IN THE CASE OF:	  

		BOARD DATE:	 28 April 2015 

		DOCKET NUMBER:  AR20150001824 


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, payment of the Student Loan Repayment Program (SLRP) incentive.

2.  The applicant states:

   a.  He enlisted in the U.S. Army Reserve (USAR) on 16 June 1989 with the SLRP entitlement.  In 1991, he discovered that the Army never paid any amount of money to the loans.  While exhausting every effort to have this entitlement paid, the Department of the Treasury has garnished his wages from income tax refunds each year.  He also continues to pay a collection agency each month on this matter. 

   b.  After enlisting in the USAR and completing all requirements for his SLRP entitlement, he completed all necessary documentation for his loans to be repaid. He never received any documentation from any agency regarding his student loans until the Higher Education Assistance Foundation filed a lawsuit against him in 1991, 2 years after his entitlement.  The USAR Pay Center calculated the Army should have paid $6,268.22 toward his student loans.  Because his entitlement was never received, he continues to pay on these loans due to penalties and incurred interest.  He continues to pay this debt while supporting his wife and children.

   c.  He is currently serving on active duty as a chaplain at the Army Chaplain Center and School.  

3.  The applicant provides copies of the following:

* DA Form 5261-R (Selected Reserve Incentive Program (SRIP) – Enlistment Bonus Agreement)
* DA Form 5261-4-R (SLRP Repayment Addendum)
* DA Form 6435-R (The New GI Bill)
* Orders Number 120-040, dated 15 June 1989
* letter from Buck, Bohn, and Stein, dated 3 October 1991
* Orders Number 227-4, dated 9 December 1991
* DA Form 5121-R (Overseas Tour Election Statement)
* Orders Number 239-006, dated 26 August 1992
* letter from the U.S. Department of Education
* seven letters from the Department of the Treasury
* two letters from and to the Collectcorp Corporation
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 5 March 2007
* DD Form 149 (Application for Correction of Military Record), dated 6 March 2007
* three letters from the Army Review Boards Agency (ARBA)
* email from the USAR Pay Center, dated 9 October 2007
* six DD Forms 2475 (Department of Defense Educational Loan Repayment Program Annual Application)
* two memoranda from the USAR Pay Center, dated 30 October and 7 November 2007
* advisory opinion from the USAR Pay Center and a Student Loan Principle and Interest Computation spreadsheet, dated 11 January 2008
* SunTrust loan payment statement

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 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the USAR on 13 June 1989.  He provided copies of the following:

   a.  A DA Form 5261-R he executed and signed on 13 June 1989 for entitlement under the SRIP.  The addendum shows in:

		(1)  Section III (Acknowledgement) - "My enlistment for a military occupational specialty (MOS) which has been approved for incentive entitlement (Bonus Skill):  52D – Power Generator Equipment Repairer."

		(2)  Section V (Entitlement) - "I am selecting the cash ENLISTMENT BONUS as my enlistment incentive option and am eligible for the bonus indicated," the bonus amount listed was $2,000.00.

   b.  A DA Form 5261-4-R he executed on 13 June 1989 acknowledging his understanding of the obligation and eligibility requirements for entitlement under the SLRP.  The form shows in:

		(1)  Section III (Acknowledgement) -

		"I am a secondary school graduate and I have the required supporting documentation"

		"I am enlisting, reenlisting, or extending for assignment in MOS 52D approved for loan repayment and I currently hold the MOS.  However, if I am enlisting with no previous military service I must meet such MOS qualification upon completion of initial active duty for training (IADT)." 

		(2)  Section IV (Obligation) - "I have no previous military service.  I am enlisting for 8 years in the USAR.  I agree to serve my initial 6 years in the Selected Reserve in the MOS I have indicated above."

		(3)  Section V (Entitlement) - "I understand that loan repayment under the SLRP will apply to me as follows":  The Government will repay a designated portion of any outstanding loan(s) I have secured provided the loan is not in default.

