RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012907 


	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.  


x

	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, in effect, payment of college loans under the terms of the United States Army Loan Repayment Program (USA LRP). 

2.  The applicant essentially states that he was told by his recruiter that his student loans qualified for the USA LRP. He also states that he was informed beginning in February 2006 that his loans did not qualify for the USA LRP after he submitted multiple DD Forms 2475 (DOD Educational Loan Repayment Program Annual Application).  He also states that his college training was in aviation and he desired to enlist under the warrant officer flight training program; however, because that option did not include the USA LRP, he opted for enlistment to obtain that option to pay his student loans and would not have chose that had he been told that his loan did not qualify.   

3.  The applicant provides 14 enclosures that are listed on the letter attached to his application.

CONSIDERATION OF EVIDENCE:
 
1.  The applicant enlisted in the United States Army Reserve (USAR) in Charlotte, North Carolina on 9 September 2003, under the Delayed Entry Program for a period of 8 years.  He enlisted in the Regular Army (RA) on 4 May 2004 for a period of 6 years, training in the Special Forces Recruit Program, a cash enlistment bonus of $14,000 and enrollment in the USA LRP for payment of student loans not to exceed $65,000.    

2.  The USA LRP is one of the incentives in his RA Statement for Enlistment, and the applicable USA LRP terms are listed in paragraph 2 of his RA Statement for Enlistment.  The USA LRP provisions state, in pertinent part, that the applicant understood he must disenroll from the Montgomery GI Bill (MGIB) at the time he entered active duty and that if he failed to do this he would not be eligible for the USA LRP.  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, D, or E of the Higher Education Act of 1965, after 1 October 1975, and before entering active duty in the Army.  The applicant disenrolled from the MGIB on 17 June 2004. 
  
3.  He successfully completed his basic, advanced and airborne training at Fort Benning, Georgia and was transferred to Fort Bragg, North Carolina.  He deployed to Iraq twice in support of Operation Iraqi Freedom during the period of December 2004 to March 2005 and September 2005 to December 2005.
4.  Beginning in February 2006, the Chief, Education Incentives Branch, USAHRC notified the applicant that his loans, which exceed $70,000.00, did not qualify for repayment under the USA LRP.  The applicant was advised to apply to this Board if he believed he was not properly counseled or that an error or injustice had occurred.  

5.  On 8 May 2006, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 7, due to erroneous entry based on his unfulfilled enlistment commitment (USA LRP).  The appropriate authority approved his request on 10 August 2006 and on 31 August 2006, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 7, for erroneous entry.  He had served 2 years, 3 months and 27 days of total active service and was awarded the Combat Infantryman Badge, the Parachutist Badge, the Army Commendation Medal with one oak leaf cluster, the Valorous Unit Award, the National Defense Service Medal, the Iraq Campaign Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.  The applicant applied to this Board subsequent to his discharge.

6.  In support of his application the applicant provides a sworn statement from a recruiter in Charlotte, North Carolina that indicates that he understood that the USA LRP was the major reason the applicant enlisted because he had in excess of $100,000 in student loans to be repaid.  He also states that there was no evidence that the loans did not qualify under the USA LRP.

7.  The applicant also provides a statement from the Recruiting Command liaison at Fort Benning which indicates that due to a recruiting error, the promissory notes were not turned in prior to the applicant entering active duty.

8.  A review of the applicant’s enlistment contract reveals no entries that indicate that any of the applicant’s loans did not qualify under the USA LRP or that the applicant was counseled to that effect.

9.  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 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.

10.  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 (U.S. Army Incentive Enlistment Program/U.S. Army Loan Repayment Program).  It contains specific guidance pertaining to the USA LRP 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 RA.

11.  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 USA LRP incentive.  These actions include ensuring members are disenrolled from the MGIB, verifying that members have qualifying loans, and advising members of any loan that is not eligible.

12.  The same 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/or DA Form 3286-66.  This includes a statement regarding the applicant’s eligibility for the USA LRP, which includes any factors that may disqualify them from receiving the USA LRP benefit, and ensuring that the applicant’s acknowledgement of this fact is also recorded in the Remarks Section of the DD Form 1966.

13.  The USA LRP 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 occupational 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 occupational 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.

14.  Army Regulation 635-200 serves as the authority for Active Army Enlisted Separations.  Chapter 7, Section III provides that a Soldier may be separated on the basis of erroneous enlistment if it is determined that the enlistment would not have occurred had the relevant facts been known by the government or had appropriate directives been followed, that it was not the result of fraudulent conduct on the part of the Soldier and the defect is unchanged in material respects. 

DISCUSSION AND CONCLUSIONS:

1.  It is clear the applicant’s student loans did not meet the criteria established by law and regulation to qualify for repayment by the Army under the USA LRP.  The loans were not made, insured, or guaranteed under Title IV, Part B, D, or E of the Higher Education Act of 1965, as is required.  

2.  The applicant’s USAR Statement of Enlistment shows that he enlisted in the USA LRP and that he disenrolled in the MGIB as a condition of enlisting in the USA LRP.  

3.  The applicant’s RA Statement of Enlistment, which is annexed to his enlistment contract, established a contractual agreement between the applicant and the Army.  The evidence of record clearly shows that the responsible recruiting officials failed to make reference to any loans ineligible for payment under the USA LRP.

4.  In addition, governing regulations require 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. In this case, counselors failed to properly document the ineligibility of the applicant's loans in the DD Forms 1966/3 and 1966/4 prepared on the day he departed for active duty. 
 
5.  Similar USA LRP cases have been referred for an advisory opinion from the USAHRC, Chief, Education Incentives Branch.  This USAHRC official has recommended disapproval of these requests based on the loans in question not being eligible for repayment under the terms of the applicant’s enlistment contract because they were not made, insured, or guaranteed under Title IV, Part B, D, or E of the Higher Education Act of 1965 and there are no exceptions to the law that would allow authorization of payment by USAHRC.

6.  While the facts in this case certainly suggest that the Board could grant relief in this case as a matter of equity, the fact that the applicant elected to be discharged based on the failure on the part of Government officials to follow its own regulations during his enlistment processing has in fact terminated his flawed contract with the Army. 

7.  Inasmuch as the applicant exercised his right to be discharged rather than to appeal the decision while on active duty, there appears to be no basis to grant him the relief he now seeks on a contract that is essentially voided.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x____  __x____  _x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





______________________
          CHAIRPERSON



INDEX

CASE ID
AR20060012907
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.103.0000
23/SLRP
2.

3.

4.

5.

6.