RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20060014645 


	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.


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	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, reconsideration of his earlier appeal to have all his student loans paid under the provisions of the Student Loan Repayment Program (SLRP), or as an alternative that he be allowed to participate in the Montgomery GI Bill and also be allowed to keep the over $5,000 which has already been paid by the Army towards his qualifying student loans.

2.  The applicant states, in effect, that in his initial request, he was denied because the loan was not a federally subsidized student loan and it was not covered by the SLRP.  He states he initially stated he was not properly informed and/or counseled on which loans qualified under the SLRP.  He attached a sworn affidavit to his request for reconsideration wherein he explains in detail what he meant by "not properly informed and/or counseled."

3.  The applicant continues that he showed his recruiter all his student loans.  The recruiter reviewed them carefully – or so he thought – and pronounced all of them qualified for repayment under the SLRP.  On reliance of his recruiter's pronouncement, he agreed to enlist.

4.  The applicant states he was sent to the MEPS (Military Entrance Processing Station) in Louisville, Kentucky, where he was again counseled about the terms of his enlistment contract.  At this time he repeated again to his recruiter how important the SLRP was and asked him again to verify that his student loans were covered.  The recruiter agreed and took the loan payments and sent him into the hallway to wait as he got another review.  More than an hour later, he returned with the loan papers and again assured the applicant that they all qualified for the loan repayment program.

5.  The applicant states he was counseled by a different NCO (noncommissioned officer).  This NCO went over all the terms of his enlistment contract.  When he reached the portion of the loan repayment program, the applicant repeated his question, "Are you sure that my student loans will be repaid?"  This NCO took a moment and looked at his loan documents then told him, "oh yeah, sure, no problem," or words to that effect.

6.  The applicant states, in effect, he did not know then that his student loan was not federally subsidized.  He did not even know what a federally subsidized student loan looked like.  That is why he brought those documents with him on the occasions he spoke to Army representatives.  In any event, it turns out that he was mistaken about his loans being qualified for repayment under the SLRP.

7.  The applicant continues that in lieu of rescission of his contract as a sole remedy, he would like to have that portion of his contract which pertains to the SLRP rescinded and that he be entitled to participate in the Montgomery GI Bill.  He could then contribute the lost premiums to the GI Bill Program that he would have paid had neither the Army nor he made an error and he would be able to receive the benefits he would have received but for the mutual error – the Army's and his.

8.  The applicant concludes by stating that the Army has already paid more than $5,000 towards his student loans under he SLRP and he would ask that he be allowed to retain that portion of his enlistment contract even if, in effect, the remainder of his enlistment contract is rescinded.

9.  In support of his request for reconsideration, the applicant submitted a sworn statement which contains much the same information as that contained in the narrative of his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized, in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040001889, on 24 February 2005.

2.  DD Form 1966/3, Record of Military Processing – Armed Forces of the United States, on file in the applicant's Official Military Personnel File (OMPF) shows, in item 30 (Data Verification by Recruiter), that the applicant's recruiter saw the applicant's birth certificate and verified the applicant's name, age and citizenship.  In addition, the recruiter saw the applicant's Social Security Account Card and college transcripts.  There is no indication on this form that the recruiter saw other documents.

3.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), of the applicant's DD Form 1966/3, shows he specifically enlisted for, among other options, the SLRP.

4.  DD Form 1966/4 is silent reference any information pertinent to the SLRP and any review of promissory notes and determination as to the qualification of the loans for repayment under the SLRP, and any counseling that may have been given the applicant pertinent to any loans that did not qualify (emphasis added).

5.  The applicant acknowledged that with his enlistment in the Regular Army for the SLRP he must disenroll from the GI Bill in order to qualify for this program and that disenrollment must be at the time he entered active duty.  The applicant further acknowledged if he failed to complete the disenrollment portion of the DD Form 2366, Montgomery GI Bill Act of 1984 (MGIB), he would not be eligible for the SLRP and would become automatically enrolled in the GI Bill.  The applicant completed the disenrollment section of the DD Form 2366 on 8 May 2002 and on 30 July 2002.  These forms were countersigned/witnessed by his guidance counselor.

6.  The DA Form 3286-59, Statement for Enlistment, United States Army Enlistment Program, U.S. Army Delayed Enlistment Program, which was completed on 8 May 2002, shows the applicant enlisted for Programs 9A (US Army Training Enlistment Program (UNCM) and Program 9C (US Army Incentive Enlistment Program (Loan Repayment Program, Cash Bonus, $10,000).  The applicant acknowledged that his enlistment in the Regular Army was scheduled for 26 July 2002.

