PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 June 1999      
	DOCKET NUMBER:   AR1999017647

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

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be released from all contractual obligations with the Army and that his entitlement to the Student Loan Repayment Program (SLRP) be reinstituted in accordance with the original intent of his USAR enlistment contract.

3.  The applicant states, in effect, that he was released from active duty in August 1991 under the Army’s “Green to Gold” Program in order to attend college with a ROTC scholarship.  He notes that he was “induced to enter the active reserve program on the affirmative promise that [he] would be reimbursed for [his] student loans under the Student Loan Repayment Program.”  As part of his “enlistment processing” he was instructed to “relinquish [his] full-scholarship.”  He states that within 6 months of his enlistment in the reserves he was told he was “ineligible for SLRP” and immediately sought reinstatement of his ROTC scholarship.  He indicates his attempt was unsuccessful as his scholarship, which was competitive, had been “given to another student.”  The applicant states that he attempted to resolve his situation, including via the Inspector General and his congressional representative but ultimately was told that investigations into his recruiting action revealed only that the “recruiters had been negligent” but was inconclusive as to “motive….”

4.  Information available to the Board indicates the applicant initiated his application in 1995 and the Board first received it in 1997.  The original application included a copy of the lengthy IG investigation as well as copies of correspondence with the applicant’s congressional representatives.  While attempts were being made to secure copies of his service record, his application was forwarded to the Office of the Deputy Chief of Staff for Personnel (ODCSPER) for comments regarding the applicant’s entitlements under the SLRP and/or Green-to-Gold Program.  A favorable advisory opinion was received from the ODCSPER, however, attempts to secure copies of his military records were unsuccessful and as such key documents necessary to finalize his case were not available.  On 24 October 1997, after several unsuccessful attempts to contact the applicant, a copy of his application (minus the IG investigation) was returned to him without action.  The October 1997 letter included a copy of the favorable advisory opinion and asked that the applicant provide copies of his USAR enlistment documents as well as his commissioning document.  When he did not respond, his original application, including the IG investigation, was returned to St. Louis.

5.  On 20 March 1998 the applicant responded, via fax, to the October 1997 letter with copies of the requested documents and commented on information contained in the favorable advisory opinion.  He indicated, in effect, that he was still interested in being released from his military obligation and that he had accumulated approximately $15,000 in student loans.  He noted that while the advisory opinion recommended that his records be corrected to show entitlement to the SLRP from the time of his USAR enlistment until his date of commissioning (not to exceed $10,000), he was never informed that “the SLRP was subject to the period of [his USAR] enlistment only.”  He states that he was “clearly told that this program would repay [his] student loans and was never told that the amount would be prorated over the period of [his] enlistment.”

6.  Upon receipt of the applicant’s fax, a request was forwarded to St. Louis to retrieve the original 1995 application and associated documents, including the IG investigation.  In June 1998 officials in St. Louis informed the Board that they were unable to locate the file.  Over the course of the past year the Board’s staff has attempted to reconstruct the original application and piece together as much information as possible in order for the Board arrive at a fair and equitable determination.

7.  Reconstructed information shows that the applicant originally enlisted and entered active duty on 20 June 1985 and served continuously until 30 August 1991 when he was released from active duty as a result of being accepted “into a program leading to a commission or warrant officer appointment.”  He was discharged at Fort Lewis, Washington.  During his enlistment he performed duties as a Single Channel Radio Operator (specialty 31C).  At the time of his release from active duty, in pay grade E-5, he had completed 2 years of college with a combination of classes from the University of Maryland, Saint Martins College and a junior college in Washington.

8.  On 31 August 1991 the applicant enlisted in the Army Reserve for a period of 8 years “in pay grade CADET” although another document indicates he enlisted on 8 November 1991 as a member of the “Simultaneous Membership Program” with the 311 Logistics Command in Los Angeles, California.  The two enlistment documents (which are incomplete) were provided by the applicant in response to the October 1997 letter from the Board.

