PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002070401

	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. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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 that he be authorized repayment of his student loans as authorized by the Student Loan Repayment Program (SLRP) for which he enlisted.

3.  The applicant states that his enlistment provided for the SLRP in the amount of $10,000 but it was denied him because of recruiter error.  He was only 17 years old and required his parents’ consent, which they gave only because of the SLRP.  He reported to military occupational specialty (MOS) training on 9 June 1995 as ordered.  However, because his knee made a cracking noise when asked to squat he was delayed.  He assumed when he started training later it was for the same school for which he had enlisted.  He commenced his civilian education in January 1996.  His loans came up for repayment and he discovered for the first time that he was not entitled to the SLRP.  

4.  The applicant’s military records show that he was born on 27 April 1977.  He turned age 17 on 27 April 1994.

5.  On 19 May 1994, the applicant signed a two-paragraph Enlistment (Cash) Bonus Contingent Enlistment Addendum in which he acknowledged that he understood that various Army enlistment incentives, such as enlistment bonuses, must be approved by Congress.  He understood that his entitlement to an enlistment bonus was contingent upon Congress both authorizing and funding the enlistment bonus program.  The possibility of receiving an enlistment bonus was a consideration in his enlistment decision.  He understood, however, that if Congress failed to authorize and fund the enlistment bonus program, his enlistment contract to serve in the Army National Guard (ARNG) was still valid and enforceable.  

6.  The applicant enlisted in the ARNG on 25 May 1994.  His Student Loan Repayment Program Addendum, DA Form 5261-4-R, shows that he contracted for completion of initial active duty for training (IADT) and qualification in military occupational specialty (MOS) 31V which Headquarters, Department of the Army approved for a maximum of $10,000 in loan repayments.  His Selected Reserve Incentive Program - Enlistment Bonus Addendum, DA Form 5261-R, shows he enlisted for an enlistment bonus of $1,500.00.

7.  Orders 29-2, Military Entrance Processing Station, Springfield, MA dated        9 February 1995 ordered the applicant to IADT with a reporting date of 9 June 1995 for advanced individual training (AIT) in MOS 31M.  

8.  Orders 76-16, Military Entrance Processing Station, Springfield, MA dated     14 April 1995 ordered the applicant to IADT with a reporting date of 19 June 1995 for AIT in MOS 31R.

9.  Orders 156-16, Military Entrance Processing Station, Springfield, MA dated    7 August 1995 ordered the applicant to IADT with a reporting date of 14 August 1995 for AIT in MOS 45E.  He was released from IADT on 2 November 1995 after completing 45E training.

10.  Beginning in 1996, the applicant contracted for several student loans.  He graduated from the Golf Academy of the South (an accredited institution) in 1999.

11.  On an unknown date, the Vermont ARNG Military Personnel Officer requested authority to award the applicant SLRP and enlistment bonus benefits.  He noted that when the recruiter first approached the applicant, his chosen assignment was in both a critical skill and bonus unit.  However, the bonus units and critical skills lists changed on 1 April 1994 and the recruiter failed to check the new lists.  He assumed the bonus status for the applicant had not changed and processed his enlistment according to his previously stated desires even though his assignment no longer provided him with Selected Reserve Incentive Program (SRIP) eligibility.  Upon the applicant's return from AIT almost two years later, he requested his unit process his initial bonus payment only to find out he was not eligible for the program.  Because the inquiry related to a cash bonus, only that aspect of the SRIP was reviewed.  No determination was made regarding SLRP eligibility at that time.  The applicant then accumulated a substantial debt to attend college.  Upon his return he requested SLRP benefits.  Again he was informed he was not eligible for those benefits.  The Military Personnel Officer noted that the Vermont ARNG recruiter failed to take the necessary steps that could have allowed them to avoid the situation.  

12.  On an unknown date, the National Guard Bureau (NGB) responded that the bonus program was suspended for the ARNG from 7 April to 30 September 1994.  No one enlisting during that period was authorized a bonus or SLRP.  The request to authorize the applicant a bonus and SLRP could not be approved.

13.  On 24 May 2000, the applicant was discharged from the ARNG and transferred to the U. S. Army Control Group (Reinforcement) to complete his obligation.

14.  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. 
15.  To be eligible for the SLRP incentive, a person must contractually obligate himself or 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.  Entitlement to the SLRP will stop if the soldier is separated from the Selected Reserve.  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.

16.  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.

