IN THE CASE OF:	  

		BOARD DATE:	        13 JANUARY 2009

		DOCKET NUMBER:  AR20070016389 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her request that the recoupment actions by the Defense Finance and Account Service (DFAS) for her Specialized Training and Assistance Program (STRAP) debt be terminated be reconsidered.

2.  The applicant essentially states that the Army Board for Corrections of Military Records (ABCMR) cited a later regulation than the one in effect at the time and gave no credit for time she served at drill from 2001 to 2004 or in the United States Army Reserve (USAR) Individual Ready Reserve (IRR).  She also contends that the ABCMR cited the wrong dates for the alleged start of recoupment and shifted the burden from the Army to her to provide the basis for recoupment.  

3.  The applicant provides page 2 of a letter, dated 26 October 2007, which was jointly signed by the applicant and her counsel; a letter, dated 3 August 2005, from the Office of the Staff Judge Advocate, Headquarters, United States Army Reserve Command, Fort McPherson, Georgia to her counsel; a letter, dated 
16 February 2007, from the DFAS Denver, Colorado Center to the applicant; a letter, dated 20 March 2007, from her counsel to the DFAS Denver, Colorado Center; a letter, dated 10 August 2007, from the Department of the Treasury Financial Management Service in Birmingham, Alabama; and a nearly complete copy of military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060013274 on 
1 May 2007 in support of this application.  


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be granted the relief she is requesting.

2.  Counsel essentially states that the findings of the ABCMR in the previous proceedings are not supported by the record.  He also states that the regulation cited by the ABCMR is for the new STRAP, while the applicant completed her STRAP training in 1994.  He further asserts that the ABCMR failed to give the applicant any credit against her alleged debt for "good" years she completed in the USAR as required by regulation and failed to explain how a discharge by the Army, at the convenience of the Army and without warning of any kind of possible monetary liability in the form of cash recoupment, was adequate.  Additionally, he contests certain findings and conclusions from the previous ABCMR proceedings.  

3.  The applicant's counsel also contends that the ABCMR failed to give the applicant any credit against her alleged debt for "good" years she completed in the Reserves as required by regulation.  He also states that the ABCMR failed to explain how a discharge by the Army, at the convenience of the Army and without warning of any kind of possible monetary liability in the form of cash recoupment, was adequate.  

4.  The applicant's counsel further states that the applicant denied that she renegotiated her STRAP agreement in 2001 to extend her alleged obligation until 30 October 2008.  

5.  The applicant's counsel also argues that the applicant should be given credit for 3 years of drilling from 2001 to 2004, which would cut her alleged obligation by three sevenths, or 42.85 percent, and that on an alleged obligation of $52,000.00 it would be reduced by $22,282.00, to $29,718.00.  He further states that the applicant was discharged under medical conditions in April 2004, but that the Army's warnings in offering the applicant her choices did not mention, refer, or even hint that a recoupment action was possible or even contemplated.  Additionally, he states that a debt of $52,000.00 is a major component that certainly would have affected the choice of any Soldier had they been informed of it, and that the lack of such a warning voids the Army's claim for recoupment.  

6.  Further, the applicant's counsel states that paragraph 11-3 of Army Regulation 135-7, dated 15 April 1996, states that an officer is given an obligation of 2 years in the IRR or 2 years in the Selected Reserve for every year in which STRAP funds were received, but it does not state a credited year, a drilling year, or a "good" year for points.  He also contends that there are no grounds for recoupment under paragraphs 11-10 or 11-11 of Army Regulation 135-7.  

7.  The applicant's counsel also states that the letter from an official at the United States Army Human Resources Command with the last name of F**e who stated that the applicant's discharge was not a "true" medical discharge because the applicant did not go before a PEB is not credible, as the applicant simply asked for her honorable discharge on the approved list of options given her.  Also, he argues that Army Regulation 135-7 does not have to provide an exception for recoupment because of medical discharge; the burden is on the Army.  He also contends that the Army must be authorized by regulation to collect.

