-PERSCOM to the applicant's Senator,
that command stated the Student Loan Repayment office at Fort McCoy had
recently forwarded a check for the amount of $461.54 to the University of
Southern California (USC) to pay off the applicant's Federal Perkins Loan.
The letter went on to state, "Unfortunately, because (the applicant) is a
conscientious soldier and paid for his other loans to maintain his security
clearance level we are unable to reimburse him."

6.  In the processing of this case, an advisory opinion was obtained from
the     U. S. Army Reserve Montgomery GI Bill Program Manager, U. S. Army
Human Resources Command – St. Louis (USAHRC – STL).  That office noted, in
effect, that nothing had changed since the 20 July 2000 letter to the
applicant's Senator. That office also noted that, based on the three DD
Forms 2475 submitted by the applicant (one for a Perkins Loan in the
original amount of $2,000, one for a USC Loan in the original amount of
$3,680.00, and one for a USC Loan in the original amount of $4,376.00), the
loan in the amount of $4,376.00 was a private loan and not a qualifying
loan to be repaid by the Government.

7.  A copy of the advisory opinion was provided to the applicant.  He did
not respond within the given time frame.

8.  In the processing of this case, the Board analyst noticed the applicant
had mentioned additional loans.  The applicant was contacted, and he
provided additional promissory notes.

9.  The Student Loan Repayment office at Fort McCoy was contacted again and
asked, if all the available promissory notes had been submitted for
repayment in a timely manner and if all the student loans had been eligible
for repayment under the SLRP, what amount would have been repayable.  That
office calculated the payments due on the available promissory notes.
(I.e., one DD Form 2475 for the qualifying Perkins Loans was in the total
amount of $2,000; however, it covered two Perkins Loans of $1,000 each.
Only one of the Perkins Loans promissory notes was available.  That office
stated they could not make a determination on the Perkins Loans for which
the promissory note was not available because the promissory note verifies
the purpose for which the loan was taken.)

10.  The Student Loan Repayment office determined the applicant's total
amount repayable would have been $3,136.92 (from 1994 through May 1996 when
the applicant enlisted in the Regular Army).  This response was provided to
the applicant for comment or rebuttal.  He responded by providing
justification to show on why all four loans in question should be paid to
the fully authorized amount of $10,000.  He provided a graphical
representation of how payments should have been remitted over the entire
period of eligibility.

11.  The applicant stated Title 10, U. S. Code, specifies that repayment is
limited to any loan covered under Title 20, U. S. Code, sections 1071,
1077a, and 1087aa.  He stated that, although section 1071 and 1087aa cover
the Stafford and Perkins Loans programs respectively, section 1087a is
applicable to private and/or institutional loans.

12.  The applicant stated, in effect, he joined the USAR as a way to offset
the high cost of tuition inherent in obtaining a college education.  He was
unable to complete his education, however, because the Army did not live up
to their end of the bargain.  He was forced to join the Regular Army to
offset the tremendous debt.  His [Regular Army] recruiter explained that
all his benefits would remain intact.  Signing his Regular Army contract,
however, invalidated the SLRP.  The Army's failure directly contributed to
his inability to continue his education.  If he had been able to continue
he would have expended the total $10,000 amount authorized by the SLRP.

13.  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
$500.00 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.  The maximum amount of loans
against which the 15 percent is computed will not exceed $10,000.  This
equates to a maximum annual repayment of $1,500 plus interest.  If the
amount set for repayment is less than $500.00, then $500.00 becomes the
calculated amount for repayment that year.

14.  To be eligible for the SLRP incentive, a person must contractually
obligate himself or 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.
Entitlement to the SLRP will stop if the Soldier is separated from the
Selected Reserve.  Each complete satisfactory year of service performed
under this SLRP agreement establishes an anniversary date.  Any qualifying
loan which is at least a year old may then be paid in accordance with the
terms of this educational enlistment incentive.

15.  The Government will not make any payments to the Soldier or reimburse
a Soldier if he or she pays off a student loan.  The Government will only
pay the lending institution.

