PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002080975


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		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.

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2. The applicant requests, in effect, payment of his college loans under the Student Loan Repayment Program (SLRP).

3. The applicant states, in effect, that the Army made a contractual agreement with him to repay his student loans. He claims that he would not have joined the Army if the SLRP option had not been offered to him. In support of his application, he provides copies of his enlistment contract, correspondence from the Education Incentives Branch, US Army Total Army Personnel Command (PERSCOM), and from the Army Inspector General (IG).

4. The applicant’s military records show that on 8 September 1999, he enlisted in the Regular Army for 3 years for option 9D (United States Army Officer/Warrant Officer Enlistment Program) for training in military occupational specialty (MOS) 09W (Warrant Officer Flight Training).

5. A DA Form 3286-66 (Statement of Understanding United States Army
Incentive Enlistment Program), Annex C, confirms the option and incentives the applicant contracted for during his enlistment processing. The SLRP is one of the incentives authorized in this Annex and the applicable SLRP terms are listed in paragraph 4.

6. The SLRP provisions of Annex C state, in pertinent part, that the applicant understood he must disenroll from the GI Bill at the time he entered active duty and if he failed to do this he would not be eligible for the SLRP. It also indicated that the applicant understood that the government will repay a designated portion of any loan he incurred that was made, insured or guaranteed under Part B of the Higher Education Act (Guaranteed Student Loan) or any loan under Part E of such act (National Direct Student Loan) after 1 October 1975 and before he enlisted in the Army.

7. Further, Annex C indicated that the applicant’s enlistment for the SLRP ensured him, provided he met and maintained the prescribed prerequisites, that the portion or amount of his student loan that could be repaid was 33 1/3 percent or $1,500, whichever was greater of the unpaid principal balance for each year of service completed. The applicant and the service representative signed this document on the date he entered active duty, 8 September 1999, and there is no indication in this Annex that any question was raised in regard to his eligibility for the SLRP based on his enlistment for warrant officer training that would lead to a commission.

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8. On 14 May 2002, the applicant was advised by an official of the Education Incentives and Counseling Branch, PERSCOM, that the SLRP is an incentive that is only offered to certain specific military occupational specialties (MOS) and is never offered with MOS 09W or 09S, which are warrant officer training options because under the governing Public Law, individuals who receive a commission will not receive the SLRP. Further, if an individual enlisted with the SLRP as part of their contract and later became commissioned, the SLRP would end.

9. On 16 October 2002, the Army IG advised the applicant that, after conducting a thorough review of his inquiry in regard to the determination made on his eligibility for the SLRP, it was determined the proper avenue of redress would be this Board.

10. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA) and the USAR. Chapter 6, section II contains guidance on the Guidance Counselor Processing Phase. It states, in pertinent part, that Guidance Counselors will use the supporting automated systems and updated regulatory material applicable to MOS and available options to counsel all applicants on their enlistment options. It further states that Guidance Counselors will counsel applicants who failed to meet specific qualifications for options for which they applied; and advise them of other available options.

11. Chapter 9 (Enlistment Programs/Options) indicates that these programs/options are designed to merge valid Army requirements with personal desires. 10. Table 9-4 contains guidance on enlistment option program 9C (Bonus/Army College Fund/Loan Repayment Program). It contains specific guidance pertaining to the SLRP and indicates that the government will repay a designated portion of any loan incurred that was made, insured, or guaranteed under part B of the Higher Education Act of 1965 (Guaranteed Student Loan) or any loan under part E of such act (National Direct Student Loan) after 1 October 1975 and before enlistment into the Regular Army.

12. Table 9-4 also provides program processing procedures that require Army Guidance Counselors to accomplish specific counseling and administrative actions in connection with processing members enlisting with the LRP incentive. These actions include ensuring members are disenrolled from the GI Bill; verifying that members have qualifying loans; and advising members of any loan that is not eligible.

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13. The regulation further states that Guidance Counselors are specifically required to confirm they accomplished all the processing procedures by making the appropriate entries in the DD Form 1966 and DA Form 3286-66. This includes a statement regarding the applicant’s eligibility for the SLRP, which includes any factors that may disqualify them from receiving the SLRP benefit, and ensuring that the applicant’s acknowledgement of this fact is also recorded in the remarks section of the DD Form 1966.

