PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:            3 April 2001                  
	DOCKET NUMBER:   AR2000050617

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison 		Chairperson	
	Mr. Thomas F. Baxter 		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that she be reimbursed $2,191.97, which was returned to the Defense Finance and Accounting Service (DFAS) as an overpayment from a student loan.

3.  The applicant states that she had paid the money into the loan, but it was returned to DFAS and she believes she is entitled to it.  She indicates she had previously received a $894.72 refund from another loan.

4.  The applicant’s military records show that on 26 February 1996, she enlisted in the Army Reserve Delayed Enlistment Program, in pay grade E-4. 

5.  On 7 January 1997, she enlisted in the Regular Army, in pay grade E-4, with options for military occupational specialty (MOS) 35Y (Integrated Family of Test Equipment Operator/Maintenance).  She enrolled in the Student Loan Repayment Program (SLRP) with two qualifying loans.  She completed her required training and was awarded MOS 35Y.

6.  Throughout a portion of the life of the loans, she made duplicate payments resulting in overpayments of $2,191.97 and $894.72.  The $894.72 overpayment was remitted directly to the applicant.  The $2,191.97 overpayment was forwarded to the applicant at a former address, but returned because it was undeliverable.  Then the check was sent to Defense Finance and Accounting Service (DFAS), payable to the applicant.  DFAS deposited the latter into a Government account.

7.  Subsequently, DFAS paid the full loans, as contracted; however, the overpayment with interest has been withheld.  

8.  On 22 January 2001, the Commander, Total Army Personnel Command (PERSCOM) opined that there are no provisions or guidance that would allow the Department of the Army to reimburse an individual for payments already made and recommended denial of the request.  Further, the Army does not assume an individual’s loan; loan status is the borrower’s responsibility.  The borrower is responsible for securing a deferment or forbearance, which would stop payment from coming due.

9.  On 2 February 2001, the PERSCOM opinion was forwarded to the individual concerned for acknowledgment/rebuttal.  She did not respond.

CONCLUSIONS:

1.  The Board concludes that if the lender had refunded the overpayment of $2,191.97 to DFAS, with that check payable to DFAS, the applicant would not have any legal right to the refund, except to pursue a claim of equity.

2.  However, the lender sent the check to DFAS, payable to the applicant.  In this instance the DFAS had no legal authority to cash the check for the Government’s benefit, as the check was intended for the applicant.

3.  Notwithstanding the PERSCOM opinion, the applicant fulfilled her part of the enlistment contract, and the Army should honor its obligation by paying the full amount of her loans.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by reimbursing the individual concerned for the check DFAS improperly cashed in the amount of $2,191.97.

BOARD VOTE:  

_tfb      __  __jtm__    __wtm  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		       Walter T. Morrison
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000050617	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010403	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	128	
2.		
3.		
4.		
5.		
6.