		(4)  Section VII (Termination), in part, - "I understand that my entitlement under the SLRP will be terminated should any of the following conditions occur before the fulfillment of my Selected Reserve contractual agreement":

* move to an ineligible MOS
* separation from the Selected Reserve as an enlisted person for any reason
   
   	(5)  Section VIII (Statement of Understanding) – the signatures and dates of signature of the applicant and the service representative.
   
   c.  A DA Form 6435-R he executed and signed on 13 June 1989 for eligibility to utilize the GI Bill benefits.  

   d.  Orders Number 120-040, dated 15 June 1989, ordering him to initial active duty for training (IADT) with a report date of 8 September 1989.

   e.  A letter, dated 3 October 1991, wherein the law firm of Buck, Bohn, and Stein, in effect, acknowledged that he was the subject of a lawsuit currently filed against him by the Higher Education Assistance Foundation.

   f.  Orders Number 227-4, dated 2 December 1991, enlisting him in the Regular Army (RA) on 12 December 1991 for a 3-year active duty commitment.

   g.  A DA Form 5121, he signed on 6 June 1992 acknowledging a permanent change of station to Germany with dependents for 36 months.

   h.  Orders Number 239-006, dated 26 August 1992, discharging him from the USAR effective 1 December 1991 by reason of his enlistment in the RA.
   
   i.  A letter, dated 30 August 1996, wherein the U.S. Department of Education, in response to his request to lower his garnishment rate, requested his completion, signature, and return of the enclosed "Statement of Financial Status" form.
   
   j.  Seven letters, dated between May 1999 and November 2006, wherein the  Department of the Treasury advised him that his delinquent debt had been referred to them and they had applied all of his Federal income tax refunds to his debt.

   k.  A letter, dated 19 September 2006, wherein the Collectcorp Corporation advised him that the U.S. Department of Education had placed his defaulted student loans account with them.

   l.  A letter, dated 24 October 2006, wherein he advised the Collectcorp Corporation and the ARBA of his dispute of the validity of the debt because he had been advised by the Army and the U. S. Department of Education that 6 of the loans from 1986 to 1988 should have been paid by the Army SLRP.  However, due to the error on the Army's part the loans went into default and were then turned over to a default resolution group.  He had researched the issue and was trying to correct the error.

   m.  A DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 5 March 2007.
   
   n.  A DD Form 149 (Application for Correction of Military Record), dated 6 March 2007.

   o.  A letter, dated 29 March 2007, wherein the ARBA advised him that his application had been assigned and it could be as long as 12 months before he received notification of the decision on his application.

   p.  An email, dated 9 October 2007, wherein the USAR Pay Center advised him that they had never received a request for student loan payments from his former unit.  They had no file on record.  They would need a copy of all the loan agreements and completed DA Forms 2475 for each note, as well as his contracts.

   q.  Six DD Forms 2475 he completed and signed on 12 October 2007 for payments to his student loans.

   r.  A memorandum, dated 30 October 2007, wherein the Army Reserve Montgomery GI Bill/Reserve Educational Assistance Program and SLRP Program Manager advised the ARBA of the following:

		(1)  The applicant was a member of the USAR troop program unit from 13 June 1989 through 1 December 1991.

		(2)  If the applicant had outstanding loans which qualified under the SLRP in accordance with Army Regulation 135-7 (Incentive Programs), chapter 5.1, dated 15 April 1996, that he incurred while a member of the USAR and those loans had not been paid, it was his opinion that he saw no reason not to honor the applicant's request for repayments of those outstanding loans from that period.

		(3)  The applicant would be entitled to only two payments for entitlement years 1990 and 1991.  The official recommended the applicant contact the SLRP Team at the USAR Pay Center, Fort McCoy, WI, for assistance with exact payment amount and processing assistance.

   s.  A memorandum, dated 16 November 2007, wherein the ARBA requested an advisory opinion from USAR Pay Center, Fort McCoy.

   t.  A memorandum, dated 11 January 2008, wherein a staff member of the USAR Pay Center, Fort McCoy advised the ARBA of the following:

		(1)  After reviewing existing records, that office could find no documents or information to indicate that the applicant had ever provided necessary documents for payment of his SLRP.

		(2)  Per ARBA's request they had computed what dollar amounts would had been payable on each of the applicant's enlistment anniversary dates and his separation date.  Due to the lack of supporting documents or verification from the original lender, they computed the payments due based on the information that was available.

