PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           26 September 2000                   
	DOCKET NUMBER:   AR1999034180

	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 
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer 		Member	
	Mr. Thomas F. Baxter		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 repayment of health education assistance loans (HEAL) in the amounts of $4,954.00 and $11,711.00 (total of $16, 665.00). 

3.  The applicant states in effect that he was misled by recruiting personnel who informed him that all the student loans for which he provided data [promissory notes] would be paid.  He stated that he requested documentation and assurance that all his loans would be covered by his enlistment agreement, and was given that documentation and assurance. 

4.  He was informed by the Sallie Mae Servicing Corporation, the lender for his HEAL, that those loans were not being repaid.  He was advised by the Chief of the Education Incentives Branch in the Total Army Personnel Command (PERSCOM) to reapply for repayment of those loans.  He did, but was then informed that those HEAL were not loans that could be repaid under the Student Loan Repayment Program (SLRP) contract.  A legal advisor at Fort Polk found that the MEPS station had not forwarded those HEAL [promissory notes] to the Education Incentives Branch.

5.  The applicant states that from the time he submitted his loan data to his recruiter in July 1997, until the time he left the Omaha MEPS in November of that year, he was continually assured that his loans would be repaid if he fulfilled his enlistment contract.  He went on to say that it appeared that no one considered confirming the information.  He states that he was misled, that he entered into a legal contract with the Army under the agreement that his loans would be repaid. And it was not until completion of nearly half of his service, that he was informed that only one of his student loans would be repaid.  If he had known this information prior to his enlistment, he might have sought opportunities in the civilian work force; although, he might have chosen to enlist anyway.  He stated that he has proven to be an outstanding soldier, and continually tried to be a fair person who looks out for the interest of soldiers.  He is asking that this Board do the same by repaying his loans.

6.  The applicant’s military records show that he enlisted in the Army Reserve delayed entry program (DEP) on 31 July 1997 at the Chicago MEPS.  His enlistment contract shows that he enlisted under the incentive enlistment program (LRP), and that the government would pay up to $65,000.00 of his student loans.  He signed a statement of understanding on 31 July 1997, the pertinent portion which states:  “I understand that under this program (LRP) that the government will repay a designated portion of any loan I incurred that was made, insured or guaranteed, under Part B of the Higher Education Act of 1975 (Guaranteed Student Loan) or any loan under Part E of such act (National Direct Student Loan) after 1 October 1975 and before I enlist into the Regular Army.”  He was discharged from that program at the Omaha MEPS upon his enlistment for 3 years in the Regular Army on 5 November 1997.

7.  Three promissory notes that the applicant submits with his request, and which he stated were provided recruiting personnel, show that two of the notes were loans incurred under the Federal Health Education Assistance Loan Program, one for $4954.00, and one for $11,711.00; and the remaining note was a loan incurred under the Federal Stafford Loan for $18,500.  All notes were signed in August and October of 1995.  

8.  In a 6 May 1999 letter to the applicant, the Chief of the Education Incentives Branch notified him that his HEAL did not qualify for repayment under the loan repayment program, and should he feel that an injustice had occurred to apply to this Board for relief.

9.  In response to an inquiry from the applicant’s Fort Polk legal advisor, the Chief of the Education Incentives Branch, stated that he (the legal advisor) might want to ask the applicant if he had his promissory notes when he went to the recruiting battalion or to the MEPS.  She stated that a soldier must provide the Army the promissory note before enlistment.  The Recruiting Command must forward to the Education Incentives Branch a copy of the loan promissory note.  Omaha MEPS only submitted a copy of the Stafford loan promissory note, indicating that that loan was the only loan verified as eligible for the LRP at the time of enlistment.

10.  In the processing of this application an advisory opinion (COPY ATTACHED) was obtained from the Chief of the Education Incentives Branch, who stated that Public Law confirms loans eligible for repayment, and that there was no exceptions to the law, and payment could not be made toward his HEAL.  The applicant was provided a copy of the advisory opinion for his comment and possible rebuttal on 24 January 2000.  He responded by stating that his recruiter informed him that all of his loans would be repaid, both the Stafford loans and the HEAL.  The applicant enclosed with his response a letter from his former recruiter substantiating the applicant’s statement (COPY ATTACHED).

11.  The LRP is one of several incentive programs offered by the Army under the provisions of Public Law 99-145 and the Higher Education Act of 1965, Title IV, Part B, D, or E.  In order to be eligible for payment of a loan under the LRP, the loan must have been made, insured, or guaranteed under the Higher Education Act of 1965, Title IV, Part B, D, or E, and prior to entering on active duty.  The LRP is an enlistment incentive that must be included in the enlistment agreement.  The Enlisted Incentives and Counseling Branch (EICB) is responsible for operating the LRP.  MEPS forwards documentation to EICB for all soldiers electing LRP as an incentive.  EICB forwards application packets to potentially eligible LRP enrollees no later than the sixth month of active duty.  In some cases, the proper documentation is not received from MEPS; therefore, EICB will request the necessary documentation from the soldier.

CONCLUSIONS:

1.  The applicant states that he was assured that all his loans would be repaid by the government.  He states that he provided all his promissory notes to recruiting personnel. The Education Incentives Branch did receive the promissory note concerning the applicant’s Stafford Loan, and payments have been made.  That branch did not receive promissory notes on the applicant’s HEAL.  The applicant states that a legal advisor at Fort Polk discovered that the Omaha MEPS station did not forward his HEAL to the Education Incentives Branch. The applicant also states that he still might have chosen to enlist had he been informed that all his loans would not be repaid.     

2.  The applicant’s contention that he was promised that all his student loans, to include his HEAL, would be paid is credible, and his contention is supported by the recruiter who enlisted him.  Consequently, the Board agrees with the applicant that he made a contract in good faith with the government that he would enlist in the Army for 3 years, with the understanding that the government would pay all his student loans, to include HEAL.

3.  Because the LRP limits the type of loans which can be repaid under the provisions of law, the applicant’s HEAL cannot be disbursed to his lending institution.  Therefore, it would be appropriate to have the DFAS remit payment to the applicant under Title 10, USC 1552, of the total amount of his loan to which he is entitled at the appropriate rate and time.  The applicant will be required to submit the appropriate evidence (promissory notes, etc.) to DFAS to determine the amount due.  

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

RECOMMENDATION:

That the applicant’s DA Form 3286-66 be modified to read: 

     a.  If a student loan is accepted by the officials processing you for enlistment as payable under the LRP 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 LRP or the repayment or default of the loan, the Army Board for Correction of Military Records (ABCMR) may pay the loan, at its sole discretion, in accordance with 10 USC 1552; and

     b.  That as a result of the foregoing correction and in accordance with            10 USC 1552, the DFAS shall remit payment to the applicant of the total amount of his loan to which he is entitled as a result of this correction at the appropriate rate and time.  The applicant will be required to submit the appropriate evidence (promissory notes, etc.) to DFAS to determine the amount due. 

BOARD VOTE:  

___tfb___  ___mhm_  ___aao__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999034180	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000926	
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.  1026	112.00	
2.		
3.		
4.		
5.		
6.