RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          3 November 2005
      DOCKET NUMBER:  AR20050002501


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 that the Army reimburse him for payments he made
on his student loans while a participant in the Student Loan Repayment
Program (SLRP).

2.  The applicant states, in effect, the Army should have paid off his
student loans and that he attempted many times to get them paid, to no
avail.  He contends that his student loans were paid off as a result of a
court order, that his civilian paychecks were garnished, and that he should
be reimbursed.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
23 March 1999.  The application submitted in this case is dated 31 January
2005.
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 enlisted in the U.S. Army Reserve (USAR) on 24 March 1993
for a period of 8 years.  His Statement of Understanding shows he enlisted
for the SLRP.  DA Form 5261-4-R (Student Loan Repayment Program Addendum)
shows the applicant acknowledged that he was contracting for an initial
Selected Reserve form of service of at least 6 years with a concurrent
contractual and statutory military service obligation of 8 years.

4.  On 23 March 1999, the applicant was released from the Selected Reserve
and assigned to the Army Reserve Personnel Command (Annual Training).

5.  In the processing of his case, an advisory opinion was prepared by the
USAR Montgomery GI Bill Program Manager.  The advisory opinion pointed out
that the applicant had been paid all required payments of his SLRP, in the
amount of $3092, for anniversary years 1995-1997.  Also, payments were not
required beyond 1997 because the loan was paid in full.  The advisory
opinion stated that the applicant and his unit failed on more than one
occasion to complete the required SLRP documentation correctly, the
original amount of his student loan was $8451, and the applicant continued
to make payments on his loans.  Once the correct documentation was
submitted, the loans totaled $3092 and that is the amount honored and paid
to the applicant.  The advisory opinion stated the applicant willingly paid
on his loans and reimbursement to the applicant was not authorized.

6.  A copy of the advisory opinion was provided to the applicant for
comment; however, he did not respond within the given time frame.

7.  On 8 October 2005, the USAR Pay Center, Fort McCoy, Wisconsin, stated
that had the correct SLRP documentation been submitted on a yearly basis
while the applicant was in the USAR his principal payments would have
totaled $5778.03 for anniversary years 1995 through 1999.  Also, in January
2004 the applicant's student loans were in default and no payments were
made.

8.  On 11 October 2005, the USAR Pay Center communication was provided to
the applicant for comment or rebuttal.  The applicant responded on 22
October 2005 (via email).  In summary, he states it is a disgrace that the
Government can break a contract (a legal agreement) with no recourse.  He
contends that he requested the paperwork process begin for the SLRP on
numerous occasions; however, the personnel in his units were dysfunctional
and the unit was managed like a circus.  He states the loan provider had a
court order instituted and his personal paychecks were garnished each week
and he lost well over $5000.

9.  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
plus the accrued interest not paid by the Department of 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, then $500 becomes the calculated amount for
repayment that year.

10.  Paragraph 5-1.4.1a(2) of Army Regulation 135-7 (Army National Guard
and Army Reserve/Incentive Programs) states commanders should ensure the
Soldier is aware that it is the Soldier's responsibility to initiate the
request for loan(s) repayment during each year the Soldier meets the
requirements cited on DA Form 5261-4-R by completing DD Form 2475 (DOD
Educational Loan Repayment Program (LRP) Annual Application) and submitting
it to the personnel officials of his or her assigned command.
11.  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.

12.  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.

13.  Title 10, U.S. Code, section 1552, the law which provides for the
Board, states that "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.  Evidence of record shows the applicant enlisted in the USAR, in good
faith, for the SLRP incentive on 24 March 1993.

2.  It appears the applicant obtained his first loan in 1994, as the
advisory opinion indicated the first payment year was 1995.  The advisory
opinion also stated the applicant and his unit failed on more than one
occasion to complete the required SLRP documentation correctly.  It appears
that, as a result, the applicant continued to make payments on the loan on
his own.

3.  Army Regulation 135-7 states that it is the Soldier's responsibility to
initiate the request for loan repayment.  However, the paperwork is to be
submitted to the personnel officials of his or her assigned command.  The
applicant should not be penalized for his command's failure to ensure the
documentation was completed correctly.

4.  Although the advisory opinion indicated the applicant's loans were in
default in 2004, there is no evidence to show they were in default at any
time prior to his release from the Selected Reserve in March 1999.

5.  On 11 October 2005, the USAR Pay Center stated that had the correct
SLRP documentation been submitted on a yearly basis while the applicant was
in the USAR his principal payments would have totaled $5778.03 for
anniversary years 1995 through 1999.  The advisory opinion indicated the
applicant had been paid $3092 for anniversary years 1995 through 1997.

6.  Therefore, 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 is accepted by the officials processing you for enlistment as
payable under the SLRP and it is later discovered that, due to Government
error it fails to be paid, 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:

TH______  JI______  CD______  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  That the DA Form 5261-4-R be amended to include the sentence "If a
student loan is accepted by the officials processing you for enlistment as
payable under the SLRP and it is later discovered that, due to Government
error it fails to be paid, the Army Board for Correction of Military
Records may pay the loan, at its sole discretion, in accordance with Title
10, US. Code, section 1552."

2.  That in accordance with Title 10, U.S. Code, section 1552, the Defense
and Finance and Accounting Service shall remit payment to the individual
concerned in the amount of $2686.03, the difference between the principal
payments for anniversary years 1995 through 1999 ($5778.03) he would have
been due had the documentation been submitted correctly and in a timely
manner and the




amount previously paid by the USAR Pay Center Fort McCoy, Wisconsin
($3092.00), as a result of the forgoing correction.



            ___Thomas Howard______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002501                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.1200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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