IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120007783 


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 his enlistment contract specifying his enrollment in the Student Loan Repayment Program (SLRP) be honored and payment of his student loans in accordance with his contract.

2.  The applicant states, in effect, that he received three Citi-Assist Loans in the amounts of $4,000, $10,500, and $6,000 prior to enlistment and he provided the information regarding the loans to his recruiter.  His recruiter informed him that the loans were eligible for the SLRP.  He goes on to state the loans were paid under the SLRP the first year; but when the loans came due in the second year of his enlistment he was informed none of the loans were eligible for payment under the SLRP because they were private loans.  He also had to repay the previous year's payment.  He states that he made a statement on his contract to the effect that "he understood he was eligible for an Enlistment Cash Bonus and the SLRP."  He believed what he was told at the time and he requests that the Army honor the contract as he has honored it.

3.  The applicant provides a three-page statement explaining his application (Exhibit A) and a table of contents (Exhibit B).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 2 July 2009 for a period of 8 years, training as a motor transport operator, a cash enlistment bonus in the amount of $10,000, and participation in the SLRP for a maximum of $20,000.
2.  He completed initial active duty training and was returned to his PRARNG unit.  He applied for payment of his student loans and the first payment was made in August 2010.  He applied for his second payment in 2011 and he was informed by National Guard Bureau officials that not only was his payment not going to be made because his loans were determined to be private loans, but he had to repay the amount that already had been paid ($4,000). 

3.  Army Regulation 601-210 (Regular Army (RA) and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the RA, U.S. Army Reserve, and ARNG.  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 the military occupational specialty (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.

4.  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 (USA LRP).  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.

5.  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 Montgomery GI Bill, verifying that members have qualifying loans, and advising members of any loan that is not eligible.

6.  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.

7.  The SLRP is a Department of the Army enlistment option authorized by Title 10 of the U.S. 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 MOS's.  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, Parent Loan for Undergraduate Students (PLUS), Auxiliary Loan Assistance for Students, 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.

8.  10 USC 1552, the law which provides for the Board, states that "[t]he 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.  While the National Guard Bureau does not pay for private loans under the SLRP, this is not the overriding factor in this case given the equity considerations and the resultant injustice.

2.  The applicant's enlistment contract clearly shows that a contractual agreement was made between the applicant and the PRARNG and that the   responsible recruiting officials failed to ensure that the applicant's loans were qualified for his enlistment under the SLRP before he entered the applicant into the agreement. 

3.  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.  

4.  In view of the facts of this case, it appears 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 the applicant's enlistment processing, through no fault of the applicant.  Given that failure on the part of Government officials to follow its own regulations during the applicant's enlistment processing was the approximate cause of the problem it would be appropriate to rectify the resultant injustice at this time.

5.  Notwithstanding that National Guard Bureau officials did not properly execute the regulations regarding enrollment in the SLRP and then failed to honor its contract to the applicant when it was within its authority to do so, it is the Board's responsibility to ensure that all Army Soldiers are treated equally under the applicable laws and regulations.

6.  In doing so, the applicant's military records should be corrected to show that Paragraph 2 (Associated Options) of the applicant's Statement for Enlistment, U.S. Enlistment Program, dated 8 April 2004, was amended to include the sentence "If a student loan is accepted by the official processing you for enlistment as payable under the U.S. Army LRP and the government fails to verify that the student loan accepted actually is eligible under the Higher Education Act of 1965 and such failure results in nonpayment of the loan by the U.S. Army LRP or the repayment or default of the loan, the Army Board for Correction of Military Records may pay the loan, at its sole discretion, in accordance with 10 USC, section 1552."  This would allow the Board to invoke that provision and pay the individual the amount the lending institutions would have been paid for his student loans.

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Paragraph 2 (Associated Options) of the applicant's Statement for Enlistment, United States Army Enlistment Program, dated 8 April 2004, to include the sentence "If a student loan is accepted by the official processing you for enlistment as payable under the U.S. Army LRP and the government fails to verify that the student loan accepted actually is eligible under the Higher Education Act of 1965, and such failure results in nonpayment of the loan by the U.S. Army LRP or the repayment or default of the loan, the Army Board for Correction of Military Records may pay the loan, at its sole discretion, in accordance with 10 USC, section 1552."

2.  That as a result of the foregoing correction, the Defense Finance and Accounting Service (DFAS) shall remit payment to the applicant the total amount of his education loans in the amount of $20,000.00, which he is entitled as a result of this correction and any recoupment actions initiated for this loan should be cancelled/remitted.  If required, the applicant will submit the appropriate evidence (e.g., promissory notes, etc.) to DFAS.  In addition, if the applicant does not complete the remaining conditions of his contract, DFAS will initiate action for recoupment of a prorated share of the payments.



      _______ _   __x_____   ___
       	   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)                                         AR20120007783



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ABCMR Record of Proceedings (cont)                                         AR20120007783



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