RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2008
	DOCKET NUMBER:  AR20070014347 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 his student loans be repaid per the Student Loan Repayment Program (SLRP) incentive for which he enlisted.

2.  The applicant states that the reenlistment noncommissioned officer (NCO) physically showed him a copy of a message authorizing the $20,000 SLRP for military occupational specialty (MOS) 71L (Administrative Specialist) Reservists who reenlisted for 6 years.

3.  The applicant provides his Federal Court cases with related documents.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had prior service, the applicant enlisted in the U. S. Army Reserve (USAR) on 21 November 1992 for 1 year.  He reenlisted in the USAR on 6 November 1993 for 6 years.  His Student Loan Repayment Program Addendum shows that he reenlisted to serve in MOS 71L, for which Headquarters, Department of the Army had approved a maximum of $20,000 in loan repayments.  

3.  On 1 August 1998, the applicant took out a $3,000 Stafford Loan.  The available evidence shows that only $1,500 of that $3,000 was disbursed.  The applicant applied for repayment of this loan around January 1999.

4.  In a memorandum dated 24 March 1998 (but probably meant to have been dated 24 March 1999), the SLRP Team (of the Reserve Component Pay Support Office) at Fort McCoy, WI notified the applicant’s commander that MOS 71L was not a qualifying MOS and his unit was not qualifying.  The applicant would have to request an exception to policy.

5.  On 17 May 1999, the applicant’s unit requested an exception to policy for the applicant to receive the SLRP incentive.

6.  On 6 August 1999, the Office of the Deputy Chief of Staff for Personnel informed the Office of the Chief, Army Reserve that it could not approve the request for exception to policy and recommended the applicant submit a request to the ABCMR.  On 15 September 1999, the 104th Division informed the Commander, 6th Brigade, 104th Division that the applicant should be counseled as soon as possible regarding the status (i.e., disapproval) of his request and to render him assistance in preparing an application to the ABCMR.

7.  The applicant reenlisted in the USAR in September 1999 and has had continuous service in that component since.

8.  In October 2000, the applicant contacted his Member of Congress and filed for a Congressional inquiry.  On 28 March 2001, the 104th Division responded to an inquiry from the applicant’s Member of Congress.  The Division told him that the applicant’s request for an exception to policy had been disapproved, but it was recommended that he appeal to the ABCMR.  A check with the ABCMR revealed that the applicant never applied.  

9.  In October 2001, the applicant filed an action with the U. S. District Court for the District of Colorado (against the Secretary of the Army and the reenlistment NCO) for payment of the SLRP.  The Government filed a motion to dismiss.  In December 2001, the applicant filed to substitute the United States as the defendant.  On 7 August 2002, the District Court transferred the applicant’s primary claim (for payment of the SLRP) to the Court of Federal Claims.

10.  On 4 June 2003, the applicant filed a complaint with the U. S. Court of Federal Claims.  On 27 April 2005, the Court granted the Government’s Motion to Dismiss.  On 30 August 2005, the applicant appealed to the U. S. Court of Appeals for the Federal Circuit from the U. S. Court of Federal Claims 27 April 2005 final judgment.  The judgment of the Court of Appeals for the Federal Circuit is not available.

11.  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.  If the amount set for repayment is less than $500.00, then $500.00 becomes the calculated amount for repayment that year. 
12.  Army Regulation 135-7 (Incentive Programs), in pertinent part, restricts the SLRP to those Reservists who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOSs and units, which is updated every 6 months.  This educational incentive may only be elected at the time of enlistment or reenlistment.  This incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility by being separated from his or her unit.

13.  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.  It is uncertain how much of a deciding factor the SLRP incentive was in the applicant’s decision to reenlist in the USAR in 1993.  It appears he did not obtain a qualifying student loan until 1998.  Nevertheless, the applicant’s reenlistment contract does show that he was promised the SLRP.  In his court-filed documents, the applicant asserted the SLRP was his primary incentive for reenlisting for six years.

2.  Errors do occur when the list of MOSs and units which qualify for the SLRP change every 6 months.  Had the applicant become aware of the error early in his reenlistment, he would have had the option of requesting separation based upon an erroneous enlistment commitment.  However, he did not discover the error until more than 5 years into his commitment.  Even though he waited so long to apply to the ABCMR, it would be an injustice not to give him an enlistment incentive which he reasonably believed would be fulfilled.  The applicant continued to serve in the USAR even after the error was discovered.

3.  It is noted that the applicant applied for a $3,000 student loan.  However, the available evidence of record shows that only $1,500 of that loan was disbursed.  In the absence of evidence to show that he received more than $1,500 in student loans, $1,500 is the amount that should be paid to him at this time.  If he has evidence to show otherwise, he may reapply to this Board.


4.  The applicant’s Student Loan Repayment Program Addendum may be corrected to show it was amended to show he was approved for the SLRP as an exception to policy.  This would allow the Defense Finance and Accounting Service to pay him the amount his lending institution would have been paid under the SLRP.

BOARD VOTE:

__xxx___  __xxx _  _  _xxx__     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 records of the individual concerned be corrected by: 

     a.  amending his Student Loan Repayment Program Addendum to show he was approved for the SLRP in an amount up to $20,000 as an exception to policy; and
 
     b.  paying to him, in accordance with Title 10, U. S. Code, section 1552, $1,500, the total amount of his disbursed loan to which he would have been entitled had he been eligible for the SLRP, as a result of the foregoing correction. 




      _             XXX            __
                CHAIRPERSON






ABCMR Record of Proceedings (cont)                                         AR20070014347


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508