PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: JANUARY 8, 2004
         DOCKET NUMBER: AR2002082862


         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
Ms. Maria C. Sanchez		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Ms. Linda M. Barker		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.

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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 he enlisted with the understanding from his recruiter and career counselor that his student loans will be paid. He claims that if he had known that his non-federal uninsured student loans did not fall under the SLRP, he would have taken a commission as an officer instead of enlisting. In support of his application, he provides copies of his enlistment contract, his promissory notes, a personal statement and correspondence from US Total Army Personnel Command (PERSCOM) and Iowa Student Loan Liquidity Corporation.

4. The applicant’s military records show that on 10 July 2001, he enlisted into the US Army Reserve (USAR) under the Delayed Entry Program. He was discharged from the USAR on 4 January 2002 and enlisted into the Regular Army for a period of 3 years for options 9B (US Army Station/Unit/Command/Area Enlistment Program) and 9C (US Army Incentive Enlistment Program with an enlistment bonus and SLRP) for training in military occupational specialty (MOS) 11X10 (Infantry trainee).

5. A DA Form 3286-66 (Statement of Understanding United States Army Incentive Enlistment Program), Annex D, 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 D 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 D 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 of each year of service completed. The applicant and the service representative signed this document on the date he entered active duty, 4 January 2002, and there is no indication in this Annex that any question was raised in regard to his eligibility for the SLRP.

8. On 10 October 2002, the applicant was informed by Iowa Student Loan Liquidity Corporation that his Iowa Student Loan Partnership loans did not fall under the Army’s repayment terms.

9. On 15 November 2002, the applicant was advised by an official of the Education Incentives and Counseling Branch, PERSCOM, that his student loans from the Iowa Student Loan Liquidity Corporation did not qualify for repayment under the SLRP. Also, it indicated that his loans are a Partnership Loan, which is not made, insured or guaranteed under Title IV, Part B, D, or E of the Higher Education Act.

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, 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 available options to counsel all applicants on their enlistment options. It further states that Guidance Counselors will counsel applicants who fail 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. 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.

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. In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – Alexandria, Virginia (HRC-ALEX), Education Incentives Counseling Branch. The opinion opines that the applicant's Partnership Loan in the amount of $43,352.00 does not qualify under the SLRP; however, his loans from the Sallie Mae Servicing Corporation and the U.S. Department of Education do qualify and payments are being authorized. The opinion also states that should the Board decide to grant compensation, the payment should be made directly to the soldier. The opinion was provided to the applicant for comment and to date no reply has been received.

15. 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 Loan/Stafford Loans, National Direct Student Loans/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.

16. 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 student loans 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.

2. It is clear that the governing law and regulation did not authorize SLRP benefits in connection to his Partnership Loans, which are not insured or guaranteed, as was the case with the applicant. However, Annex D of his enlistment contract clearly established a contractual agreement between the applicant and the Army, which established that the applicant would receive SLRP benefits.

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 the 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 contract 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 D, in force that authorized him SLRP benefits.

5. In view of the facts of this case, the Board finds that 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 the 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 all of the Department of the Army records related to this case be corrected by amending the applicant’s DA Form 3286-66, Statement of Understanding, US Army Incentive Enlistment Program, 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 D 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:

kan_____ lmb_____ jtm_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Kathleen A. Newman___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002082862
SUFFIX
RECON
DATE BOARDED	20040108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 222	112.0000/enlistment contract
2. 289	128.0600/SLRP
3. 1018	103.0100/education benefits
4.
5.
6.