RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 15, 2005
      DOCKET NUMBER:  AR20040000307


      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. Luis Almodova                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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.  The applicant requests, in effect, that his Sallie Mae Student Loans be
paid.

2.  The applicant states, in effect, that the Army is obliged to pay his
student loans as part of his enlistment contract.  The education department
of the Army has refused to pay the loan for his education as part of his
enlistment contract agreement.  LRP (Loan Repayment Program) was part of
the agreement he and the counselor at the Baltimore MEPS (Military Entrance
and Processing Station) signed.  In a self-authored letter attached to his
application, the applicant states that his counselor misled him.  Following
the advice of his counselor, he disenrolled from the Montgomery GI Bill and
opted for the Loan Repayment Program.  He now asks that this injustice be
corrected.

3.  The applicant provided a copy of a DA Form 3266-67, Statement of
Understanding, United States Army Incentive Program; DD Form 1966/3, Record
of Military Processing – Armed Forces of the United States, page 3; DD Form
1966/4, Record of Military Processing – Armed Forces of the United States,
page 4; and DD Form 2366, Montgomery GI Bill Act of 1984; in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Army
Reserve, US Army Delayed Enlistment Program, for 8 years, on 25 October
2002.

2.  On 16 January 2003, the applicant enlisted in the Regular Army for 3
years for enlistment options 9A (US Army Training Enlistment Program) and
9C (US Army Incentive Enlistment Program (U.S. Army Loan Repayment
Program).  The applicant is currently on active duty in the Army.

3.  DD Form 1966/3, in Section IV (Certification), Item 30 (Data
Verification by Recruiter), shows that the applicant's recruiter saw the
applicant's INS
Form I-551, to verify his name, age, and citizenship.  The recruiter also
saw the applicant's Social Security Account Number card, to verify his
Social Security Number and the applicant's diploma, to verify his
educational level.  There is no indication on this form that the recruiter
saw other documents.

4.  DA Form 3286-66, Statement of Understanding, United States Army
Incentive Program, shows in item 1.a. that the applicant selected, as part
of his enlistment incentive, the Loan Repayment Program.  Item 3 of the
form was "Xed" out.  The applicant initialed item 4, Item 4.a. and Item
4.b.  This form was labeled, "Annex D."
5.  The DA Form 3286-67, Statement of Understanding (Army Policy), in the
applicant's records, shows, in Item 5, that he had initially enlisted, on
25 October 2002, for the Army College Fund (ACF).

6.  The DD Form 1966/4 that the applicant submitted shows the statement,
"I request my reservation be changed from the Army College Fund to the Loan
Repayment Program."  This request was made on 16 January 2003.

7.  The applicant completed and signed a DD Form 2366 to disenroll himself
from participation in the MGIB on 16 January 2003.  Item 3 (Service Unique
Education Assistance Options) contains the handwritten acronym, "LRP."  A
second DD Form 2366, dated 22 January 2003 is also on file in the
applicant's records.  Item 3 of this DD Form 2366 is blank.  A different
counselor than the first signed this form.

8.  There is no indication on the Statement for Enlistment or in an annex
to the form that any question was raised with regard to his eligibility for
the LRP.  There is also no indication that the applicant was advised that
any of his loans did not qualify for payment under the LRP.

9.  The applicant completed and submitted a DD Form 2475 to the Education
Incentives and Counseling Branch, U.S. Army Human Resources Command and, on
23 February 2004, he was notified that it was determined that based
on information provided by the Sallie Mae Servicing Corporation that his
loan disbursed on 24 July 2000 totaling $4,306.55 did not qualify for
repayment under the LRP.  He was further advised that his loan was not
made, insured, or guaranteed under Title IV, Part B, D, or E of the Higher
Education Act of 1965.  He was advised that if he felt that he was not
properly counseled, or that an error or injustice had occurred, he could
apply to this Board.

10.  The applicant applied to this Board on 28 February 2004.

11.  The Loan Repayment Program is a Department of the Army enlistment
option authorized by Public Law 99-145.  This option is designed to
increase Test Score Category I-IIIA accessions.  Loans that qualify for
repayment are Guaranteed Student Loan/Stafford Loans, National Direct
Student Loan/Perkins Loans, William D. Ford Loans, Supplemental Loans for
Students, Federally Insured Student Loans (FISL), Parent Loan for
Undergraduate Students (PLUS), Auxiliary Loan Assistance for Students
(ALAS), and consolidated loans which fall under Title IV, Part B or E of
the Higher Education Act of 1965, or William D. Ford Loan.  Before entering
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 of the loan to be repaid.

12.  AR 601-210, Chapter 6, MEPS Processing Phase, provides policy and
guidance for those functions that are administered at MEPS by MEPCOM
(Military Entrance Processing Command) personnel and guidance counselors.
Paragraph 6-5.g. states that the guidance counselor "counsels applicants
who failed to meet specific qualifications for options for which they
applied; advises them of other available options."

