RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2005
      DOCKET NUMBER:  AR20040010264


      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. Raymond Wagner                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests that the Army pay all his student
loans.

2.  The applicant states that he received a letter stating that four of his
student loans, totaling $45,454.17, did not qualify for repayment under the
loan repayment program (LRP).  In August 2003 he talked with a recruiting
sergeant in Capitola, California, who informed him about the LRP.  The
sergeant assembled a packet of information which included copies of all his
loan documentation and promissory notes.  He was assured that his loans
would be repaid.  On 15 September 2003 he was taken to the San Jose MEPS
(Military Entrance Processing Station).  The NCO (noncommissioned officer)
at MEPS told him that only certain jobs qualified for the LRP, but if he
chose one of them, his loans would be repaid.  Because of the large amount
of loans he incurred, having them repaid was one of the key points in his
decision to enlist.  He enlisted for 4 years as a combat engineer, and now
after almost a year of service he is shocked and outraged to learn that he
was manipulated and lied to. He has honored his commitment.  It is the
responsibility of the Army to fulfill the promises made to him.

3.  The applicant provides copies of DD Forms 2475 (DOD Educational Loan
Repayment Program (LRP) Annual Application).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army Reserve Delayed Entry Program (DEP)
for 8 years on 15 September 2003.  He signed a statement of understanding
which indicated enlistment for the LRP, an enlistment bonus, and for
training in MOS (military occupational specialty) 21B.  He was discharged
from the DEP upon his enlistment in the Regular Army for 4 years on 29
January 2004.

2.  On 29 January 2004 the applicant completed and signed a statement of
understanding concerning the Army incentive enlisted program
        (DA Form 3286-66).  That statement indicates that he understood
that under the Loan Repayment Program (LRP) the government would repay a
designated portion of any loan he 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 he enlisted into the Regular Army,
not to exceed $65,000.00.  Other provisions of that contract concerned the
timing of the repayment, and other administrative instructions.  His
guidance counselor witnessed the statement.
3.  None of the applicant’s enlistment documents, to include his DD Form
1996 series (Record of Military Processing – Armed Forces of the United
States) identified what student loans he had.

4.  On 19 September 2004 the applicant made application for repayment of
his loans by submitting apparently five DA Forms 2475, four of which are
available to the Board.  The lender, Wells Fargo Education Financial
Services, which indicated that they were private loans, completed the four
that are available.  In a 24 September 2004 letter to the Human Resources
Command, Wells Fargo indicated that the applicant had one Stafford loan in
the original amount of $1,500.00, and that the other four loans were
private loans.

5.  In the processing of this case an advisory opinion was obtained from
the Human Resources Command Education Incentives and Counseling Branch,
which recommended disapproval of the applicant's request, citing the terms
as outlined in his enlistment contract concerning the LRP.  That branch
also stated that based on the available documentation, the private loans
did not qualify for repayment under the LRP, and that there were no
exceptions to the law to allow payment for non-qualifying loans.  The
branch did indicate that he did have loans of $17,620.67 other than the
private loans that did qualify for repayment under the LRP, and that the
appropriate payments would be authorized toward his qualifying loans.  The
Branch stated that the total outstanding balance on the non-qualifying
private loans was $45,454.17, which would make a total of $72,974.84
principal verified for all loans, which would exceed the maximum limit of
$65,000.00 imposed by the Department of the Army.  The Branch stated that
if the Board decided to grant compensation, that any payment be sent
directly to the applicant in the amount of $37,479.33.  Noted, however, is
a miscalculation by the Branch in this respect.  The applicant’s qualifying
loans and private loans total $62,974.84, not $72,974.84.

6.  In his rebuttal, dated 22 January 2005, the applicant stated that he
was never provided a copy of the education act [cited in the advisory
opinion], but was persuaded by his guidance counselor and his recruiter
that all of his loans qualified and would be repaid in full by the Army
LRP.  Copies of his promissory notes were made and attached to his
contract.  He stated that if his guidance counselor is going to represent
the Army and make promises on its behalf, then those promises should be
honored.  He does not believe that it should be the job of the recruits to
sift through the information given to them by the NCOs over them, and
decide what the truth is and what a lie is.  He plans to deploy to Iraq and
this incident does not make him feel confident in the support of the Army.
If trust and loyalty could not be found in something as simple as
enlistment, then he could only imagine what would conspire on the
battlefield.  He stated that the Education Incentives and Counseling Branch
made some errors in its figures, and provided what he stated are the
correct amounts.