9.  The applicant indicated in his application that within 6 months of his enlistment he was notified that he was ineligible for participation in the SLRP.  The 8 July 1997 favorable advisory opinion, provided by the ODCSPER, indicates “when the applicant enlisted in the USAR, 8 Nov 91, DA Form 5261-4-R Jul 86 (SLRP addendum) and Reserve Component Update 22, 1 Jul 90, were used as SLRP guidance.  Neither, the SLRP addendum, nor AR 135-7 guidance denied SMP/ROTC participants’ from receiving SLRP benefits.”  The opinion also noted that the applicant’s previous enlisted specialty (31C) was eligible for the SLRP up to the amount of $10,000.  The opinion indicated that acceptance of a commission was cause for termination of SLRP benefits.  Finally, the opinion concluded that based on “statements provided by the Department of the Army Investigation [which is no longer available to Board], it is obvious that there was not a good understanding of how to assist the applicant” and the ODCSPER recommended the applicant’s USAR enlistment contract be amended to show that he enlisted in specialty 31C, was enrolled as a Simultaneous Membership Program participant, and granted SLRP benefits from the date of his enlistment until the date of his commission.  (Note:  The applicant was provided a copy of the advisory opinion and, as noted in paragraph 5 above, responded with his concerns in March 1998.)

10.  On 1 December 1993 the applicant was commissioned as a second lieutenant in the USAR following completion of studies at the University of Southern California.

11.  According to the applicant he remained active with a USAR aviation unit in Los Angeles until it was deactivated and he was transferred to the inactive reserve.  According to telephonic information received from officials at the Army Reserve Personnel Center in St. Louis, he was discharged from the USAR on 7 May 1997.

12.  In December 1999 the applicant provided copies of his outstanding student loans indicating that the “principal amount to be paid” was $14,766.07.  On 
3 February 1999 he indicated the “payoff balance” was $15,602.67 and as of 
27 May 1999 he noted that his “deferral period on [his] student loans” had ended and that he would begin to make payments in June 1999.

13.  Information received from managers of the SLRP accounts at Fort McCoy, Wisconsin indicate that based on the terms of the applicant’s SLRP contract (payment during the two years of USAR enlistment status), and copies of loan documents provided by the applicant, he would be entitled to only $2740.84, plus interest, in SLRP funds.  On 13 April 1999 the applicant was provided a copy of the information provided by official at Fort McCoy but has made no specific comments concerning that information.

14.  The Army’s “Green to Gold” program offers qualified enlisted soldiers two-, three- or four-year ROTC scholarships to attend college.  “Green to Gold” scholarship winners receive tuition support, additional money for textbooks, supplies, and equipment, and a monthly stipend of $150.00 for up to 10 months each school year.  (Note:  Tuition for the 1998-1999 school year at the University of Southern California was $21,000.00.)  Following graduation, all scholarship students are required to serve in the military for a period of 8 years.  This obligation may be fulfilled by serving two to four years on active duty, followed by four to six years service as citizen soldiers in the Reserve Components.  Nonscholarship graduates may serve three years on active duty and five years as citizen soldiers, or they may select or be selected to fulfill their total military obligation as citizen soldiers.  (Note:  Active USAR soldiers, in pay grade E-5, would have received approximately $200.00 in pay for drill attendance each month.) 

15.  Army Regulation 135-7 establishes the policies and provisions for administration of the Student Loan Repayment Program.  Public Law 99-145 authorizes student loan repayment for qualified Selected Reserve enlisted personnel upon signing a contractual agreement for a specified term of service in the Selected Reserve.  The designated maximum portion authorized for loan repayment is $10,000.00 for a soldier who contracts for a MOS that has not been established as critical and $20,000.00 for a critical MOS.  For each year of satisfactory service in the Selected Reserve the loan amount to be repaid will be 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 Education, whichever is greater.  Entitlement to the SLRP terminates when a soldier separates from the Selected Reserve as an enlisted person (including those who accept appointments as commissioned officers).  By law (title 10, U.S. Code, section 2171), the Government cannot reimburse a soldier if he or she pays off a student loan.  The Government can only pay the lending institution.

16.  Army Regulation 601-210 states that the objective of the Simultaneous Membership Program is to increase the number of officers entering the Selected Reserve from the ROTC program.  It is a voluntary officer-training program that allows enlisted persons assigned to a Troop Program Unit (TPU) of the USAR to enter the Advance Course of the ROTC program and for those cadets to be assigned to TPUs and serve as officer trainees.  Except for recipients of the Reserve Forces Duty scholarship and Guaranteed Reserve Forces Duty scholarship, participants in other Army ROTC scholarship (including Green to Gold) programs are not eligible to take part in the SMP.

