IN THE CASE OF:	  

		BOARD DATE:	        4 November 2008

		DOCKET NUMBER:  AR20080007191


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the record of her husband, a deceased former service member (FSM), be corrected to pay his student loans under the Loan Repayment Program (LRP).

2.  The applicant states, in effect, her husband enlisted in the Army for the LRP and was told his educational loans would be repaid under the LRP.  After enlisting, he learned they were not eligible for payment.

3.  The applicant provides:

	a.  DD Form 2064 (Certificate of Death).

	b.  DD Form 1300 (Report of Casualty).

	c.  A self-authored, 2-page letter.

	d.  DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States).

	e.  Seven-page Dep-IN (Statement for Enlistment U.S. Army DEP Enlistment Program)

	f.  9 June 2004 Recruiter statement.

	g.  Five Sallie Mae Signature Student Loans totaling $80,951.00.
	h.  Three pages of loan recap summaries.

	i.  DD Form 4/1-3 (Enlistment/Reenlistment Document Armed Forces of the United States).

	j.  Memorandum, dated 11 June 2007, with subject:  AR 15-6 Investigation Concerning the Death of [Name], Charlie Company, 1st Battalion, 508th Parachute Infantry Regiment on 6 June 2007.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests as stated above.

2.  Counsel states as stated above.

3.  Counsel provides as stated above.

CONSIDERATION OF EVIDENCE:

1.  On 9 March 2004, the FSM enlisted in the Delayed Entry Program (DEP).  His Dep-IN (Statement for Enlistment U.S. Army DEP Enlistment Program) shows he enlisted for:  Option 9A, the US Army Training Enlistment Program and Option 9C, the Army Incentive Enlistment Program (U.S. Army High Grad Bonus (30-59 Semester Hours) and U.S. Army LRP benefits.  The FSM authenticated his Dep-OUT (Statement for Enlistment U.S. Army Enlistment Program) indicating that he understood the provisions of the LRP.  He also acknowledged he understood that he must disenroll from the Montgomery GI Bill in order to qualify for the LRP.  In that regard, he completed DD Form 2366 (Montgomery GI Bill Act of 1984 – MGIB) disenrolling in the MGIB.

2.  On 3 June 2004, the FSM enlisted in the Regular Army (RA) as a Private First Class (PFC/E-3) for a period of 5 years.  Upon enlistment, he authenticated his DD Form 1966/3 to show that no changes were required concerning his enlistment options.

3.  The FSM served as an Airborne Infantry Soldier with Company C, 1st Battalion, 508th Parachute Infantry Regiment, 4th Brigade Combat Team, Fort Bragg, NC.  He rose to the rank of Sergeant (SGT/E-5) and served as a Team Leader in 3rd Platoon.

4.  The FSM’s recruiter provided a letter dated 9 June 2004 stating, “Due to a recruiting error these promissory notes were not turned in when this service member went on active duty.  Please do not penalize the Soldier for this mistake.  His name is [name and social security number of FSM].  Both the Soldier and myself appreciate your help.”  There were five Sallie Mae Signature Student Loans totaling $80,951.00.

5.  In 2007, the FSM was deployed with his unit to Afghanistan.  At 0645 hours, 6 June 2007, his unit was conducting a combat reconnaissance patrol when insurgents were encountered.  The FSM’s team was leading the 3rd Platoon along a wall surrounding an orchard and a compound.  As his team was moving along the wall, they noticed several portholes in the wall.  An insurgent armed with an AK-47 rifle began engaging members of 3rd Platoon.  Maneuvering to assist the platoon members under fire, the FSM noticed a second insurgent armed with a rocket-propelled grenade (RPG) about to engage the platoon.  The FSM warned his fellow platoon members and advanced toward the two insurgents.  Recognizing the insurgent armed with the RPG to be the more immediate threat, the FSM disregarded the insurgent with the AK-47 and engaged and killed him.  Turning his attention to the insurgent armed with the AK-47 to his immediate front, the FSM and insurgent engaged each other simultaneously at close range.  Killing the insurgent, the FSM was, himself, mortally wounded.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, US Army Human Resources Command (HRC), Alexandria, VA  which states, in effect, the Army Loan Repayment Program will repay a designated portion of any loan “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.”  In addition, Title 10, U.S.C. Section 1271 confirmed loans eligible for repayment must be made under Title IV, Part B or E of the Higher Education Act of 1965.