13.  AR 601-210, Table 9-4, line 7, states that guidance counselors will
a.) complete the required entries on the DD Form 1966; c.) if enlisting for
the LRP, disenroll the applicant or soldier from the GI Bill; and d.)
verify that the applicant has qualifying loans if enlisting for the LRP.
Advise applicant if any loan is not eligible and have the applicant
acknowledge same in the remarks section of the DD Form 1966-series
(emphasis added).

14.  Forms included in the DD Form 1966 series were reviewed for any
indication or remarks that any of the applicant's loans was not eligible
for repayment under the LRP.  None was found.

15.  United States Army Recruiting Command (USAREC) Regulation 621-1,
paragraphs 4-4a., which supplements Army Regulation 601-210, states that
"Applicants are no longer authorized to ship without documents or
verification of eligible loans."

16.  The procedures, outlined in paragraphs thirteen and fifteen above, are
also contained in USAREC Regulation 601-96 (Guidance Counselor Procedures),
Appendix N, paragraphs N-3.d(3).

17.  Title 10, US 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 supports the applicant's contention that he was
not properly counseled.  He contends that the MEPS counselor misled him
into signing up for a program he [the counselor] knew he did not qualify
for.

2.  There is an absence of entries on required enlistment documents that
must be completed at the MEPS before a Soldier ships to basic training.  In
particular, the DD Form 1966/3 and 4, are silent as it pertains to any
information pertinent to the LRP and review of promissory notes, to a
determination as to the qualification of loans for payment by the LRP, to
any counseling that may have been given the applicant pertinent to any
loans that did not qualify, and any advice given the applicant pertinent to
other available options.  The applicant's change in enlistment incentive
program from Army College Fund to Loan Repayment Program on the date of his
entry on active duty seems to indicate that the applicant did not have his
loan promissory notes with him at the time he processed for enlistment at
the MEPS which further indicates that he was not properly counseled due to
the lateness of the change in enlistment incentive.

3.  The applicant Disenrolled from the Montgomery GI Bill, as he was
required to do at the time he entered active duty in order to qualify for
the LRP.

4.  It is evident that the applicant’s loan did not meet the LRP criteria
established by law and regulation; however, this is not the overriding
factor in this case, given the equity considerations and the resultant
injustice to the applicant.

5.  From the evidence of record, it appears that the applicant was told by
the counselor who may not have seen the promissory note that his loan would
be paid under the Army's Loan Repayment Program.  This is evidenced by the
fact that the applicant was authorized to ship to basic training.  This is
further evidenced by the fact that the applicant submitted his loan for
repayment and the Education and Incentives and Counseling Branch notified
him that the loan he now seeks payment of did not qualify for repayment
under the LRP.

6.  The evidence shows that the applicant entered into an erroneous
contract with the Army, through no fault of his own, based on the failure
of the guidance counselor to strictly follow established regulatory
guidelines and procedures in connection with his recruitment and enlistment
processing.  Given the failure by the guidance counselor to follow clearly
established policies and procedures, the Board concludes that it would be
appropriate to rectify the resultant injustice to the applicant at this
time.  The Board finds that it would be equitable and in the interest of
justice to provide the applicant the LRP benefits committed to in his
enlistment contract at the time of his enlistment.

7.  Broad discretion is available to this Board under Title 10, US Code,
Section 1552, which includes the authority to amend the applicant’s
enlistment contract 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 all student loans accepted actually are
eligible, under the Higher Education Act of 1965, and such failure results
in nonpayment of the loan by the LRP, the Army Board for Correction of
Military Records may pay the loan, at its sole discretion, in accordance
with Title 10, US Code, section 1552;”  This amendment of the DA Form 3286-
66 allows the Board to invoke that provision and pay the applicant or
lending institutions, on behalf of the applicant, the amount that would
have been paid towards satisfaction of outstanding student loan(s),
verified at the time of his enlistment.

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

BOARD VOTE:

lip _____  tap  _____  kwl  _____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  amending the applicant's enlistment contract to include the
statement,  “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 all student loans accepted actually are eligible under the
Higher Education Act of 1965, and such failure results in nonpayment of the
loan by the LRP, 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;”
      b.  directing that the applicant submit the appropriate evidence, in
the form of a promissory note, etc. to the Defense Finance and Accounting
Service to determine the amount due on the loan addressed by these
proceedings; and

      c.  directing that in accordance with Title 10, US Code, section 1552,
the Defense Finance and Accounting Service make payment to the applicant,
for the total amount of the loan not covered under the Loan Repayment
Program, based on time served, at the appropriate rate, and at the
appropriate time, as a result of this correction.





                                  __   _Jennifer L. Prater___
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040000307                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  222  |112.0000                                |
|2.  226                 |112.0400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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