IN THE CASE OF: 

		BOARD DATE:	    10 January 2013

		DOCKET NUMBER:  AR20120014398 


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 reconsideration of his earlier request for payment of his final Health Professionals Loan Repayment (HPLR) in the amount of $10,000.00 and to personally appear before the Army Board for Correction of Military Records (ABCMR).

2.  The applicant states:

	a.  The Board basically reviewed his contractual agreement and confirmed he was paid $10,000.00 too early, which was properly collected.  This is not in dispute.  The early payment was the Army's error, not his.  He was paid early but is now eligible for the $10,000.00 payment.  He has not been paid because he no longer has student loans.

	b.  He specifically wants the Board to respond to his request for exception to policy of Army Regulation 135-7 (Incentive Programs) which states that HPLR payments can only be applied to an outstanding loan.

	c.   His commanding officers have endorsed and recommended approval of the exception to policy of Army Regulation 135-7.

	d.  Since he has no outstanding loans, he is requesting payment of the $10,000.00 to himself.

	e.  On 9 June 2004 an unsolicited payment of $50,000.00 was paid to his loan holder from the Army.  At this time he was entitled to only $40,000.00 in HPLR.  A representative from the HPLR office informed him this payment was correct but the overpayment was in error.  His case rests on the following fact that occurred as a result of the error listed above.

	f.  After 9 June 2004 and before 3 May 2005, his student loan was paid off in full and closed.  He would not have knowingly paid off this loan if he knew the Army was going to collect $10,000.00 at a later time.

	g.  On 3 May 2005, he received notification of early HPLR overpayment of $10,000.00 from the U.S. Army Reserve (USAR) Pay Center and this money was collected.

	h.  He requests a formal hearing so he may present the facts in person.

3.  The applicant provides the following documents that were previously submitted with his original application:

* letter from the USAR Pay Center, Fort McCoy, WI, dated 3 May 2005
* request for endorsement of his request for exception to policy to Army Regulation 135-7, dated 26 April 2009
* endorsement for exception to policy to Army Regulation 135-7, dated 6 May 2009

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 AR20100025671 on 23 June 2011.

2.  The applicant's argument that the Board did not respond to his request for exception to policy of Army Regulation 135-7 is a new argument that will be considered by the Board.

3.  On 2 May 2000, he was commissioned in the USAR as a captain, Medical Corps (MC), and he signed a $50,000.00 HPLR contract payable in two $20,000.00 increments and one $10,000.00 increment.

4.  He was assigned to the Selected Reserve (SELRES) on 12 July 2001.  He entered the Specialized Training Assistance Program (STRAP) obligation period on 12 July 2003.

5.  On an unknown date, he apparently received $50,000.00 for his HPLR.

6.  On 3 May 2005, the USAR Pay Center informed him:

* he had been overpaid for his HPLR
* while he signed his HPLR contract on 2 May 2000, it was not effective until he was assigned to the SELRES on 12 July 2001
* he was only in the SELRES for 2 years before entering the STRAP obligation period on 12 July 2003
* because he was supposed to receive $20,000.00 a year for the first 2 years of the contract and $10,000.00 for the last year, he was only entitled to $40,000.00
* since he was given $50,000, he owed the government $10,000.00

7.  On 6 May 2009, his commanding officer recommended approval of the applicant's request for exception to policy to Army Regulation 135-7 and payment of the $10,000.00 HPLR directly to the applicant.  The commander stated, “…This HPLR payment would have been applied to his student loan account if it was not already closed from the erroneous overpayment in June 2004.  The $10,000 will replace the money recaptured from [the applicant] in May 2005.”

8.  On 28 November 2012, an advisory opinion was obtained from the Chief, Health Services Division, U.S. Army Human Resources Command, Fort Knox, KY, in the processing of this case who states:

	a.  The applicant's petition requesting reconsideration to be compensated $10,000.00 for a collection action based upon an overpayment of his HPLR should be approved; he meets all requirements for the payment.

	b.  His financial institution was paid $50,000.00 toward his student loan when he was in his STRAP obligatory status.  A portion of the payment, $10,000.00 was not authorized due to his obligatory status in accordance with Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) and Defense Finance and Accounting Service (DFAS) collected the money from the officer.  Since DFAS cannot collect from a financial institution, DFAS collected from the officer, thus leaving a zero balance on the officer's student loan.  Once the officer was eligible for loan repayment, the loan did not exist.

	c.  According to Army Regulation 621-202, chapter 3-5, the Army will not make payments to Soldiers and will not reimburse Soldiers for payment made by them or any individual.  The only office that can authorize a payment directly to the Soldier for payments through the Student Loan Repayment Program is the ABCMR.  Once the ABCMR authorized the payment or reimbursement, DFAS will do an offline payment to the officer.

9.  On 5 December 2012, the advisory opinion was furnished to the applicant for comment.  The applicant did not respond.

10.  Army Regulation 135-7 states the HPLR Program is designed to repay designated loans secured by eligible commissioned officers of the MC and Army Nurse Corps assigned to the SELRES.  Paragraph 7-2 states that effective 1 July 1986 the HPLR Program provides for the repayment by the government of outstanding loan(s) that were secured after 1 October 1975.  There is no provision for repayment of outstanding loans to individuals.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  His request for a personal appearance hearing was carefully considered.  An applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision in his case.  Therefore, a personal appearance hearing is not warranted.

2.  The applicant is requesting payment of $10,000.00 be made directly to him for a collection action based upon an overpayment of his HPLR.

3.  The advisory official points out:

* his financial institution was paid $50,000.00 toward his student loan when he was in his STRAP obligatory status
* a portion of the payment, $10,000.00, was not authorized due to his obligatory status
* DFAS collected the money from the applicant, thus leaving a zero balance on his student loan
* Once he was eligible for loan repayment, the loan did not exist

4.  However, the applicant’s commander stated that the additional $10,000.00 HPLR payment would have been applied to his student loan account if it was not already closed from the erroneous overpayment in June 2004 and that the $10,000 would replace the money recaptured from the applicant in May 2005.
5.  The commander’s statement indicates that the applicant owed $50,000 in student loans.  It appears that if the Army had not (erroneously) paid off his loan with that unauthorized $10,000.00, then the applicant would have had to pay $10,000.00 to his financial institution.  It appears that he would have owed $10,000.00 one way or another, either to the financial institution to pay off his loan or to the government, who paid it off for him.  

6.  The available evidence, combined with the applicant’s statement and his commander’s statement, indicates that to provide the applicant the requested $10,000.00 as an exception to the policy of Army Regulation 135-7 would be a windfall, and he provides insufficient evidence to show otherwise.

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 AR20100025671 dated 23 June 2011.




      _______ _ 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)                                         AR20120014398



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ABCMR Record of Proceedings (cont)                                         AR20120014398



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