7.  The advisory opinion continues to say the National Defense Authorization Act (NDAA) of 2006 expanded 10 U.S.C. 2171 to allow repayment of education loans made by a lender under pension plans, state and commercial loans, and other similar sources which are not federally insured in case of death or serious injury.  The advisory opinion adds the applicant provided information that indicates the FSM believed his loans qualified under the LRP.  Based on documentation provided, and with the expansion of law, the Education and Incentive Branch would have made an exception to policy to repay the nonqualifying loans.  However, the Education and Incentives Branch has no procedure that would allow settlement of loans in a final death benefits action.


8.  The advisory opinion concludes that, should compensation be granted, the amount be based on the information provided in the applicant’s case paperwork, as represented by the promissory notes from Sallie Mae.  The opinion notes this amount exceeds the Army imposed limit of $65,000.00.  Any compensation awarded should be sent directly to the applicant.

9.  Army Regulation (AR) 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the RA and the US Army Reserve.  Chapter 9 (Enlistment Programs/Options) indicates that these programs/options are designed to merge valid Army Requirements with personal desires.

10.  Table 9-4 of AR 601-210 contains guidance on enlistment option program 9C (Bonus/Army College Fund/Loan Repayment Program).  It contains specific guidance pertaining to the 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.  The regulation further states that Guidance Counselors are specifically required to confirm they accomplished all the processing procedures by making the appropriate entries on a Record of Military Processing - Armed Forces of the United States (DD Form 1966) and DA Form 3286-66.  This includes a statement advising members of any loan he or she has that is not eligible for repayment and ensuring the applicant’s acknowledgement of this fact is also recorded in the Remarks Section of the DD Form 1966.

12.  U. S. Army Recruiting Command Regulation 621-1 (Montgomery GI Bill, Army College Fund, and Loan Repayment Program), current version effective   30 November 1998, paragraph 4-4a states that applicants enlisting for the LRP are no longer authorized to ship without documents or verification of eligible loans.

13 .  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.”


DISCUSSION AND CONCLUSIONS:

1.  The FSM’s loans did not meet the criteria established by law; however, this is not the overriding factor in this case, given the equity considerations and the resultant injustice. 

2.  The FSM enlisted assuming his loans were covered under the LRP.  Now, it has been determined that this information is incorrect.

3.  As noted by the HRC, the contested loans are not normally insured under the Higher Education Act of 1965 and do not fall within that Act.  However, the 2006 NDAA expanded 10 U.S.C. 2171 to allow repayment of education loans made by a lender under pension plans, state and commercial loans, and other similar sources which are not federally insured in case of death or serious injury.  Therefore, the FSM’s loans do qualify for repayment.

4.  The FSM enlisted in good faith believing that the Army would honor its commitment and pay his student loans.  The FSM kept his commitment and honorably served, sacrificing his life in defense of his fellow Soldiers and his country.
 
5.  Therefore, in the interest of justice and equity, it would be appropriate to provide the applicant benefits equal to those outlined in the FSM’s enlistment contract. 

6.  In doing so, the applicant's military records may be corrected to show his enlistment contract was amended to include the sentence "If a student loan is accepted by the official processing a Soldier for enlistment as payable under the LRP and the government fails to verify that the student loan accepted actually is eligible under the Higher Education Act of 1965 and such a failure results in nonpayment of the loan or repayment or default of the loan, the ABCMR may pay the applicant, 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 him the amount his lending institution would have been paid for his five Sallie Mae loans.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Amending the FSM’s Statement of Enlistment, U.S. Army Incentive Enlistment Program to include the sentence "If a student loan is accepted by the official processing a Soldier for enlistment as payable under the LRP and the government fails to verify that the student loan accepted actually is eligible for payment under the Higher Education Act and such a failure results in nonpayment of the loan or default of the loan, the ABCMR may pay the loan, or a pro rata share of the loan, in its sole discretion, in accordance with Title 10, U.S. Code, section 1552"; and

	b.  As a result of the foregoing correction, the Defense Finance and Accounting Service shall remit payment to the applicant in the amount of FSM’s Sallie Mae Signature Loans up to the Army-authorized limit of $65,000.00 as a result of this correction.  If required, the applicant will submit the appropriate evidence (promissory notes, etc.) to the Defense Finance and Accounting Service.



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of any loan amount in excess of $65,000.00.



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      _______ _   _______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007191



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ABCMR Record of Proceedings (cont)                                         AR20080007191



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