RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             FEBRUARY 12, 2004
	DOCKET NUMBER:    AR2003089787

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Robert J. Osborn		Member	
	Mr. Lester Echols		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that her records be corrected by changing the orders that transferred her to the Individual Ready Reserve (IRR) from "Unsatisfactory Participation" to "Voluntary."  In addition, she requests the cancellation of her debt to the government that resulted from the improper transfer.

2.  The applicant states, in effect, that she enlisted in the United States Army Reserve (USAR) on 16 November 1987 for a period of 8 years under the Student Loan Repayment Program (SLRP).  In May 1991, she was attached to a unit in a unit supply position and for the 4 months she drilled with the unit, she never met the supply sergeant or saw the supply room.  She goes on to state that she simply sat around and did nothing during drills.  Being disappointed with the experience, she did not attend drills in September 1991 and was called by the unit first sergeant (1SG).  After a lengthy discussion she was informed that there were no open positions in the area and she requested to be transferred to the IRR.  She was informed that she would be notified if she needed to sign anything, which was her last contact with anyone in the unit.  A year later she received orders transferring her to the IRR effective 18 December 1992 due to unsatisfactory participation.  She continues by stating that she never received any prior notification of unsatisfactory participation; however, she had contacted a recruiter to find her a new unit and after many months and several letters to her congressional representative, she was transferred from the IRR to a new unit in August 1993.  Upon arrival in her new unit, her reenlistment noncommissioned officer (NCO) informed her that she needed to reenlist in order to reinstate her entitlements to the GI Bill and SLRP.  Accordingly, she reenlisted for a period of 5 years to fulfill her obligation.  She further states that she received GI Bill payments for the entire time she was eligible and requested her first loan repayment request starting in 1995 and did so every year thereafter with no problems.  In May 2000, her request was denied and proof of eligibility was requested.  In July 2000, she was informed that she was never eligible because she had 12 unexcused absences and was declared an unsatisfactory participant.  She continues by stating that she reenlisted for a period of 6 years on 12 December 1998 and continues to have a very positive experience since her return in 1993.  She is not asking that she be granted any further benefits or repayment of funds collected to date, but simply that her records show a voluntary transfer to the IRR and cancellation of further debt collection.

3.  The applicant provides a copy of her request to have her debt forgiven.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in Milwaukee, Wisconsin, in the USAR, in the pay grade of E-3 on 16 November 1987, for a period of 8 years, training as a unit supply specialist and enrollment in the SLRP.

2.  On 9 February 1991, orders were published which reassigned the applicant from a USAR Military Police Battalion in San Jose, California, to a Civil Affairs Brigade in Columbia, South Carolina, effective 30 November 1990.

3.  On 28 February 1991, orders were published reassigning her to a USAR Command at Fort Jackson, South Carolina, effective 1 March 1990.

4.  Orders were published on 5 May 1991 reassigning the applicant back to the Civil Affairs Brigade effective 6 May 1991.  The orders do not specify assignment to any position or military occupational specialty (MOS).

5.  On 28 May 1992, orders were published which involuntarily transferred the applicant to the USAR Control Group (Annual Training) effective 18 December 1992, due to unsatisfactory participation.

6.  Orders were published on 31 August 1993 transferring the applicant from the USAR Control Group (Annual Training) to a USAR Infantry Battalion in Columbia, South Carolina, effective 30 August 1993, in MOS 76Y10.

7.  The applicant reenlisted in Columbia, South Carolina, on 16 January 1994 for a period of 5 years and on 12 December 1998, she reenlisted in Madison, Wisconsin, for a period of 6 years.

8.  On 24 May 2000, a memorandum was dispatched to the applicant's commander from the SLRP Team at Fort McCoy, Wisconsin, which returned the applicant's SLRP payment request without action.  The commander was informed that the applicant entered into a SLRP agreement on 16 November 1987; however, information on her pay account showed that her date of gain into the USAR was 30 August 1993, which is indicative that a separation occurred.  The memorandum went on to state that unless the applicant could document the time between 1987 and 1993, she would be required to repay SLRP payments already made in the amount of $11,668.31 in principal and interest.  The unit provided a chronological listing of the applicant's assignments.

9.  On 27 June 2000, officials at Fort McCoy notified the commander that the applicant was required to extend her original enlistment within 30 days of returning to the Reserves in order to keep her SLRP contract valid.

