IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080011494 


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 he be awarded benefits under the Montgomery G.I. Bill (MGIB).  In the alternative, he requests a refund of the money he paid into the MGIB program.  He also requests payment of his student loans. 

2.  The applicant states, in effect, that he enlisted under the Loan Repayment Program (LRP); however, the Army has not paid his loans.  He also adds that he enrolled in the MGIB and made all the necessary payments; however, when he went to process his entitlements, he was informed he was ineligible for the MGIB because he received loan forgiveness. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Undated self-authored letter.

	b.  Loan Repayment Sheet.

	c.  DD Form 2366 (MGIB Act of 1984)

	d.  Statement for Enlistment-U.S. Army Enlistment Program (Dep-Out), dated 20 May 2004.

	e.  Leave and Earnings Statements (LES) from June 2004 to May 2005.  

4.  On 8 October 2008, the applicant submitted a second self authored letter, dated 8 October 2008 and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 October 2008.  He is currently on terminal leave.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the U.S. Army Reserve for a period of 8 years under the Delayed Entry Program (DEP) on 12 March 2004.  He subsequently enlisted in the Regular Army for a period of 4 years and 16 weeks, in the rank/grade of private first class (PFC)/E-3, on 20 May 2004.  

2.  Item 1a (Enlistment Programs) of the applicant's Dep-Out (Statement of Enlistment-U.S. Army Enlistment Program) confirms the applicant enlisted for Program 9A [U.S Army Training Enlistment Program (UNCM)] and Program 9C [U.S Army Incentive Enlistment Program (US Army Loan Repayment Program and (U.S Army Cash Bonus, 4 Yr Enlistment)].

3.  In Item 2 (Associated Options) of his Dep-Out, the applicant acknowledged he understood that 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 LRP.  He also acknowledged he understood only certain loans qualify for the LRP program and 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.  

4.  Further, Item 2 indicates the applicant’s enlistment for the LRP 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 for each year of service completed.  The applicant and the service representative signed this document on the date he entered active duty, on 20 May 2004, and there is no indication on this form that any question was raised in regards to the eligibility of his loans for repayment.  

5.  The applicant acknowledged that with his enlistment in the Regular Army for the U.S Army LRP he must disenroll from the GI Bill in order to qualify for this program and that disenrollment must be at the time he enters active duty.  Accordingly, on 25 May 2004, the applicant completed and signed a DD Form 2366, Montgomery GI Bill Act of 1984 (MGIB), form to disenroll himself from participation in the MGIB.

6.  The applicant's records show he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He served in Afghanistan in support of Operation Enduring Freedom from April 2005 to April 2006 and in Iraq in support of Operation Iraqi Freedom from May 2007 to July 2008.  

7.  The applicant's LES during the period June 2004 to May 2005 show that money was erroneously reduced from his pay in the amount of $100.00 per month, for a total of $1,200.00.

8.  The applicant's records reveal that he had two loans that qualified for repayment under the LRP.  The total remaining original unpaid principal verified by U.S. Department of Education is $12,795.08 and the University Accounting Services costs are $2,200.00.  Appropriate payments were authorized towards his qualifying student loans.

9.  The applicant's records show that he was honorably released and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 23 October 2008.  This form further shows he completed 4 years, 5 months, and 4 days of creditable military service.  The highest rank/grade he attained during this period of military service was sergeant (SGT)/E-5.

10.  The applicant submitted a copy of a third loan document pertaining to a private student loan obtained from Firstmark Services, on 2 July 2001, which has an outstanding balance of $6,608.97, as of 28 February 2008.  However, based on information obtained from Firstmark Services, the Private Student Loan does not qualify for repayment under the LRP.  The loan is not made, insured, or guaranteed under Title IV, Part B, D, or E of the Higher Education Act of 1965.  

11.  In his undated self-authored letter, the applicant states that:

	a.  He waived enrollment in the MGIB in favor of the LRP and that he feels he was treated unjustly in this process.  Despite disenrollment, the Army deducted $1,200.00 over of a period of 12 months for the MGIB.  He also adds that when he enlisted, none of this was explained to him and that the recruiter placed the enlistment contract in front of him and asked him to sign and that the person who witnessed the signing was a private (PVT)/E-1.  He further adds that when he recently attempted to pay an additional $600.00 into the MGIB to increase his entitlements, he was told he was ineligible for the MGIB, something that he and his family were counting on upon his separation.  


	b.  When he signed his contract, the recruiter told him that the Army would pay all previous loans which he had accrued to date; however, this turned out to be untrue because the LRP pays only for federal loans, thus excluding some of his loans, one of which he still has to pay out of his pocket as he has been doing for 4 years since he graduated from college.

	c.  The cost of education was a major factor in his enlistment in the Army.  He believes that withholding educational benefits, especially after two combat tours, 4 years of honorable service, and a stop-loss is a great injustice.  At the very least, he should be entitled to have his $1,200 MGIB payments refunded with interest.

12.  In a second self-authored letter, the applicant states that he was misled by the Military Entrance Processing Station (MEPS) officer regarding the MGIB.  He also adds that he gave the Army unwavering service with honor and distinction, and completed two combat tours in Afghanistan and Iraq, and was even involved in the Army's stop-loss; yet, he served honorably.  He also states that he volunteered for Airborne training and graduated with ease and went on to become a disciplined paratrooper, on jump status throughout his entire service.  He concludes that he has a wife and a child on the way and wishes to further his education to become an even more productive member of society. 

