BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130018428 


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:

* entitlement to the Student Loan Repayment Program (SLRP) in the amount of $20,000
* his private loans be made eligible for repayment under the SLRP
* the $4,481.26 being sought as recoupment be excused

2.  The applicant states:

	a.  His SLRP was approved when he initially enlisted in the California Army National Guard (CAARNG) in January 2008 for $20,000.  He was enticed to enlist by the bonus incentive to pay toward his existing student loans.  All four of the student loans that he had were listed as eligible for payment under the SLRP by his recruiter, Sergeant (SGT) Bxxxxx, on his DD Form 1966 (Record of Military Processing - Armed Forces of the United States).  His contract should be honored and he should be granted relief from the recoupment of funds already received.
   
   b.  In 2008, $1,046.25 was directed by the SLRP to his U.S. Department of Education loan.  At that time, he was told to resubmit his loans the next year, after his 1 year anniversary with the Army.  During this time, he paid off the remaining balance of the $10,125 ($6,276.18) out of his own pocket.
   
   c.  At the end of that year, he deployed to Kosovo.  During this time, he attempted to gather and submit all the necessary paperwork to collect what he would be entitled to through the SLRP.  His fiancé helped with the efforts and they were both in regular contact with Master Sergeant (MSG) Jxxxe.  He was assured it was being handled.  His fiancé paid American Education Services (AES) $976.88 for Fiscal Year 2009 (FY09), $1,500 for FY08, and she paid Sallie Mae $976.88 for FY09 and $1,500 for FY08.  He was enclosing emails he received from MSG Jxxxx regarding his loans.
   
   d.  By April 2012, he learned there was a question of eligibility concerning his loans.  He had exchanged emails with Sergeant First Class (SFC) Pxxxxx and SGT Lxxxxxx and was informed his private loans were never eligible for the SLRP and nothing should have been paid toward those loans.  Regrettably, he had relied on the assurances he had received from MSG Jxxxx and, to his own detriment, he had paid off his Federal student loans the prior year rather than the private loans.
   
   e.  In May 2010, he contacted his Congresswoman to help resolve the mass confusion.  Her office received a response from Colonel (COL) Cxxxxxxx, who stated in a letter that "this was an erroneous payment due to administrative oversight, through no fault of the Soldier."
   
   f.  From May 2010 to early 2012, he paid the remaining balance of private student loans, exceeding $30,000, from his own pocket.  In April 2012, he received a letter informing him of the intent to recoup from him the monies he had been paid.  The audit packet designated his particular condition as “non-correctable” and, therefore, not eligible as an exception to policy (ETP) as they were against federal law and beyond the CAARNG’s authority to correct.
   
   g.  He is requesting any correction necessary to his records to reflect the SLRP Addendum agreement he entered into was valid, relief from the recoupment of the $4,481.25 he was paid through the SLRP, and to show his private educational loans were eligible for payment under the SLRP.  These loans have already been paid in full.

3.  The applicant provides:

* Annex E to DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) (NPS Enlistment Bonus Addendum - ARNG of the United States (ARNGUS))
* Annex L to DD Form 4 (SLRP Addendum - ARNGUS)
* forty-six pages of email, dated between 16 January 2009 and 10 August 2010
* five letters, dated between 7 May 2010 and 16 July 2010
* a statement of support, dated 25 April 2013
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the CAARNG on 23 January 2008 for a period of 8 years and he is currently serving on active duty in Afghanistan as a member of the CAARNG in the rank/grade of SGT/E-5.

3.  The applicant provides and his records contain Annex E to DD Form 4, dated 23 January 2008, wherein it shows he was a non-prior service (NPS) applicant who agreed to enlist in a projected unit vacancy for the non-critical skill in military occupational specialty (MOS) 21W (Carpentry/Masonry Specialist), (this MOS subsequently converted to MOS 12W) under the Selected Reserve Incentive Program (SRIP) for a bonus of $20,000.  

