IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080011170 


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, reinstatement of his entitlement to Student Loan Repayment Program (SLRP) and Selective Reserve Montgomery G.I Bill (MGIB) benefits.

2.  The applicant states, in effect, that an Army recruiter obtained approval from a unit administrator for the applicant to be excused from drill weekends in order for him to attend a college course.  However, he was not excused from the unit drills and lost his SLRP and MGIB benefits for unsatisfactory participation. 

3.  The applicant provides a self-authored statement, third-party statement, and  Congressional letter in support of his application.  

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.  The applicant's record shows he enlist into the United States Army Reserve (USAR) for a period of 8 years on 14 January 1993.  

3.  The applicant's Official Military Personnel File (OMPF) contains a Certificate and Acknowledgement of Service Requirement for Individuals Enlisting, Reenlisting, or Transferring, into Troop Program Units (TPU) of the USAR 
(DA Form 3540), dated 14 January 1993, which was completed during his enlistment processing.  In this document, the applicant acknowledged that he understood he would be required to perform satisfactory participation in the Ready Reserve for a period of 8 years, 6 of which was to be performed in the Selected Reserve.  He further acknowledged that he understood that if he failed to participate satisfactorily, he could be declared an unsatisfactory participant and could be subject to removal from the unit and transfer to the Individual Ready Reserve (IRR) under other than honorable conditions.

4.  The DA Form 3540 confirms the applicant was briefed on the educational entitlements of the MGIB, SLRP and Cash Bonus of $2000.00 incentives he was receiving for his enlistment, and that he understood that he would incur an 8 year service obligation, 6 years in the Selected Reserve (Troop Program Unit (TPU)) and 2 years in the IRR.  The applicant authenticated this document with his signature.

5.  The applicant's record contains a SLRP Addendum, in which he acknowledged that he understood that he was contracting for an initial Selected Reserve term of service of at least 6 years with a concurrent contractual and statutory military service obligation of 8 years in military occupational specialty (MOS) 57E, which Headquarters Department of Army (HQDA) had approved for a maximum of $10,000 in SLRP repayments.  

6.  A Personnel Action (DA Form 4187), dated 10 April 1996, on file in the applicant’s record shows he was reduced to the rank of private first class (PFC) based on his unsatisfactory participation.  

7.  The applicant's record also contains 89th Regional Support Command (RSC) Orders Number 178-19, dated 26 June 1996, which reassigned the applicant from the 1896th Medical Detachment, his TPU, to the IRR, by reason of unsatisfactory participation, effective 26 June 1995.  It also contains 89th RSC Orders Number 133-15, dated 13 May 1997, which released the applicant from 

the 6025th Garrison, a TPU, and reassigned him to the IRR, by reason of unsatisfactory participation.

8.  United States Army Human Resources Command (HRC), St. Louis, MO, Orders D-02-404804, dated 11 February 2004, honorably discharged the applicant from the USAR Control Group (Reinforcement) with an effective date of 11 February 2004.  

9.  The applicant provides a letter from an Army Reserve Recruiter, dated
4 September 1996.  In this statement, the Army Reserve Recruiter states that during the time frame the applicant was receiving "U's" for not attending his unit drills, he had personally called the applicant's unit (399th Military Intelligence Battalion) to inform the unit administrator that the college course the applicant was enrolled in required him to attend class on Saturdays.  He states he asked that the applicant be excused from unit drills on those days he was attending class, and that he be allowed to make the drills up.  The Army Recruiter states he was informed by the unit administrator that it would not be problem since it would not be a permanent conflict.  However, during the first week of March 1996, the applicant received a letter from his unit informing him that he was being reduced in rank and placed in the IRR for unsatisfactory performance.  He claims he again called to the unit and was told that it was a mistake and that it would be taken care of and he informed the applicant to personally go to his unit and try to rectify the problem.  He concluded by stating that it was not the fault of the applicant that he was removed from his TPU and transferred to the IRR, but rather the fault of the unit for either failing to fill out the correct paperwork or someone telling him and the applicant something they did not have the authority to say.  

10.  Army Regulation 135-7 (Incentive Program) prescribes policies and procedures for the administration of the Army National Guard (ARNGUS) and the USAR incentive programs.  Paragraph 5-1.6 provides guidance on the SLRP.  It states, in pertinent part, that when a member becomes an unsatisfactory participant, he loses entitlement to SLRP benefits.  

11.  Paragraph 8-10 of the same regulation contains guidance on the MGIB.  It states, in pertinent part, that entitlement to the Selective Reserve MGIB will terminate if an enrolled Soldier is declared an unsatisfactory participant.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SLRP and MGIB benefits should be reinstated was carefully considered.  

2.  The evidence of record confirms that during his enlistment processing the applicant acknowledged that he understood that he would be required to satisfactorily participate in the Selected Reserve for 6 years of his 8-year enlistment, and that if he failed to participate satisfactorily, he could be declared an unsatisfactory participant and could be subject to removal from the unit and transfer to the Individual Ready Reserve.  The record shows he was declared an unsatisfactory participant, which resulted in his transfer to the IRR prior to his completion of his 6 year Selective Reserve commitment and as a result lost his entitlement to SLRP and MGIB benefits.  

3.  The applicant should have received several notices of his unsatisfactory participation, and in the absence to the contrary it is presumed that the required notices were properly sent to him.  The applicant does not sufficiently explain why he did not contact his unit concerning rescheduling his drills.  Notwithstanding the third-party letter provided by the applicant, absent any evidence of record corroborating the information in the statement, or that shows the applicant reasonably attempted to resolve his unsatisfactory participant status through his chain of command or through an inspector general request, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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.

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 for correction of the records of the individual concerned.




      _______ _ x  _______   ___
               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)                                         AR20080011170



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011170


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1