8.  Counsel provides a three-page self-authored letter, dated 11 November 2007; a letter, dated 16 August 2000, from him to the Chief, Army Reserve; a letter, dated 6 October 2008; a self-authored letter, dated 6 October 2008, which was addressed to the analyst for these proceedings; two self-authored letters, both dated 14 December 2007, addressed to the Department of the Treasury and Diversified Collection Services, Inc.; and a self-authored letter, dated 15 April 2008, addressed to the Department of the Treasury in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060013274, on 1 May 2007.

2.  In the previous ABCMR proceedings, the applicant, who signed a STRAP contact in which she accepted $37,344.00 in exchange for becoming qualified in area of concentration (AOC) 60N (Anesthesiologist) and serving in the Ready Reserve for 3 years, contended that she was assigned to a unit in Spokane, Washington and attended drills at Washington University Hospital, and also completed summer drills at Walter Reed Army Medical Center.  She also contended that she was terminated on 25 April 2004 at the convenience of the Army without any basis for recoupment.  However, the ABCMR denied the applicant's request to be relieved of her STRAP debt as she did not complete the term of her STRAP contract by being credentialed in AOC 60N.  It further determined that the applicant renegotiated her STRAP contract to allow her to complete the terms of the contract by serving in the United States Army Reserve until 30 October 2008, but that when the applicant was discharged due to a medical disqualification on 25 April 2004, her STRAP agreement was terminated uncompleted, which necessitated recoupment action be taken.  Additionally, it stated that Army Regulations do not provide an exception to the recoupment requirements to officers who are separated for medical disqualification.
3.  Department of Defense Instruction 1205.31 (Reserve Component Incentive Programs Procedures), dated 20 September 1999, provides that officers who fail to complete for any reason the baccalaureate degree program for which stipend assistance is provided or failed to complete an incurred obligation (emphasis added) may be required, at the discretion of the Secretary concerned, to either:

	a.  perform 1 year of active duty for each year (or part thereof) for which stipend assistance was provided; or

	b.  repay the Government an amount equal to the total amount paid under the stipend program.

4.  Army Regulation 135-7 prescribes policies and procedures for the administration of Army National Guard (ARNG) and USAR incentive programs.  Chapter 11 prescribes policy and procedures governing the STRAP for Medical Corps (MC) and Army Nurse Corps (AN) officers of the Army National Guard of the United States (ARNGUS) and the USAR.  It states an officer who participates in the STRAP incurs an obligation to serve 2 years in the IRR, or 2 years in the Selected Reserve (except on AGR 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 STRAP agreement.  An officer who fails to meet participation requirements during the term of contractual service obligation may be subject to disciplinary action under the Uniform Code of Military Justice or to administrative measures or sanctions, to include recoupment, under applicable regulations.  This regulation also states, in pertinent part, that participation in the New STRAP will terminate on successful completion of the specialized training program, if not terminated earlier.  Early termination of an officer’s participation in the New STRAP must be directed or approved by HQDA (DAPE–MPO) acting on behalf of the Secretary of the Army. Such early termination may only be for one or more of the following reasons:  Participation in the New STRAP may be terminated if an officer fails to complete a specialized training program and either is released from the training program; voluntarily stops training in the specialty designated in the participant’s New STRAP agreement; fails to meet or maintain the eligibility requirements for the New STRAP to include, but are not limited to membership in good standing in the Ready Reserve; attendance in good standing at the specialized course of training; becomes an unsatisfactory participant under the provisions of Army Regulation 135–91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures); or participation may be terminated by HQDA (DAPE–MPO) acting on behalf of the Secretary of the Army, if such an action is in the best interest of the Government.  It should be noted that there is no provision in this regulation that provides an exception to the recoupment requirements to officers who elect discharge after being found medically unfit for retention.

5.  Army Regulation 135-7 also provides, in pertinent part, that discharge of the contractual agreement will not begin until successful completion of the specialized training program. Such discharge will continue uninterrupted until the obligation is fully satisfied. 

6.  Army Regulation 135-7 further provides, in pertinent part, that eligibility for any incentive governed by this regulation requires that an officer, warrant officer, or enlisted Soldier must enter into a contractual obligation to serve satisfactorily for the full term of service specified for an incentive program.  Officer, warrant 
officer, and enlisted applicants for programs administered by this regulation will be required to sign documents which specify the eligibility criteria and the term of service for the desired entitlement or incentive.  Furthermore, the document will contain an acknowledgment that the applicant has been advised of, and understands, the benefits of the program and the conditions which can cause termination and recoupment, if applicable.  The current version of Army Regulation 135-7 provides the same regulatory guidance regarding recoupment of a STRAP debt for failing to complete a STRAP obligation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her request that the recoupment actions by the DFAS for her STRAP debt be terminated should be reconsidered.