4.  He also provides and his record contains Annex L to DD Form 4, dated 23 January 2008, wherein it shows in section II (Eligibility) he acknowledged and agreed to the following:

* he was an NPS applicant who agreed to serve at least 6 years in the CAARNG
* he enlisted to serve in Detachment 1, 315th Engineer Company, VI Corps Combat Engineers, Oxnard, CA, which was authorized the SLRP
* he had existing loans in the amount of $20,000, the total amount of repayment for qualifying loans would not exceed $20,000
* he may acquire new loans during the contracting period

5.  Section III (Entitlement and Payments) of Annex L to DD Form 4 shows he acknowledged he understood:

   a.  The Government would repay a designated portion of any outstanding loan(s) he had secured since 1 October 1975.  The loan(s) must have been made, insured, or guaranteed under Part B of the Higher Education Act of 1965 (Guaranteed Student Loans/Federally Insured Student Loans), or any loan made under Part E of such act (National Direct Student Loans).  
   
   b.  Loans eligible for the SLRP are Stafford Loans (subsidized and unsubsidized), Federally Insured Student Loans, Perkins Loans, Auxiliary Loans to Assist Students (ALAS), Supplemental Loans for Students (SLS), Consolidated Loan Program (CLP and SMART), William D. Ford Federal Direct Loan Program (State Student Loans are not eligible for the SLRP). 
   
   c.  The total amount of repayment of qualifying loans(s) will not exceed $20,000.  This contract will terminate at the end of his contracted obligation and:

* loans must be 1 year old or older on the 1st anniversary eligibility date to qualify for repayment
* loans that fall into default at any time after his enlistment would not be eligible for repayment
* the portion that may be repaid annually on any qualifying loan(s) would not exceed 15 percent (not to exceed $3,000) of the total of all loans or $500, whichever is greater
* payment would be processed on the anniversary date of his enlistment for each satisfactory year served

6.  Section IV (Statement of Understanding) of Annex L to DD Form 4 shows he acknowledged, in part, that he would furnish the Military Entrance Processing Station (MEPS) counselor a copy of all of his promissory notes or letters of disbursement upon enlistment.  He was responsible for maintaining his loan account in good standing.  If he did not, his loans would go into default and the ARNG would not make a payment on a defaulted loan (emphasis added).

7.  He entered initial active duty for training (IADT) on 5 February 2008.  He successfully completed training and he was awarded MOS 21W.  He was honorably released from IADT on 27 June 2008 to the control of the CAARNG.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he completed 4 months and 23 days of creditable active service during this period of service. 

8.  He was ordered to active duty as a member of the CAARNG in support of Operation Enduring Freedom (OEF) and he entered active duty on 1 December 2008.  He served in Kosovo from 14 February to 14 November 2009.  He was released from active duty on 10 December 2009 to the control of the CAARNG.
The DD Form 214 he was issued for this period of service shows he completed 1 year and 10 days of creditable active service during this period of service.

9.  The applicant provides numerous pages of email dated during his deployment to Kosovo, wherein they show he repeatedly contacted the CAARNG Bonus and Incentives Manager, MSG Jxxxx, and other members of the CAARNG in regard to payment of his student loans under the SLRP.  He was repeatedly reassured his paperwork was being tracked and was being "taken care of." 

10.  The applicant provides a letter to his Congresswoman, dated 8 July 2010, from the Office of the Adjutant General, CAARNG, wherein a representative with that office stated the applicant's request for assistance in obtaining payment under the SLRP was sent to the CAARNG Accession Task Force (ATF).  The ATF stated he was not entitled to payment of his American Education Services (AES) student loans as they were private loans and not authorized under the SLRP.  Although a payment to his AES loan had previously been made, the ATF had since implemented system safeguards to ensure timely payment of all authorized students loans under the SLRP.

