IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120005905 


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, the Army repay student loans under the Student Loan Repayment Program (SLRP).

2.  The applicant states:

	a.  He had a SLRP with the Tennessee Army National Guard (TNARNG) in exchange for finishing the remainder of his military obligation which was 2 years, 
9 months, and 5 days.  They made a couple of payments before his enlistment was up, but after he was discharged in December 1999 they refused to make any more payments.  He completed 2 additional years of service.  

   b.  In 2011, he was informed that the TNARNG official who refused his loan payments had retired and he should resubmit his claim.  

	c.  He fulfilled the contract and the TNARNG kept denying him payments.  He has been trying to resolve this issue for years and kept getting directed to the same TNARNG official who refused to make the payments.

	d.  He received a denial letter regarding an exception to the policy.  The TNARNG gave him the SLRP in 1994, made payments in 1998/1999, and breached the contract in 2000.  The TNARNG official in charge of making the payments at the time told him she would pay him only if he reenlisted but this wasn't part of the original contract.  He accepted an honorable discharge and she kept refusing to pay over the years unless he joined the TNARNG. 

	e.  He served more than the service listed on his contract and he is having financial difficulties with this loan.   

	f.  He wants to be reimbursed for the payments he has made.

3.  The applicant provides:

* Enlistment contract
* DD Forms 2475 (Department of Defense Repayment Program Annual Repayment 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 complete military records are not available for review.  However, this case is being considered using reconstructed records which primarily consists of the records provided by the applicant.

3.  His U.S. Army Human Resources Command Chronological Statement of Retirement Points shows he had prior active service in the Regular Army and inactive service in the U.S. Army Reserve prior to his enlistment in the ARNG.

4.  His enlistment contract shows he enlisted in the ARNG on 4 February 1994 for a period of 2 years, 9 months, and 5 days.  

5.  His DA Form 5261-4-R (SLRP Addendum) shows he enlisted for the SLRP.  On this form, he acknowledged he had previous military service or he was currently a member of the ARNG or U.S. Army Reserve and that he had contracted to serve 3 or more years in the Selected Reserve.  He also acknowledged that under the SLRP the government would repay a designated portion of any outstanding loan(s) he secured since 1 October 1975 provided the loan was not in default.  Such loan(s) must have been made, insured or guaranteed under Part B of the Higher Education Act of 1965 (Guaranteed Student Loans/Federally Insured Student Loans), or any loan made under Part E of such act (National Direct Student Loans).  This form also states that the amount of the loan(s) (not to exceed $10,000 when totaled) that may be repaid in his case was 15% (a maximum of $1,500) or $500 whichever is greater, plus interest.  This will be paid for each year of satisfactory service performed during this contractual commitment and after the loan or loans were made.  Repayment of any such loan(s) will be made after each complete year of satisfactory service that he performs beginning with the contractual commitment.  

6.  On an unknown date, he was discharged from the TNARNG.    

7.  On 4 April 2011, the National Guard Bureau (NGB) denied the TNARNG's request for exception to policy for payment of the SLRP incentive to the applicant.  The NGB memorandum states:

	a.  in accordance with the applicant's SLRP Addendum, he enlisted in the TNARNG with prior military service.

	b.  According to his enlistment document, he enlisted for 2 years, 9 months, and 5 days.

	c.  In order to be eligible for the SLRP incentive, the Soldier is required to enlist for 3 years.

	d.  Title 31 of U.S. Code, section 3702, only allows for payment of incentives for 6 years after the date such claim was accrued; therefore, the law prohibits the applicant from making a claim against the Government.

	e.  Upon review of all substantiating documentation, it was determined the applicant was not eligible for the $10,000 SLRP incentive and payment of the incentive was denied.

8.  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.   
9.  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.

10.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant enlisted for the SLRP on 4 February 1994.  Although he acknowledged he was contracting to serve 3 or more years in the Selected Reserve on his DA Form 5261-4-R, his enlistment contract shows he enlisted in the ARNG on 4 February 1994 for a period of 2 years, 9 months, and 5 days.

2.  It appears he did not meet the eligibility criteria for the SLRP because he did not enlist in the ARNG for 3 years or more as required in the SLRP Addendum.  

3.  In view of the foregoing, there is no basis for granting the applicant's request.
 
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)                                         AR20120005905



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ABCMR Record of Proceedings (cont)                                         AR20120005905



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