10.  The applicant dispatched a letter to her commander on 21 August 2000, requesting his assistance in regards to her SLRP payments and the fact that all previous payments had now been determined to be erroneous, which resulted in being in debt to the government, simply because she followed her reenlistment NCO's advice and reenlisted instead of extending.  She further stated that she would understand if her entitlement was discontinued, but did not believe that she should have to repay her previous loan payments.

11.  On 2 October 2000, the applicant's commander submitted a request for an exception to policy on behalf of the applicant in which he recommended that her SLRP benefit be reinstated and that her debt be cancelled.  The request was forwarded to the Regional Support Command (RSC) which favorably indorsed it and forwarded it to the Reserve Command in Fort McPherson, Georgia. 

12.  On 8 January 2001, the Reserve Command disapproved the request for an exception to policy contending that her unsatisfactory participation terminated her entitlement to the SLRP benefits and that her reenlistment was considered to be defective.  The applicant was advised to apply to this Board for redress.

13.  A review of the applicant's records shows no indication that the applicant was ever notified that she was being transferred to the IRR due to unsatisfactory participation.  It is noted however, that the orders were published 6 months prior to the effective date.

14.  A review of the applicant's SLRP addendum to her enlistment contract indicates that she acknowledged that she understood that her enrollment in the SLRP would be terminated for unsatisfactory participation or for her failure to extend her term of service for an authorized period on nonavailability. 

15.  Army Regulation 135-91 defines USAR service obligations, methods of fulfillment, participation requirements and enforcement procedures.  It provides, in pertinent part, that in the process of documenting unexcused absences, commanders will prepare a prescribed letter of instruction – notice of unexcused absence that will be delivered to the individual soldier either in person or by certified mail or restricted delivery, with return receipt requested.  Copies of each notice will be placed in the individual's military personnel records jacket (MPRJ).  The return receipt or the notification that the mail could not be delivered or was refused will be placed along with the unopened notice/letter in the MPRJ or a copy of receipt of notification when hand delivered will be placed in the MPRJ.  Enlisted personnel who are declared unsatisfactory participants may be transferred to the IRR.

DISCUSSION AND CONCLUSIONS:

1.  The Board has noted the applicant's contention that she requested to be transferred to the IRR and that she was unjustly considered an unsatisfactory participant and finds that it has merit.  While the applicant admitted that she did not attend drills for 1 month and discussed her options with her 1SG, who informed her that she would be contacted if anything was needed to accomplish her transfer, such does not necessarily constitute unsatisfactory performance. 

2.  The applicant's orders transferring her to the IRR were published 6 months prior to the effective date and her records are void of any indication that she was notified that she was being transferred due to unsatisfactory participation.

3.  Most telling in this case is the fact that 8 months after being transferred to the IRR, she obtained a position in another unit in the same city.  While she was required to extend her enlistment to preserve her SLRP benefits, she instead reenlisted for a period of 5 years and continued to satisfactorily serve and receive her SLRP benefits for a period of 5 years before being informed that they had been paid erroneously and that she was now in debt to the government.

4.  All indications in the available records indicate that the applicant has attempted to act in good faith to honor her commitment to the USAR; however, it appears that she was unjustly declared an unsatisfactory participant without prior notification and was transferred to the IRR.  Therefore, the Board finds that it would be in the interest of justice to correct her records to show that as an exception to policy, she was voluntary transferred to the IRR on 18 December 1992 and that she extended her enlistment for a period of 5 years (vice reenlisting for 5 years), that her debt be declared void and not valid, that any funds collected from her for erroneous SLRP payments be refunded to her and that her SLRP benefits be reinstated. 

BOARD VOTE:

Jl ______  rjo   _____  le ______  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as an exception to policy:

a.  by showing that she was transferred to the USAR Control Group (Annual Training) on 18 December 1992, based on her voluntary request instead of unsatisfactory participation, as currently reflected.

b.  by voiding her reenlistment on 16 January 1994 and changing her records to show that she extended her enlistment on 16 January 1994, for a period of 5 years for the purpose of maintaining SLRP eligibility and:

c.  by declaring her debt invalid and void, by returning any funds collected for erroneous SLRP payments and by reinstating her SLRP benefits.

		____Joann Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089787	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040212	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.  135.0300	335 Change of Status	
2.		
3.		
4.		
5.		
6.