11.  He also provides a statement of support, dated 25 April 2013, from the Legal Assistant Division, CAARNG, wherein a Judge Advocate stated, in part, the applicant was fully eligible to receive SLRP benefits upon his enlistment.  The issue of eligibility for payment revolved solely around the status of his loans as private rather than federal loans.  He further stated:

	a.  Relying on his recruiter's expertise and knowledge, the applicant, in good faith, believed his loans were eligible under the SLRP.  If he was told his private loans were not eligible under the SLRP, he could have consolidated the private loans into federal qualifying loans (emphasis added).  Trusting the private loans would be paid, he used his own money to pay off his single federal loan in an effort to manage and pay down the higher interest loan.

	b.  He was in regular contact with MSG Jxxxx who walked him through the process and collected the necessary paperwork.  At no point was the eligibility of the private loans raised.  MSG Jxxxx is currently serving a prison sentence for her mishandling of the incentives and pled guilty to 15 million dollars of damages spanning 2007 - 2009.

	c.  In a previous Army Board of Correction of Military Records (ABCMR) case, AR20110016526, private loans [of a member of the CAARNG] were allowed to be paid as eligible federal loans.  In the interest of justice, the applicant's private loan should be made eligible and the $4,481.26 being sought as recoupment should be excused.

12.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel and Policy Division, National Guard Bureau (NGB), wherein the NGB recommend approval of the applicant's request for entitlement to the SLRP in the amount of $20,000, payment of his private loans be made eligible for repayment, and the $4,481.26 being sought as recoupment be excused.  The advisory official opined:

	a.  The applicant enlisted in the CAARNG with a 6-year NPS SLRP contract on 23 January 2008 and at that time, he was eligible for an incentive not to exceed $20,000.

	b.  Title  10, U.S. Code (USC), section 16301, was amended on 28 January 2008 to include private loans into the SLRP program but was not implemented by the Department of the Army until 29 May 2008.  There was no statutory authority to pay private education loans at the time of his enlistment on 23 January 2008.

	c.  Due to no fault of the applicant, the MEPS Guidance Counselors promised and contracted the applicant for payment of loans that were ineligible for payment under the SLRP.  The applicant kept his end of the contractual obligation based on guidance he received during his enlistment process. 

	d.  The payment of his non-federal private loans were the result of administrative error.  This was not fault of the Soldier and he should not be penalized for error that was beyond his control.  The enclosed memorandum from the NGB, dated 20 September 2013, stated "as a matter of equity and good conscience and to the best interests of the United States…" supports the Soldier's request and their recommendation.

	e.  The applicant kept his end of the contractual obligation and through no fault of his own the MEPS contracted his SLRP for an ineligible loan.  The State concurred with the recommendation.

13.  The ABCMR in Docket Number AR20110016526, dated 8 November 2012, the applicant requested that a private student loan in the amount of $28,612.80 be repaid under the SLRP.  He had enlisted in the CAARNG as an NPS applicant on 28 April 2009 under the SLRP not to exceed $50,000.

14.  The analyst found:

	a.  The applicant entered into an enlistment contract that included authorization for SLRP benefits not to exceed $50,000.00 in good faith; however, through no fault of his own his loan was later discovered to be ineligible under the SLRP.


	b.  By law, the Secretary concerned may authorize the SLRP to eligible Soldiers in conjunction with enlistment/reenlistment in the Selected Reserve.  The law allows the Secretary concerned the latitude in establishing the criteria and eligibility for the SLRP.  The governing regulation stipulates that guidance counselors are required to verify the applicants' eligibility for enlistment and counsel applicants who failed to meet specific qualifications for MOS, options, and assignments, for which they applied and advise them of all other available options that would still meet the applicants' needs, wants, and desires as well as the needs of the Army.

	c.  His record should be corrected to show his SLRP Addendum was amended to include the statement, "If you enlist for the SLRP and the government fails to verify that you meet the eligibility criteria for entitlement to the SLRP, and such failure results in nonpayment of the loan by the SLRP or the repayment or default of the loan, the ABCMR may pay the loan, 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 under the SLRP.

	d.  His request was granted and his records were corrected accordingly.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, U.S. Army Reserve, and ARNG.

16.  Army Regulation 601-210, chapter 6, section II, contains guidance for the guidance counselor processing phase.  It states that guidance counselors will verify the applicants' eligibility for enlistment and counsel applicants who failed to meet specific qualification for MOS, options, and assignments for which they applied and advise them of all other available options that would still meet the applicants' needs, wants, and desires, as well at the needs of the Army.

