RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         FEBRUARY 3, 2005
      DOCKET NUMBER:  AR20040000308


      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:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. 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.  The applicant requests, in effect, that his supplemental college loans
(Colgan Loan disbursed by the Community Foundation of Western,
Massachusetts) be paid.

2.  The applicant states, in effect, that he feels betrayed by the
Department of the Army (DA).  He adds that his enlistment officer explained
to him that both his supplemental loans from Colgan Funds and his direct
loans from Perkins Funds were qualified for the Loan Repayment Program
(LRP) so, he expected both loans totaling $32,000.00 to be paid.

3.  The applicant provided the DA Form 2475, DoD Educational Loan Repayment
Program (LRP) Annual Application, dated 15 January 2004 and a copy of the
reply from the Acting Chief, Education Incentives and Counseling Branch, US
Army Human Resources Command, dated 26 March 2004, 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 22 May 2003.

2.  On 27 May 2003, the applicant enlisted in the Regular Army for 6 years
for, with 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, Record of Military Processing – Armed Forces of the
United States, in Section IV (Certification), in item 30 (Data Verification
by Recruiter), 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, and degree
credentials.  There is no indication on this form that the recruiter saw
other documents.

4.  On 27 May 2003, the applicant signed, and thus authenticated, on page
seven, of an eight-page automated Statement for Enlistment – United States
Army Enlistment Program, that he had read and understood all promises and
guarantees made to him concerning his enlistment.  Item 2 (Associated
Options), of this automated form, contains his acknowledgement and
understanding of his and the Army's responsibilities pertinent to the LRP.
Key among these understandings are that only certain loans qualify for the
LRP; that if his enlistment was for the LRP, that he must disenroll from
the Montgomery GI Bill at the time he entered on active duty and, if he
failed to complete the disenrollment portion of the DA Form 2366
(Montgomery GI Bill Act of 1984), he would not be eligible for the LRP and
would become automatically enrolled in the GI Bill; and that he must bring
copies of ALL his student promissory notes when he reported to the MEPS
for active duty ship date.  The guidance counselor at the Military Entrance
Processing Station (MEPS) countersigned the Automated Statement for
Enlistment.

5.  The applicant completed and signed a DD Form 2366 to disenroll himself
from participation in the MGIB on 27 May 2003.

6.  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.

7.  On 3 February 2004, the applicant completed and submitted a DD Form
2475 to the Education Incentives and Counseling Branch, U.S. Army Human
Resources Command.

8.  On 26 March 2004, the applicant was notified by the Education
Incentives and Counseling Branch, U.S. Army Human Resources Command that
based on the information provided by UAS (University Accounting Service),
it was determined that his loan disbursed on 17 August 1994 totaling
$4,615.00 did not qualify for repayment under the LRP.  He was advised that
if he felt that he was not properly advised or that an error or injustice
had occurred, he could apply to this Board.

9.  The applicant applied to this Board on 7 April 2004.  In the processing
of this case, an advisory opinion was requested of the Human Resources
Command, Education Incentives and Counseling Branch.  On 4 June 2004, the
Acting Chief, Education Incentives and Counseling Branch, recommended, in
effect, disapproval of payment of the applicant's student loans under the
LRP.  The Acting Chief opined that the loan that the applicant sought
repayment of was not made, insured, or guaranteed under Title IV, Part B,
D, or E of the Higher Education Act of 1965.  The Acting Chief, Education
Incentives and Counseling Branch, advised that there are no exceptions to
the law; therefore, payment could not be authorized on his non-qualifying
loan.  The Acting Chief, Education Incentives and Counseling Branch, also
advised that the Soldier does have other loans that do qualify for
repayment under the LRP and that appropriate payments are being authorized
toward these student loans.  The total outstanding balance on the non-
qualifying institutional loan is $4,615.00.

10.  On 16 June 2004, the advisory opinion was provided to the applicant
for his information and possible rebuttal.

11.  On 30 June 2004, the applicant responded to the advisory opinion.  The
applicant pointed out that he asked a lot of questions about the repayment
of his student loans.  His recruiter, he states, made it clear that the
loans were in the categories of loans that would be completely paid off
when he enlisted in the Army.  He now states that he feels betrayed by his
recruiters and thus, by the Army, in this matter.

12.  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.

13.  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."

14.  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).

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 14 and 15 above, are also
contained in USAREC Regulation 601-96 (Guidance Counselor Procedures),
Appendix N, paragraphs N-3.d(3).

17.  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.

18.  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 his recruiters told him that his
loans were in the categories of loans that would be completely paid off
when he enlisted.

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.

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 not all the applicant’s loans met 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
that all his loans would be paid.  It also appears that his guidance
counselor at the MEPS believed that the loans qualified for repayment since
no entries were made in the remarks section of the DD Form 1966-series, as
required, if any loan was not eligible for repayment and he was authorized
to ship to basic training.  This is further evidenced by the fact that the
applicant submitted his loans for repayment and the Education and
Incentives and Counseling Branch notified him that the loans he now seeks
payment of did not qualify for repayment under the LRP.

6.  The absence of comments in the remarks section of the applicant's DD
Form 1966/3 and the fact that the applicant was authorized to ship
indicates that the applicant produced the promissory notes before he was
shipped and they were deemed to be qualified for repayment by the guidance
counselor.

7.  The eight-page automated Statement for Enlistment – United States Army
Enlistment Program, confirms the options and incentive the applicant
contracted for during the recruitment and enlistment process.  "Loan
Repayment Program" is shown as the incentive and the applicable LRP terms
are listed in paragraph 1 (Acknowledgement).

8.  The automated Statement for Enlistment – United States Army Enlistment
Program was signed by both the applicant and the guidance counselor thus
establishing a contractual agreement, between the applicant and the Army.
This contractual agreement established that the applicant would receive LRP
benefits.

9.  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.

10.  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.

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

BOARD VOTE:

mm_____  ljo  _____  lb______  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 promissory notes, etc. to the Defense Finance and Accounting
Service to determine the amount due on the loans 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 loans not covered under the Student Loan Repayment
Program, based on time served, at the appropriate rate, and at the
appropriate time, as a result of this correction.





                                  ____Melvin H. Meyer___
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040000308                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050203                                |
|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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