7.  The LRP is an educational enlistment incentive, which provides for
payment of a percentage of the unpaid principal of eligible student loans
for each year of active duty a Soldier completes.  Title 10, United States
Code, section 2171, limits loans that are eligible for repayment under the
LRP to those made, insured, or guaranteed under the Higher Education Act of
1965.  Before entering on active duty, the loan must not be in default.
The borrower is responsible for obtaining a deferment/forbearance with the
loan holder and the loan must remain in good standing throughout the
repayment process.  Active Army LRP participants earn their first loan
repayment after completion of a full year of active duty and for each full
year thereafter, up to 3 years.  Payment of 33 1/3 percent or $1,500,
whichever is greater, is authorized annually to the loan holder on the
total remaining original outstanding principal balance.

8.  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.

9.  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 and the U. S.
Army Reserve.  Chapter 9 (Enlistment Programs/Options) states that these
programs/options are designed to merge valid Army requirements with
personal desires.

10.  Army Regulation 601-210, Table 9-4, contains guidance on enlistment
option program 9C (Bonus/Army College Fund/Loan Repayment Program).  Table
9-4 provides program processing procedures that require specific counseling
and administrative actions in connection with processing members enlisting
with the LRP incentive.  In addition, Line 7 of Table 9-4 requires the
guidance counselor to verify that the applicant has qualifying loans if
enlisting for the LRP, to advise the applicant if any loan is not eligible,
and to have the applicant acknowledge same in the remarks section of the DD
Form 1966 series.

11.  U. S. Army Recruiting Command Regulation 621-1 (Montgomery GI Bill,
Army College Fund, and Loan Repayment Program), paragraph 4-4a, states that
applicants for the LRP are no longer authorized to ship without documents
or verification of eligible loans.

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.  The evidence of record shows that the applicant enlisted under the LRP
initiative.  It appears that three of his loans qualified for repayment
under the LRP; however, according to the Human Resources Command Education
Incentives and Counseling Branch $45,454.17 in private loans did not
qualify for repayment.

2.  The applicant states that he was assured prior to his enlistment in the
Army that all his student loans would be repaid, both by a recruiting
sergeant and an NCO at the MEPS.  He stated that copies were made of all
his loan information to include his promissory notes, and that his
promissory notes were attached to his contract.  He stated that he was also
told that his loans would be repaid if he enlisted in certain jobs, which
he did.

4.  The lack of entry on the applicant's DD Form 1966 lends credence to the
applicant's contention that he was misled concerning his student loans; in
effect, that recruiting personnel knew that some of his loans were not
eligible but assured him that they would be paid anyway.  Making the
required entries on the DD Form 1966 would have confirmed to the applicant
that some loans were ineligible and would have risked his enlistment.  It
appears that he was misinformed.  Any reasonable doubt concerning the
circumstances surrounding the counseling of the applicant on the
eligibility of his student loans should be resolved in his favor.

5.  In the interest of justice and equity, it would be appropriate to
provide the applicant the full LRP benefits outlined in his enlistment
contract.

6.  The applicant’s military records may be corrected to show his DA Form
3286-66 was amended to include the sentence “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 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 his lending institutions
would have been paid under the LRP.

BOARD VOTE:

___RW__  ___LB   _  ___LO___  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 the applicant's DA Form 3286-66 be amended to include the sentence “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 may pay the loan, at its sole discretion, in accordance
with Title 10, U.S. Code, section 1552.”

2.  That as a result of the foregoing correction the Defense Finance and
Accounting Service shall remit payment to the applicant of the total amount
of his private loans, $45,454.17, 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 the
Defense Finance and Accounting Service to determine the amount due.





                                  ____ Raymond Wagner______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040010264                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050419                                |
|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.       |112.12                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]