		(3)  The applicant enlisted in the USAR on 13 June 1989.  His first anniversary date was 13 June 1990.  At that time, 15 percent (%) of the original principle of his total loans were payable, plus all accrued interest, accrued at 8%, from the dates of the loans to 13 June 1990, since all 7 loans were more than 1 year old.

		(4)  On 13 June 1991, his second anniversary payment was due.  The payment would have included 15% of the original principle plus accrued interest for the period 14 June 1990 to 13 June 1991 computed at 8%.

		(5)  The applicant separated from the USAR on 1 December 1991, terminating his entitlement to the SLRP.  Since the final payment was for a period less than a full year, they determined the payment amount by multiplying each loan by 15% and dividing that figure by 12 to determine a monthly rate.  They then multiplied that amount by 5 to determine 5 months of the principle (14 June 1991 through 1 December 1991).

		(6)  They were enclosing a Student Loan Principle and Interest Computation spreadsheet which reflected the payments which would have been paid if that office would have received the necessary documents at that time.

   u.  A letter, dated 22 January 2008, wherein ARBA advised him that they had obtained an opinion from the USAR Pay Center that appeared to have some favorable responses and provided him the opportunity to submit a rebuttal.

   v.  A letter, dated 12 May 2008, wherein ARBA advised him that he never responded to the advisory opinion.  Before the ABCMR would consider his application he needed to provide further clarification to his student loans, additional documentation, copies of his DD Forms 2475, and the response from the Army Education Office.  The ABCMR also needed proof of payments that he made toward the loans and why did he stop and what was the principal amount of the loans.  It was impossible for the ABCMR to make a fair, impartial, and equitable determination to his application without answers to the foregoing questions.  Therefore, his applicant was returned to him without action and he was advised he could reapply at any time, provided he could clarify his application and furnish the necessary documentation.

   w.  A SunTrust statement, dated 5 December 2014, which shows his current balance was zero and payments had been made to his Stafford loan on the following dates:

* 1 September 1986
* 1 August 1987
* 7 May 1987
* 1 April 1988
* 5 February 1991 (twice)

3.  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% 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. 

4.  Army Regulation 135-7 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.

5.  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.  The available evidence shows the applicant enlisted in the USAR on 13 June 1989 and he executed a DA Form 5261-R for a $2,000.00 enlistment bonus and a DA Form 5261-4-R under the SLRP.  The DA Form 5261-4-R shows he was obligated to serve 6 years in the USAR.  He was discharged from the USAR on 1 December 1991 due to his enlistment in the RA.  

2.  His contentions were carefully considered; however, his enlistment in the RA effective 1 December 1991 would have terminated the SLRP incentive as he had not completed the obligated 6 years in the USAR.

3.  In October and November 2007, the USAR Pay Center advised the applicant and ARBA that they had never received a request for student loan payments from his former unit, they had no file on record, and their office could find no documents or information to indicate that the applicant had ever provided necessary documents for payment of his SLRP.  Also, in 2007 the USAR SLRP Program Manager did not conclusively verify the applicant's entitlement to repayment of his loans under the SLRP and recommended the USAR Pay Center be contacted for assistance.

4.  The ARBA subsequently advised the applicant that he needed to provide further clarification of his student loans, additional documentation, copies of his DD Forms 2475, the response from the Army Education Office, proof of payment he made toward the loans and why he stopped paying, and finally the principal amount of the loans.  

5.  Applications for payments are submitted by the Soldier as stipulated in the SRIP guidelines.  There is no evidence and he did provide sufficient evidence showing a payment was requested by him prior to December 1991.  Further, it is unknown whether his loans were in default during his service in the USAR, which would have precluded payment under the provisions of the SLRP.  Without conclusive and necessary evidentiary documentation showing he was qualified and approved for an SLRP incentive in 1989 and he submitted a request for payment and that payment was denied, he has not shown he was erroneously or unjustly denied payment on education loans with the SLRP incentive.



6.  Notwithstanding the documentation he submitted with his application, none of the requested documentation or his clarification was provided.  If he has evidence to show his entitlement to an approved SLRP incentive and that he met all the criteria for entitlement, he may reapply to this Board.

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)                                         AR20150001824



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ABCMR Record of Proceedings (cont)                                         AR20150001824



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