17.  Army Regulation 135-7 (Incentive Programs) restricts the SLRP to those Reserve Soldiers who either enlist or reenlist for a skill or unit approved by the Department of the Army and disseminated to the field by a list of MOS's and units which is updated on a periodic basis.  This educational incentive may only be elected at the time of enlistment or reenlistment.  This incentive pays a limited sum of money to a lending institution on the anniversary date of an enlistment or reenlistment.  These payments continue on a yearly basis unless the Soldier loses eligibility by no longer serving in the approved MOS or unit.

18.  The SLRP provides for the repayment by the Government of a designated portion of any outstanding student loan(s) secured after 1 October 1975.  The loan amount to be repaid is 15 percent of the original balance of the loan plus accrued interest not paid by the Department of Education, or $500.00 plus the accrued interest not paid by the Department of the Education, whichever is greater.  Payments will be made for each year of satisfactory service in the Selected Reserve.  

19.  To be eligible for the SLRP incentive, a person must contractually obligate himself/herself to serve satisfactorily, must serve in a Reserve unit for a full term of the contractual agreement, and must further obligate himself or herself to continue to serve in the same component and the same MOS unless excused for the convenience of the Government.  Each completed satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan that is at least 1 year old may then be paid in accordance with the terms of this educational enlistment incentive.

20.  Title 10, USC, section 1552, the law which provides for the Board, states, "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 applicant's request for correction of his records to show he is eligible for the SLRP in the amount of $20,000 as stated in his enlistment contract has been carefully considered.

2.  By law, the Secretary concerned may authorize the SLRP to eligible Soldiers in conjunction with enlistment/reenlistment in the Selected Reserve.  The law allows the Secretary concerned the latitude in establishing the criteria and eligibility for the SLRP.  The governing regulation stipulates that guidance counselors are required to verify the applicants' eligibility for enlistment and counsel applicants who failed to meet specific qualifications for MOS, options, and assignments, for which they applied and advise them of all other available options that would still meet the applicants' needs, wants, and desires as well as the needs of the Army.

3.  The evidence of record confirms the applicant, in good faith, entered into an enlistment contract on 23 January 2008 that included authorization for SLRP benefits not to exceed $20,000.  However, through no fault of his own, his loans were not paid in a timely manner resulting in his making payments on some of his loans and paying off his federal loan in order not to default on the loans.  In addition, his private loans were later discovered to be ineligible under the SLRP.  

4.  The evidence of record also confirms many misrepresentations, much deceit, and many errors in the processing of his SLRP Addendum and payment of his loans under the SLRP were made by the CAARNG Bonus and Incentives Manager.  

5.  In view of the facts of this case, it would be appropriate and serve the interest of justice and equity to correct his record by showing the Army authorized him to receive the SLRP benefit in question as an exception to policy and to pay him any amounts due based on authorized qualifying student loans up to the amount of $20,000.

6.  The applicant's military records should be corrected to show his SLRP Addendum was amended to include the statement, "If you enlist for the SLRP and the government fails to verify that you meet the eligibility criteria for entitlement to the SLRP, and such failure results in nonpayment of the loan by the SLRP or the repayment or default of the loan, the ABCMR may pay the loan, 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 under the SLRP.

BOARD VOTE:

__X___  ___X_____  _____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

	a.  amending Annex L to his DD Form 4, dated 23 January 2008, to include the statement, "If you enlist for the SLRP and the government fails to verify that you meet the eligibility criteria for entitlement to the SLRP, and such failure results in nonpayment of the loan by the SLRP 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 Title 10, U.S. Code, section 1552"; and

	b.  showing he is authorized the SLRP benefit as written in his enlistment contract, dated 23 January 2008, as amended by this correction and paying him in accordance with his SLRP Addendum the amount of the loans he has repaid up to the amount of $20,000.




      _______ _  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)                                         AR20130018428





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ABCMR Record of Proceedings (cont)                                         AR20130018428



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