17.  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, allowance, 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.”

CONCLUSIONS:

1.  While it is certainly unfortunate that neither the applicant’s complete military personnel file nor copies of the Inspector General investigation are no longer available, it is clear from available evidence that the applicant was the recipient of a 2 year ROTC scholarship under the Army’s Green to Gold Program.  It is apparent that he forfeited this scholarship in order to become a member of the Army Reserve under the Simultaneous Membership Program with the understanding that his student loans would be reimbursed via the Student Loan Repayment Program.  Although the IG investigation was unable to determine the USAR recruiters “motive” for allowing the applicant to waive his scholarship and enlist in the USAR it did, as confirmed by statements in the ODSCPER opinion, conclude that “it was obvious that there was not a good understanding of how to assist the applicant” and recommended his records be corrected accordingly.

2.  Unfortunately, if the applicant’s records were merely corrected in accordance with the ODSCPER advisory opinion, he would receive less than $3000.00 (plus interest) towards his more than $15,000.00 in accumulated student loans.  The applicant, it appears, in good faith enlisted in the USAR with the expectation of receiving reimbursement for his student loans up to the full amount of the SLRP entitlement of $10,000.00.

3.  The Board concurs with the applicant’s contention that he would not have knowingly or willing forfeited a college scholarship which would have paid his entire tuition expenses for 2 years without a belief that his USAR enlistment incentive (the SLRP) would at least cover that same expense.  It is the Board’s contention that the applicant may have been enticed into enlisting in the USAR with the belief that such an enlistment would essentially still cover his college tuition expenses (via the SLRP versus the ROTC scholarship) while enabling him to receive more money per month based on his weekend drill days then he would have received via the monthly ROTC stipend.

4.  The obvious lack of knowledge that the applicant and his USAR recruiters brought to his USAR enlistment process has created a financial injustice for the applicant which can not be overcome by merely correcting his records in accordance with the ODCSPER opinion.  Rather, the applicant’s military records should be corrected to alter his USAR enlistment document to include the sentence “If a student loan is accepted by the officials processing you for enlistment, or subsequent to enlistment by the Army Board for Correction of Military Records (ABCMR), as payable under the SLRP and it is later discovered that it is not payable because the loan amount exceeds the amount payable during the term of enlistment, the ABCMR may pay the loan(s), or any portion of the loan(s), at its sole discretion, in accordance with Title 10, U.S.C., Section 1552.”  This would allow the Board to invoke that provision and pay him the amount his lending institutions would have been paid under the SLRP if his entitlement would not have terminated upon his acceptance of the USAR commission.  The Board notes that had his entitlement not terminated he would have been entitled to up to $10,000.00 in student loan reimbursement.

5.  Because the SLRP limits the amount of funds it can disburse to the applicant’s lending institutions to the amount entitled to based on his two years of enlisted service it would be more efficient to have the original entitlement of $10,000.00 paid directly to the applicant by the DFAS under Title 10, U.S.C., Section 1552.

6.  The applicant was discharged from the USAR in 1997 so there is no need to act on that portion of his request that asked that his association with the USAR be terminated.

7.  In view of the foregoing, and in the interest of justice, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that his USAR enlistment documents be corrected to include the statement “If a student loan is accepted by the officials processing you for enlistment, or subsequent to enlistment by the Army Board for Correction of Military Records (ABCMR), as payable under the SLRP and it is later discovered that it is not payable because the loan amount exceeds the amount payable during the term of enlistment, the ABCMR may pay the loan(s), or any portion of the loan(s), at its sole discretion, in accordance with Title 10, U.S.C., Section 1552” and

b.  by showing that the ABCMR has invoked its prerogative under that altered SLRP statement and pay the individual concerned the amount of $10,000.00 that would have been paid to him under the terms of his original USAR enlistment contact had his entitlement not ceased as result of his change in status; under Title 10, U.S.C., section 1552.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__jlp___  __tap___  ___ewl__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999017647	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990617	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES           1.  128.00		
2.		
3.		
4.		
5.		
6.