PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 03 JUNE 2003
         DOCKET NUMBER: AR2002081923


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Jennifer L. Prater		Member
Mr. Paul M. Smith		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. In effect, the applicant requests that the Army either pay her student loan, as so indicated in her enlistment contract, or provide for her enrollment in the Montgomery GI Bill (MGIB).

3. The applicant states that her contract indicated that her student loan would be paid. That was one of the factors whereby she decided not to enroll in the MGIB, and was a reason she enlisted.

4. The applicant enlisted in the Army Reserve delayed entry program (DEP) for 8 years on 23 July 2001. She was discharged from that program upon her enlistment in the Regular Army for 4 years on 23 October 2001. Her Record of Military Processing (DD Form 1966/1) shows that she enlisted for the Loan Repayment Program (Code B, in position 1 of items 17e and 18k of that form).

5. Item 32a, Specific Option/Program Enlisted For (Completed by Guidance Counselor, MEPS Liaison NCO, etc., as specified by sponsoring service) of the applicant's DD Form 1966/3 shows that, among other programs, she also enlisted for the Student Loan Repayment Program.

6. USAREC (United States Army Recruiting Command) Form 1150-R-E, Addendum to DD Form 1966 Series, shows that she enlisted for the Hi Grad LRP incentive. She placed her initials by the block, "I understand that under the Army's Student Loan Repayment Program, the Army will not repay student loans in excess of $65,000 regardless of the amount of my student loans. … I understand that I must bring copies of ALL my student-loan promissory notes when I report to the MEPS for my active duty ship date." She and her guidance counselor both signed the form on 23 July 2001.

7. The applicant, on 23 July 2001, also completed a statement of enlistment acknowledging that she would be enlisted under the provisions of the training enlistment program and the incentive enlistment program, with the words, "Student Loan Repayment," written in pen and ink. Both the applicant and guidance counselor signed that statement.

8. The applicant completed another form (DA Form 3286-66) in which she stated that she acknowledged and understood that she was enlisted for the Loan Repayment Program Hi Grad Bonus. She stated that she understood that the bonus amount was $4,000.00. That form contained a number of statements, to include, "If the incentive … is for the … LOAN REPAYMENT PROGRAM (LRP), I understand that I must DISENROLL from the GI Bill in order to qualify for the program.…If I fail to complete the disenrollment portion of the DD Form 2366,

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I will not be eligible for the LRP and will become automatically enrolled in the GI Bill," and, "I understand that under the program (LRP) that the government will repay a designated portion of any loan I incurred that was made, insured or guaranteed, under Part B of the Higher Education Act of 1975 (Guaranteed Student Loan) or any loan under Part E of such act … after1 October 1975 and before I enlist into the Regular Army." She and her guidance counselor signed that form.

9. The applicant and her guidance counselor, on 23 July 2001, both signed a form, DA Form 3286-7, in which the applicant indicated by her initials in the appropriate spaces, that she did not enlist for the MGIB program and the Army College Fund program, but that she did enlist for the LRP.

10. On 23 July 2001 the applicant completed DD Form 2366, stating that she did not desire to participate in the MGIB. Both she and her guidance counselor signed that form.

11. On 23 September 2002 the Total Army Personnel Command (PERSCOM) informed the applicant that her loan did not qualify for repayment under the LRP, in that it was a GATE/Private Loan, which was not made, insured or guaranteed under Title IV, Part B, D, or E of the Higher Education Act. That command also informed her that loans eligible for repayment had to be made, insured or guaranteed prior to entry on active duty, and that payment toward loans that did not qualify under the LRP would be in violation of the law governing the program There were no exceptions to the law. A copy of her attached DD Form 2475 (DOD Educational Loan Repayment Program (LRP) Annual Application), certified by the loan representative on 3 September 2002, shows that the applicant's loan was a GATE/Private loan with an unpaid principal balance of $4,829.31.

12. The LRP is an educational enlistment incentive, which provides for payment of a percentage of the unpaid principal of eligible student loans for each year of active duty a soldier completes. Title 10, United States Code, section 2171, limits loans that are eligible for repayment under the LRP to those made, insured, or guaranteed under the Higher Education Act of 1965.

13. The MGIB, as outlined in Title 38, United States Code, chapter 30, section 1411(b), provides for soldiers who entered the service after 30 June l985, to be automatically enrolled into the MGIB and to contribute $1,200.00 during their first 12 months service, which is nonrefundable. After completion of their service obligation, he or she is entitled to receive up to $300.00 per month educational benefits for 36 months. The program is administered by the Department of Veterans Affairs (VA).

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14. Army Regulation 601-210, chapter 6, specifies what forms are to be completed when a person enlists in the Army. Those forms include the DA Form 3286 and the DA Form 1966 which show which options have been selected by the person enlisting. Only the options selected on that form are considered valid and will be honored by the Government.

CONCLUSIONS:

1. Although the Board does acknowledge that the applicant’s enlistment contract indicates that her enlistment incentives included the LRP incentive, the applicant failed to acknowledge that her enlistment contract further clarified the provisions under which a student loan could be repaid. The Board notes that the applicant authenticated that portion of her enlistment contract by her signature on the DA Form 3286-66

2. While it is unfortunate that the applicant may not have understood that her student loans were not payable under the LRP, the Board does not have the authority to violate public law. To pay the applicant’s loans, in the absences of any error or injustice, would be in direct contravention of Title 10, United States Code, section 2171. Consequently, her request that her student loans be repaid is not granted.

3. Nonetheless, the applicant, in good faith, declined to enroll in the MGIB because of her enlistment in the LRP, with the understanding that her student loans would be repaid.

4. Therefore, the applicant should be provided the opportunity to enroll in the MGIB by completing a DD Form 2366, Montgomery GI Bill Act of 1984. Should the applicant enroll in the MGIB, the DD Form 2366 that she completed on 23 July 2001 is determined to be null and void and of no force or effect, and should be expunged from her Official Military Personnel File (OMPF).

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

RECOMMENDATION:

1. That the applicant be afforded the opportunity to enroll in the MGIB by completing a DD Form 2366. Subsequent to her completion of that form, the DD Form 2366 that she completed on 23 July 2001 is null and void and of no force or effect and should be expunged from her OMPF.

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2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___JHL__ ___JLP__ __PMS__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Joann H. Langston_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081923
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030603
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	112.00
2.
3.
4.
5.
6.