7.  On 29 January 2004, the applicant applied for repayment of all his student loans under the SLRP.

8.  On 4 March 2004 the Army Human Resources Command, Education Incentives and Counseling Branch, informed the applicant the loan which was disbursed by Great Lakes on 10 July 2001 in the amount of $6,564.28 did not qualify for repayment under the SLRP.

9.  On 31 December 2007, the Army Human Resources Command, Education Incentives and Counseling Branch, confirmed the applicant had received three loans before his enlistment in the Army.  The Sallie Mae Servicing Corporation verified the applicant received a loan in the amount of $5,250.00; Nelnet verified he received a loan in the amount of $3,500.00; and Great Lakes (Key Education Resources) verified he received an alternative loan, that was disbursed on
10 July 2001, totaling $6,564.28.

10.  USAREC Regulation 621-1, paragraph 1-4.f. states that applicants who possess qualifying loans and requests entitlement under the SLRP must be advised that they cannot have loans repaid and also earn benefits under the Montgomery GI Bill.  The individuals may earn benefits in one or the other of the programs but not both.

11.  USAREC Regulation 621-1, paragraph 4-2.i. requires applicants for enlistment for the SLRP to provide the Army a loan promissory note before enlistment.

12.  USAREC Regulation 621-1, paragraph 4-4.a. states that applicants are no longer authorized to ship without documents or verification of eligible loan.

13.  USAREC Regulation 621-1, paragraph 4-8.f. states that effective 1 July 1985, participation in both the Montgomery GI Bill and SLRP is prohibited.  To enlist for the SLRP, the Soldier must disenroll from the Montgomery GI Bill on DD Form 2366, block 4.  Disenrollment must be accomplished at the time the Soldier enlists in the Army.

14.  AR 601-210, Chapter 6, MEPS Processing Phase, provides policy and guidance for those functions that are administered at the MEPS by MEPCOM (Military Entrance Processing Command) for personnel and guidance counselors to confirm that they accomplish all procedures in the enlistment process by making the appropriate entries in the DD Form 1966 series and DA Form 3286-66.  Paragraph 6-5.g. states that the guidance counselor "counsels applicants who failed to meet specific qualifications for options for which they applied; advises them of other available options."  This includes a statement regarding the applicant’s eligibility for the SLRP, which is to include any factors that may disqualify them from receiving SLRP benefits, and ensuring that the applicant’s acknowledgement of this fact is also recorded in the remarks section of the appropriate form of the DD Form 1966 series.

15.  The applicable subparagraphs of Table 9-4, line 7, AR 601-210, which was then in effect, states that guidance counselors will "a.) complete the required entries on the DD Form 1966; c.) if enlisting for the LRP, disenroll the applicant or Soldier from the GI Bill; and d.) verify that the applicant has qualifying loans if enlisting for the LRP.  Advise applicant if any loan is not eligible and have the applicant acknowledge same in the remarks section of the DD Form 1966-series (emphasis added)."

16.  DD Form 1966 series and accompanying forms were reviewed for any indication or remarks that any of the applicant's loans was not eligible for repayment under the SLRP.  None was found.

17.  Title 10, US 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."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received both qualifying and non-qualifying loans before his enlistment in the Army.  Among the loans he received was an alternative loan from Great Lakes in the amount of $6,564.28.

2.  The applicant enlisted, for among other options, payment of his student loans under the SLRP.

3.  In his application to this Board, the applicant stated that he was told by his recruiter that all his student loans qualified for repayment under the Army's SLRP.  On 31 December 2007, a staff member of the Board was advised by the AHRC, Education Incentives and Counseling Branch that the applicant had other loans which qualified for repayment and have been paid.

4.  There is no evidence the applicant was told by either his recruiter or the guidance counselor at the MEPS that any of his loans, and in particular the loan extended by Great Lakes, did not qualify for repayment under the SLRP.

5.  The evidence shows the applicant was appropriately guided through the signing or initialing of the required forms acknowledging the Army's and his responsibilities with regard to his other enlistment options/incentives/obligations.

6.  Upon completion of his processing at the MEPS, the applicant was allowed to proceed to his basic combat training site.  Applicable regulation specifically state applicants are not authorized to ship without documents or verification of eligible loan(s) if they enlisted for repayment of their student loans under the SLRP.

