BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20140001361 


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 that his Student Loan Repayment Program (SLRP) benefits be reinstated.

2.  The applicant states, in effect, that he has upheld his portion of the SLRP contract and believes that the National Guard should keep their end.  He was contemplating going active duty and received a conditional release from the Arizona Army National Guard (AZARNG); however, he found out about the SLRP and decided to stay in the AZARNG after talking to education office officials who informed him that his loans were eligible.  The first payment was made, but while he was in flight school he was notified that his student loans were not qualifying loans.  He accepted a commission as an aviation warrant officer and was not eligible for an officer accession bonus because he has the SLRP benefits.  He was allowed to keep his first installment but cannot receive any more and as a result is struggling to find employment that will allow him to make his payments on $80,000 in student loans.       

3.  The applicant provides a one-page letter explaining his application and copies of his request for an exception to policy. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the AZARNG on 25 August 2006 for a period of 8 years, training as an infantryman, and a $20,000 enlistment bonus.
2.  On 23 October 2009, he extended his enlistment for a period of 3 years and    2 months and the SLRP to a maximum amount of $50,000.  His first SLRP payment was disbursed in Fiscal Year 2011 in the amount of $7,500. 

3.  On 28 September 2011, he was appointed as an aviation warrant officer one in the AZARNG.  He was promoted to chief warrant officer two on 28 September 2013.

4.  Although the applicant has not provided documentation related to the cancellation of his SLRP benefits, he has provided the response from the National Guard Bureau (NGB) denying his request for an exception to policy to retain his benefits.

5.  On 27 November 2013, the NGB denied his request for an exception to policy because the applicant’s loans were not qualifying loans and because his bonus addendum was not properly completed.  The NGB directed that his incentive be terminated without recoupment.

6.  The SLRP provisions state, in pertinent part, that the applicant would have understood he must disenroll from the Montgomery GI Bill (MGIB) and that if he failed to do this he would not be eligible for the SLRP.  It also indicated that the applicant would have understood that the government will repay a designated portion of any loan he incurred that was made, insured or guaranteed under Part B (Federal Family Education Loan Program), Part D William D. Ford Direct Loan Program), or Part E (Federal Perkins Loans) of the Higher Education Act of 1965, after 1 October 1975. 

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

8.  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).  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.

9.  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 MGIB, verifying that members have qualifying loans, and advising members of any loan that is not eligible.

10.  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 LRP, which includes any factors that may disqualify them from receiving the LRP benefit, and ensuring that the applicant’s acknowledgement of this fact is also recorded in the Remarks Section of the DD Form 1966.

11.  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 military occupational specialties.  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 (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, 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.

12.  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.  It appears that the applicant’s student loans did not qualify for repayment under the SLRP.  However, this is not the overriding factor in this case given the equity considerations and the resultant injustice.

2.  The applicant’s records show that he extended his enlistment in order to participate in the SLRP and that at least one payment was made under that program to the lending institution. 

3.  The applicant’s extension of enlistment and addendum clearly shows that the responsible recruiting officials failed to make reference to any loans ineligible for payment under the SLRP.

4.  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. 
  
5.  In view of the facts of this case, it appears that 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 his own.  Given the failure on the part of Government officials to follow its own regulations during the applicant's enlistment processing, it is appropriate to rectify the resultant injustice at this time.

6.  In doing so, the applicant's military records may be corrected to show on his addendum that it was amended to include the sentence “If a student loan is accepted by the official processing the Soldier for enlistment as payable under the U.S. Army SLRP 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 Title 10, U.S. Code, section 1552."  This would allow the Board to invoke that provision and pay him the amount the lending institutions would have been paid for his student loans, not to exceed $50,000.00.
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 his Bonus Addendum to include the sentence “If a student loan is accepted by the official processing the Soldier for enlistment as payable under the U.S. Army SLRP 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 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."

2.  As a result of the foregoing correction, the Defense Finance and Accounting Service shall remit payment to the applicant $42,500 toward the loans that did not previously qualify for repayment.  This amount, when combined with the $7,500 in loans already authorized for repayment under the SLRP, will provide the applicant loan repayments totaling $50,000.00, the maximum amount allowed by the SLRP.  If required, the applicant will submit the appropriate evidence (e.g., promissory notes, etc.) to the Defense Finance and Accounting Service.  In addition, if the applicant does not complete the original term of his enlistment (in whatever status he happens to serve), the Defense Finance and Accounting Service 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)                                         AR20140001361





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140001361



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1