17.  In the processing of this case, information was requested from NGB.  The history behind the applicant's training in MOS 45E rather than 31V was requested.  Information as to whether or not MOS 45E was authorized the SLRP during the pertinent time frame was also requested.  NGB responded that MOSs identified for a bonus and SLRP from 1 October 1993 through 31 March 1994 included 31V, 45K, and 45N.  The MOSs identified for a bonus and SLRP effective 1 April 1994 included 45K and 45N but not 45E or any 31 series MOSs. The bonus list had been published on 24 January 1994.  The Vermont ARNG provided the history behind the applicant's training in MOS 45E.

18.  A copy of NGB's response was provided to the applicant for comment or rebuttal.  In reply, a 2 October 2002 memorandum from the Vermont ARNG Recruiting and Retention Noncommissioned Officer was provided.  That individual noted that the applicant was directed by an ARNG recruiter into enlistment and then that recruiter was relieved of recruiting duties.  The applicant then missed his ship date due to a knee injury and was placed in an MOS just to get him shipped.  The applicant was never briefed on the ramifications of his SLRP if he changed MOSs.

19.  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.”

CONCLUSIONS:

1.  There is evidence of Government error in this case.

2.  Legally, the applicant is not entitled to the SLRP.  Neither the MOS for which he enlisted (31V) nor the MOS in which he finally trained (45E) was authorized the SLRP effective 1 April 1994 (almost 2 months before he enlisted and almost one month before he turned 17 and was eligible to enlist).  In addition, both the entire SLRP and enlistment bonus programs were suspended from 7 April to    30 September 1994 because Congress had not authorized and/or funded the programs.

3.  The applicant had signed an acknowledgement that his cash enlistment bonus incentive was contingent upon Congress authorizing and funding the program and that his enlistment contract would still be valid even if it did not authorize and fund it.  However, although the acknowledgement he signed mentioned "various Army enlistment incentives," it specifically cited only the enlistment bonus in several places on that short acknowledgement.  The SLRP was not mentioned once.  It is not reasonable to presume that a 17-year old non-prior service applicant for enlistment would know that the Student Loan Repayment Program is considered an enlistment incentive.  

4.  The failure to pay the applicant's cash enlistment bonus was legally valid.  However, there appears to be an ethical and moral injustice to withholding the SLRP from the applicant.  His recruiter should have known four months before he enlisted the applicant that MOS 31V would no longer be eligible for the SLRP by the time the applicant met the age eligibility for enlistment and almost two months before he enlisted the applicant that the entire SLRP program was suspended.  Later, his recruiter or unit officials should have known that sending the applicant for AIT in any MOS other than the one for which he enlisted would have invalidated his entitlement to the SLRP (had his enlistment MOS otherwise been eligible for it).  The available evidence shows that the applicant's AIT MOS was changed not at his request but because the Vermont ARNG just wanted to "get him shipped" and he was never briefed on how this would affect his SLRP entitlement.  Government errors precluded him from requesting discharge as a result of a voided enlistment commitment and led to his incurring a substantial debt related to the SLRP.  

5.  As a matter of equity and in the best interest of the Army, it would be appropriate to show that the applicant is entitled to the SLRP for which he enlisted.

6.  The applicant’s military records may be corrected to show his DA Form   5261-4-R was amended to include the sentence “If the officials processing you for enlistment certify that the MOS for which you are enlisting entitles you to the SLRP and the Government fails to verify prior to your enlistment that the MOS actually is eligible for the SLRP and/or if the Government later sends you for AIT in a different MOS without first obtaining your consent and understanding that you will lose 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."  This would allow the Board to invoke that provision and pay the applicant or his lending institution (if the loan has not yet been repaid by the applicant) the amount his lending institutions would have been paid under the SLRP.

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

RECOMMENDATION:

1.  That the applicant’s military records be corrected to show his DA Form    5261-4-R was amended to include the sentence “If the officials processing you for enlistment certify that the MOS for which you are enlisting entitles you to the SLRP and the Government fails to verify prior to your enlistment that the MOS actually is eligible for the SLRP and/or if the Government later sends you for AIT in a different MOS without first obtaining your consent and understanding that you will lose 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."  

2.  That all of the Department of the Army records related to this case be corrected by repaying the applicant’s student loans (either directly to the lending institution or to the applicant if the loans have already been paid by the applicant) per his enlistment for the SLRP to which he would have been entitled had MOS 31V been included on the 1 April - 30 September 1994 SRIP, had Congress authorized and funded the SLRP for that period, and had he trained in and been awarded that MOS.

BOARD VOTE:  

__RJW__  __RWA__  _ _JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond J. Wagner__
		        CHAIRPERSON

INDEX

CASE ID	AR2002070401	
SUFFIX		
RECON		
DATE BOARDED	2002/10/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.