7.  The applicant submitted the required DD Form 2475 seeking payment of the loan that had been extended through Great Lakes.  Great Lakes completed its portion of the DD Form 2475 on 29 January 2004.  The form was annotated to show the original amount of the loan and the outstanding balance.  The DD Form 2475 was, in turn, submitted to the Education Incentives Branch for payment.  The Education Incentives Branch, on review of all documents, notified the applicant his loan from Great Lakes did not qualify for repayment under the SLRP.  He was advised to apply to this Board if he felt he was not properly counseled or an error or injustice had occurred.

8.  The applicant applied to this Board and on 8 March 2005, he was notified his request to the Board for repayment of his student loan from Great Lakes had been denied.  Denial was based on the fact the loan from Great Lakes was not a federally subsidized student loan.

9.  The applicant's contention that he brought all his promissory notes to the recruiter and to the guidance counselor at the MEPS is highly credible.  It is illogical to believe the applicant brought all his other promissory notes, but the one related to the loan from Great Lakes, for review by his recruiter and guidance counselor at the MEPS.  It appears that responsibilities to the applicant were not exercised to the fullest in that he was not provided adequate counseling related to his non-qualifying loan.  It is apparent that appropriate entries pertinent to the required counseling were not made on the required forms or it appears that the required counseling pertinent to his non-qualifying loan was not given at all.

10.  In the processing of the applicant's original application, the absence of these required entries was overlooked.  Upon identification that a loan is non-qualifying, the recruiter or the guidance counselor have the obligation to notify the potential enlistee and provide him/her counseling pertinent to the non-qualifying loan.  After counseling is given, the applicant is required to acknowledge he/she was counseled and it becomes a matter of record on the DD Form 1966 series.

11.  It appears during the initial review and analysis of documents related to this case, the absence of the required entries pertinent to the non-qualifying loan was overlooked.  Counseling responsibilities which are clearly outlined in both Army regulations and in regulation specifically in place for Army recruiters were overlooked and the applicant was allowed to proceed through his processing at the MEPS and to his initial training 

12.  The evidence shows that the applicant entered into an erroneous contract with the Army, through no fault of his own, based on the failure of his recruiter and the guidance counselor to strictly follow established regulatory guidelines and procedures in connection with his recruitment and enlistment processing.  Given the failure by the guidance counselor to follow clearly established policies and procedures, it would be appropriate to correct the resultant injustice to the applicant at this time.  It would be equitable and in the interest of justice to provide the applicant the SLRP benefits he was promised in his enlistment contract at the time of his enlistment.

13.  The applicant requested that as an alternative to repayment of his student loan from Great Lakes that he be allowed to participate in the Montgomery GI Bill and also be allowed to keep the over $5,000 which has already been paid by the Army towards his other qualifying student loans.  The evidence shows he completed and signed a DD Form 2366 to disenroll himself from participation in the MGIB, as required by program rules in order to qualify for enlistment under the SLRP.  The applicable regulation, in paragraph 4-8.f., states that effective 1 July 1985, participation in both the Montgomery GI Bill and SLRP is prohibited.  To enable his enlistment for the SLRP, the Soldier disenrolled from the Montgomery GI Bill.  The evidence further shows he has received benefit from his enlistment contract for and has had other student loans paid under his SLRP enlistment option.  Additionally, the fact that the applicant disenrolled from the Montgomery GI Bill provides sufficient proof he was counseled with regards to his future eligibility for participation in the Montgomery GI Bill.  Therefore, he is not eligible to participate in the Montgomery GI Bill.

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

BOARD VOTE:

____x__  ___x  ___x __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20040001889, dated 24 February 2005.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  amending the applicant's enlistment contract to include the statement,  "If a student loan is accepted by the officials processing you for enlistment, as payable under the SLRP, and the government fails to verify that all student loans accepted actually are eligible under the Higher Education Act of 1965, and such failure results in nonpayment of the loan by the SLRP, the Army Board for Correction of Military Records may pay the loan, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552”; 

b.  directing that the applicant submit the appropriate evidence, in the form of promissory notes, etc. to the DFAS to determine the amount due on the loans addressed by these proceedings; and

c.  directing that in accordance with Title 10, US Code, section 1552, the DFAS make payment to the applicant, for the total amount of loans not covered under the Student Loan Repayment Program, based on time served, at the appropriate rate, and at the appropriate time, as a result of this correction.

2.  The Board further determined that, in light of the correction noted above, the applicant's request to, as an alternative, participate in the Montgomery GI Bill need not be addressed.




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          CHAIRPERSON




INDEX

CASE ID
AR20060014645
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080117
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
112.1200
2.

3.

4.

5.

6.