2.  The applicant's contention that the ABCMR cited a later regulation than the one in effect at the time was considered.  However, the 

3.  The applicant's counsel's contention that the ABCMR failed to give the applicant any credit against her alleged debt for "good" years she completed in the Reserves as required by regulation was noted.  However, while Army Regulation 135-7 provides for partial loan repayment on a prorated basis under the Health Professionals Loan Repayment Program, it does not provide for prorated credit for any portion of a STRAP obligation completed.  Additionally, his contention that the applicant was discharged at the convenience of the Army was considered, but not found to have any merit.  The applicant was not discharged at the convenience of the Army; she was discharged at her request.  Additionally, as the applicant entered into a STRAP agreement, she knew or should have known under what circumstances she might have to repay her STRAP debt if she failed to complete her obligation.

4.  The applicant's counsel's contention that the applicant denied that she renegotiated her STRAP agreement in 2001 to extend her alleged obligation until 30 October 2008 was also noted.  However, a review of the applicant's official military records revealed that on 29 October 2001, the STRAP Manager at the United States Army Human Resources Command attached a copy of a memorandum which showed that the applicant's request to adjust her STRAP Obligation End Date was approved, and that it was changed from 30 June 2002 to 30 October 2008.  This document would not have been created back in 2001 had the applicant not formally requested that her STRAP Obligation End Date be changed and shows that she initiated renegotiation of her STRAP obligation after a debt was established in July 2000.  Further, while he contended that the applicant should be given credit for 3 years of drilling from 2001 to 2004, there is no provision in Army Regulation 135-7 that provides for prorated credit for any portion of a STRAP obligation completed.

5.  Additionally, the applicant's counsel's contention that the Army's warnings in offering the applicant her choices at the time did not mention, refer, or even hint that a recoupment action was possible or even contemplated was also considered.  However, as previously mentioned, as the applicant entered into a STRAP agreement, she either knew or should have known under what circumstances she might have to repay her STRAP debt if she failed to complete her obligation.  Also, his contention that paragraph 11-3 of Army Regulation 
135-7, dated 15 April 1996, states that an officer is given an obligation of 2 years in the IRR or 2 years in the Selected Reserve for every year in which STRAP funds were received, but it does not state a credited year, a drilling year, or a "good" year for points was considered.  However, paragraph 11-13 of this regulation specifies that a participant who elects to satisfy his or her New STRAP obligation in the Selected Reserve (except on AGR status) must meet participation requirements and serve not less than 12 days of active duty for training (ADT) each year during the period of service required by the agreement, and that a participant who elects to satisfy his or her New STRAP obligation in the IRR must serve not less than 30 days of initial ADT and not less than 5 days of ADT each year thereafter during the period of service required by the agreement. 

6.  The applicant's counsel's contention that there are no grounds for recoupment under paragraphs 11-10 or 11-11 of Army Regulation 135-7 was considered, but found to lack merit.  These paragraphs refer to termination and recoupment from the STRAP specialized training program, and not specifically with recoupment due to failure to complete the full STRAP obligation.  Additionally, his contention that the letter from an official at the United States Army Human Resources Command with the last name of F**e who stated that the applicant's discharge was not a "true" medical discharge because the applicant did not go before a PEB is not credible, as the applicant simply asked for her honorable discharge from the approved list of options given her.  Again however, as the applicant entered into a STRAP agreement, she knew or should have known under what circumstances she might have to repay her STRAP debt if she failed to complete her obligation.  Further, the applicant was not involuntary discharged; she voluntarily (emphasis added) elected discharge prior to the completion of her STRAP obligation.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  When the applicant was discharged on 25 April 2004, her STRAP agreement was terminated uncompleted, which necessitated recoupment action be taken.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20060013274, dated 1 May 2007.




      _________XXX_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20070016389



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ABCMR Record of Proceedings (cont)                                         AR20070016389



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