14. The SLRP is a Department of the Army enlistment option authorized by
Title 10 of the United States Code, section 2171 (10 USC 2171), which provides the legal authority for the education loan repayment program for enlisted members on active duty in specified military specialties. The law states, in pertinent part, that loans that qualify for repayment are Guaranteed Student Loan/Stafford Loans, National Direct Student Loan/Perkins Loans, William D. Ford Loans, Supplemental Loans for Students, Federally Insured Student Loans (FISL), Parent Loan for Undergraduate Students (PLUS), Auxiliary Loan Assistance for Students (ALAS), and consolidated loans which fall under Title IV, Part B or E of the Higher Education Act of 1965, or William D. Ford Loan. It further specifies that payment of such loans shall be made on the basis of each complete year of service performed as an enlisted member in a military specialty specified by the Army. 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.

15. Title 10, U.S. Code, section 1552, the law which provides for the Board, states that “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.”

CONCLUSIONS:

1. The Board concedes that the applicant’s enlistment for training in an MOS that would ultimately lead to his being commissioned did not meet the SLRP criteria established by law and regulation. However, it finds this is not the overriding factor in this case given the equity considerations and the resultant injustice.

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2. It is clear that the governing law and regulation did not authorize SLRP benefits in connection with an enlistment for training in MOS 09W, as was the case with the applicant. However, Annex C to his enlistment contract clearly established a contractual agreement between the applicant and the Army, which established that the applicant would receive SLRP benefits in connection with his active duty enlistment in MOS 09W.

3. In addition, the governing regulation requires that Army Guidance Counselors verify and counsel applicants on their eligibility for the options they agreed to prior to their departing for active duty. Further, these counselors are obligated to advise applicants on any options they agreed to, but are not eligible for, and on any available alternatives. Finally, counselors must add entries to the enlistment contract and/or associated documents confirming this verification of option and incentive eligibility and/or counseling on ineligibility prior to a member departing for active duty.

4. The evidence of record confirms that a Recruiter authorized the applicant’s enlistment in MOS 09W with the SLRP benefit incentive. Further, the record gives no indication that the responsible Army Guidance Counselor ever verified the applicant’s eligibility for SLRP benefits during the applicant’s initial contracting process or prior to the applicant departing for active duty. In fact, the record shows that the applicant was authorized to ship for active duty by the responsible Army Guidance Counselor with an enlistment contract, Annex C, in force that authorized him SLRP benefits.

5. In view of the facts of this case, the Board finds the applicant entered into an erroneous contract with the Army, based on the failure of Recruiting personnel to follow established regulatory guidelines in connection with this enlistment processing, through no fault of his own. Given the failure on the part of government officials to follow its own regulations during the applicant’s enlistment processing, the Board concludes that it would be appropriate to rectify the resultant injustice at this time. Therefore, the Board finds that it would serve the interest of justice and equity to provide the applicant the SLRP benefits the Army committed to in his enlistment contract at this time.

6. In doing so, the applicant’s military records may be corrected to show his
DA Form 3286-66 was amended to include the sentence “If SLRP benefits are authorized by the official processing you for enlistment, and the government fails to verify the applicant’s eligibility for receipt of these benefits prior to shipment for active duty, the Army Board for Correction of Military Records may pay the loan(s), at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.” This would allow the Board to invoke that provision and pay the applicant the amount that would have been paid for the student loan(s) verified at the time of his enlistment.

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

RECOMMENDATION:

1. That the applicant’s DA Form 3286-66, Statement of Understanding, US Army Incentive Enlistment Program, be amended to include the sentence “If SLRP benefits were authorized by the official processing you for enlistment and the government fails to verify that the applicant was eligible for these benefits under the provisions of Title 10 of the United States Code, section 2171, and such failure results in nonpayment of the loan(s) authorized for repayment under the SLRP terms of the enlistment contract or the repayment or default of the loan(s), the Army Board for Correction of Military Records may pay the loan(s), at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.”

2. That as a result of the above correction the Defense Finance and Accounting Service (DFAS) shall remit payment to the applicant of the total amount of the loans authorized for repayment under the terms of Annex C of the applicant’s enlistment contract to which he is entitled as a result of this correction at the appropriate rate and time. The applicant will submit the appropriate evidence (promissory notes, etc.) to the DFAS to determine the amount due, if required.

BOARD VOTE:

__RJW__ __WDP _ __ LMB__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ Raymond J. Wagner ._
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080975
SUFFIX
RECON
DATE BOARDED	2003/03/04
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 1026	112.1200
2.
3.
4.
5.
6.