16.  Title 20, U. S. Code, chapter 28 (Higher Education Resources and
Student Assistance), subchapter IV (Student Assistance), Part C (William D.
Ford Federal Direct Loan Program), section 1087a (Program Authority)
subsection (b) states that the program established under this part shall be
referred to as the "William D. Ford Federal Direct Loan Program" and …shall
be known as "Federal Direct Stafford/Ford Loans.

17.  Title 10, U. S. Code, section 1552, the law which provides for the
                                  Board,
states, “The Secretary may pay, from applicable current appropriations, a
claim for the loss of pay, allowances, compensation, emoluments, or other
pecuniary benefits, or the repayment of a fine or forfeiture, if, as a
                                  result of
correcting a record under this section, the amount is found to be due the
                                  claimant
on account of his or another’s service in the Army, Navy, Air Force, Marine
                                  Corps
or Coast Guard, as the case may be.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the USAR, in
good faith, for the SLRP 19 July 1991.  He subsequently obtained several
student loans, some of which were later determined not to be eligible for
repayment under the SLRP.

2.  The applicant contends he applied for repayment of his loans in 1993,
at which time his unit lost the paperwork.  Since it appears his loan
institutions were demanding repayment, he paid off most of the loans.
Therefore, when his paperwork finally was processed, he was informed some
of his loans were not eligible for repayment under the SLRP and he was told
his eligible loans could not be repaid since payments may not be made to
individuals.  (One payment of $461.54 to pay off one of the applicant's
Federal Perkins Loans was eventually made.)

3.  The applicant contended (in his response to the Student Loan Repayment
office's calculation of what amount of his loans would have been payable
had all the paperwork been submitted on time and had they all been
eligible) that section 1087a of Title 20, U. S. Code is applicable to
private and/or institutional loans.  However, that section is applicable
only to loans made under the William D. Ford Federal Direct Loan Program.
The applicant does not contend nor does he provide evidence that any of the
ineligible loans were made under that program.

4.  The applicant's contention that he, in effect, was forced to join the
Regular Army to offset the tremendous debt incurred as a result of his
student loans not being repaid has been considered.  He also contended his
[Regular Army] recruiter explained that all his benefits would remain
intact.  However, his USAR contract, in particular the DA Form 5261-4-R,
was very clear that his entitlement to the SLRP would terminate if he
separated for any reason except for a period for nonavailability authorized
a suspension.

5.  The applicant contended that, if he had been able to continue his
education, he would have expended the total $10,000 amount authorized by
the SLRP.  However, it would not be equitable to pay an entitlement based
on speculations that the full entitlement would have been used had certain
circumstances been different.

6.  Nevertheless, the Student Loan Repayment office determined the
applicant's total amount repayable would have been $3,136.92 had all of the
applicant's loan repayment paperwork been submitted on time and had all his
student loans (for which promissory notes are available) been eligible for
repayment under the SLRP.  Considering the applicant's good faith service
in the Army (enlisted and commissioned service, in the USAR and the Regular
Army), it would be equitable to reimburse him this amount.

7.  The applicant’s military records may be corrected to show his DA Form
 5261-4-R, section V, was amended to include the sentence, “If a student
loan obtained after enlistment is later discovered to not be payable for
reasons of law or regulation, the Army Board for Correction of Military
Records may pay the loan, at its sole discretion, in accordance with Title
10, U.S. Code, section 1552.” This would allow the Board to invoke that
provision and pay him the amount his lending institution would have been
paid under the SLRP.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__mkp___  __lds___  __mjf___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

     a.  amending his DA Form 5261-4-R, section V, to include the sentence,
“If a student loan obtained after enlistment is later discovered to not be
payable for reasons of law or regulation, the Army Board for Correction of
Military Records may pay the loan, at its sole discretion, in accordance
with Title 10, U.S. Code, section 1552”; and

     b.  in accordance with Title 10, U. S. Code, section 1552, DFAS shall
remit payment to the individual concerned in the amount of $3,136.92, the
total amount of his loans to which it has been determined he would have
been entitled as a result of the foregoing correction.

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
repaying all his student loans from the period 19 July 1991 through 6
September 2002.




                                  _Margaret K. Patterson
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002355                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |112.12                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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