MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            24 March 1999 
	DOCKET NUMBER:   AC98-11684

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his Student Loan Repayment Program (SLRP) contract be honored as written.

APPLICANT STATES:  Through counsel, that he was promised the SLRP in writing by an authorized agent of the Army.  He contends that the Army is obligated under law to make good on that contract.  He also states that the error made by the applicant’s recruiter in offering him the SLRP is tantamount to misconduct punishable under the UCMJ.  Counsel then outlines how the applicant requested an exception to policy to have his loans paid under the SLRP and how that request was denied by Deputy Chief of Staff for Personnel (DCSPER).  Counsel cites several legal precedents in support of his argument.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was derived from information submitted by the applicant and his counsel and from military law and regulation.

He enlisted in the USAR for assignment to a troop program unit on 26 April 1993.  At that time he executed an SLRP addendum for $10,000.00 in loan repayment.  That addendum was properly countersigned by his recruiter.

On 28 May 1997 the applicant wrote his commander informing him that he had been informed that his loans were not payable under the SLRP and that his one SLRP payment was being recouped from him.  He continued that he understood that he could elect discharge due to his unfulfilled enlistment commitment but declined that option, stating that he wanted his loans paid under the SLRP.

The applicant’s commander forwarded a request for an exception to policy to have the applicant’s loans paid under the SLRP on 1 June 1997.  The Chief, Army Reserve (CAR) recommended disapproval of that request based on the fact that his occupational specialty, administrative specialist, was not approved for the SLRP.  However, the CAR recommended that the applicant’s debt, incurred as a result of the erroneous SLRP payment, be remitted.  

On 11 July 1997 the Deputy Chief of Staff for Personnel (DCSPER) denied the applicant’s commander’s request for an exception to policy and explained the options available to the applicant and how those options could provide the loan repayment sought by the applicant.  However, the DCSPER waived the debt incurred by the applicant as a result of his having received one SLRP payment.

On the date the applicant submitted his request to the Board he was a member of the USAR in pay grade E-5.

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.  The maximum amount of loans against which the 15 percent is computed will not exceed $10,000.  This equates to a maximum annual repayment of $1,500 plus interest.  If the amount set for repayment is less than $500.00, then $500.00 becomes the calculated amount for repayment that year.  To be eligible for the SLRP incentive, a person must contractually obligate himself or herself to serve satisfactorily in a unit or MOS which has been approved by the Department as SLRP eligible, 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.  Entitlement to the SLRP will stop if the soldier is separated from his or her unit.  Each complete satisfactory year of service performed under this SLRP agreement establishes an anniversary date.  Any qualifying loan which is at least a year old may then be paid in accordance with the terms of this educational enlistment incentive.  The Government will not reimburse a soldier if he or she pays off a student loan.  The Government will only pay the lending institution.

Army Regulation 135-178, paragraph 9-10, defective enlistment, states that when recruiting personnel offers an incentive to an individual for which the individual was not qualified, the soldier may either elect to be discharged or to remain in the reserves without the incentive.

The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was erroneously contracted for the SLRP.  When that error was brought to the attention of the Army Staff, the debt he had incurred as a result of an erroneous SLRP payment was remitted and he was offered the opportunity to elect discharge and reenlistment in an SLRP eligible MOS.

2.  The Board considers that solution fair and equitable.  The SLRP is used to attract potential enlistees to units and MOS’s which are understrength.  To use the SLRP in a different fashion would be in violation of the Congressional intent for those funds.  In addition, to give the applicant the SLRP and not give it to other reservists who enlisted to be an administrative specialist would not be fair to those other reservists.

3.  Although the recruiter was acting in his official capacity when he executed the SLRP addendum with the applicant, the Comptroller General has held that the Army is not responsible for the erroneous actions by its employees.

4.  The Board notes that the Army must limit the choice of remedies available to a soldier for a defective enlistment to discharge (thereby voiding the unexecuted portion of the defective contract) or waiving the defective commitment.  Because of the nature of the Army, honoring those commitments is not normally possible.  Monetary benefits are governed by law and cannot be circumvented without Congress providing the Army methods of doing so.  Non-monetary commitments, such as occupational specialties, cannot normally be honored due to safety reasons.  The Army cannot have, for example, a soldier who is color blind as a cook (could not see colors which would show spoilage) or a military policeman (could not make out traffic signals).

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JEV___  __RWA__  __ALR__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999003516	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.