13.  An advisory opinion was obtained on 29 August 2008 in the processing of this case.  The Chief of the Education Incentive Branch at the Human Resources Command, Alexandria, Virginia, recommended disapproval of the applicant’s request.  The Chief remarked the following:

	a.  In Section 4 of his DA Form 3286-66, the applicant acknowledged that under the LRP, the government would repay a designated portion of his loan he incurred, that was made, insured or guaranteed under Part B of the Higher Education Act of 1955 (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.  In addition, Title 10, section 2171 confirms loans eligible for repayment must be made under Title IV, Part B, D, or E of the Higher Education Act of 1965.

	b.  Based on the information obtained from Firstmark Services, the Private Student Loan does not qualify for repayment under the LRP.  That loan is not made, insured, or guaranteed under Title IV, Part B, D, or E of the Higher Education Act of 1965.  There are no exceptions to the law.  Therefore, payment cannot be authorized on his non-qualifying loan.  He borrowed money for his education and then joined the Army to have his qualifying loans repaid.
	c.  The applicant has other loans that qualify for repayment under the LRP.  The total remaining original balance unpaid principal verified by the U.S. Department of Education is $12,795.08 and University Accounting Services is $2,200.00.  Appropriate payments were authorized toward his qualifying student loans. 

	d.  If the Board decides to grant compensation, the Chief recommends that the computation of any payment be based on the applicant’s case paperwork.  The total amount of compensation requested for the LRP should be $6,608.97 for the non-qualifying private loan and that if this amount is so authorized, it should be sent directly to the applicant.

	e.  An administrative error can be declared and allow the Soldier to enroll in the MGIB only if there is documentation or evidence supporting the claim for eligibility.  The applicant enlisted with the LRP as a part of his Regular Army contract and disenrolled from the MGIB.  Part of the eligibility criteria for the LRP is to disenrol from the MGIB.  The applicant’s contract indicates that he understood the eligibility criteria.  There is no indication that his contract is incorrect; therefore, he will not be afforded the opportunity to enroll in the MGIB.  However, since money was erroneously collected from his pay, an administrative error is declared and his request for a refund is granted.  Details on how the applicant may obtain his refund will be sent under separate cover.

	f.  The President signed legislation that included an expansion of veterans' education benefits on 30 June 2008.  The post 11 September 2001 Veterans Educational Assistance Act of 2008 has been signed into law and is effective 1 August 2009.  Since official guidance has not been released by the Department of Defense, the applicant is advised to contact his local Army Education Center in the late fall timeframe; if official guidance has been received, the applicant is advised to discuss with a counselor the possibility of eligibility for any authorized benefits under this law.  

14.  On 29 August 2008, the Education Incentive Branch of the U.S. Army Human Resources Command, Alexandria, Virginia, advised DFAS, Indianapolis, Indiana to review the applicant’s account and refund any money that may have been erroneously deducted to pay for MGIB. 

15.  The applicant was furnished a copy of this advisory opinion on 18 September 2008; however, he did not respond.



16.  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 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 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. 

17.  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 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 Regular Army.

18.  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. 

19.  The LRP is a Department of the Army enlistment option authorized by Public Law 99-145.  This option is designed to increase Test Score Category 
I-IIIA accessions.  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.  Before entering active duty, the loan must not be in default.  The borrower is responsible for obtaining a deferment/forbearance with the loan holder and the loan must remain in good standing throughout the repayment process.  Active Army LRP participants earn their first loan repayment after completion of a full year of active duty and for each full year thereafter, up to 3 years.  Payment of 33 1/3 percent or $1,500, whichever is greater, is authorized annually to the loan holder on the total remaining original outstanding principal balance.  The Government will not make any payments to the Soldier or reimburse a Soldier if he or he pays off a student loan.  The Government will only pay the lending institution.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army for an option that would guarantee him payment of certain student loans in exchange for his military service.  He acknowledged that with his enlistment in the Regular Army for the US Army LRP, he must disenroll from the MGIB in order to qualify for this program and that disenrollment must be at the time he enters active duty.  Accordingly, on 25 May 2004, the applicant completed and signed a DD Form 2366.  There is no indication that his contract is incorrect or that he was not counseled properly regarding the MGIB.  Therefore, he is not entitled to enroll in the MGIB.  

2.  Nevertheless, money was erroneously deducted from the applicant’s pay in the amount of $100.00 per month, from June 2004 to May 2005, due to an administrative error.  On 29 August 2008, the applicant was advised by separate correspondence, addressed from the Education Incentive Branch of the U.S. Army Human Resources Command, Alexandria, Virginia, to the Defense Finance and Accounting Service, Indianapolis, Indiana regarding a refund of the erroneous collection. 

3.  With respect to the applicant's loans, the evidence of record shows that payment of two qualifying loans in the amounts of $12,795.08 and $2,200.00 were authorized.  However, his third loan does not qualify for repayment under the LRP. This loan did not meet the criteria established by law and regulation to qualify for repayment by the Army under the LRP.  The loan was not made, insured, or guaranteed under Title IV, Part B, D, or E of the Higher Education Act of 1965, as is required.  Therefore, he is not entitled to relief.

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.


															XXX
      _______ _   _______   ___
               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)                                         AR20080011494



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ABCMR Record of Proceedings (cont)                                         AR20080011494



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