RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 February 2005
      DOCKET NUMBER:  AR20040000311


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. Powers               |     |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 payment of his student loans from the Sallie Mae
Servicing Corporation under the loan repayment program (LRP).

2.  The applicant states, in effect, that the MEPS (Military Entrance
Examining Station) representative examined all of his student loans and
assured him they qualified under the LRP.

3.  The applicant provides copies of his enlistment contract and a 2
December 2003 letter from the Human Resources Command informing him that
his Sallie Mae Servicing Corporation loans totaling $18,075.00 could not be
paid under the LRP.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests payment of the applicant's loans.

2.  Counsel states that the applicant was improperly counseled.

3.  Counsel provides a 30 October 2004 Memorandum of Record signed by a
sergeant major, the Senior Guidance Counselor at MEPS New Orleans,
Louisiana.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular
Army for 4 years in pay grade E-3 on 1 March 2003.  His enlistment contract
provided for training in military occupational specialty (MOS) 00B Engineer
Diver and up to $65,000 in LRP benefits.

2.  The 2 December 2003 letter from the Human Resources Command informed
the applicant that his Sallie Mae Servicing Corporation loans were not
payable under the loan repayment program (LRP) because they were not
guaranteed by the Federal government under qualifying programs or
applicable provisions of law.

3.  The 30 October 2004 Memorandum of Record from the Senior Guidance
Counselor at MEPS New Orleans states that the applicant was, indeed,
counseled that his loan(s) from Sallie Mae Servicing Corporation were
payable under the LRP.


4.  The  30 October 2004 Memorandum of Record signed by a sergeant major,
the Senior Guidance Counselor at MEPS New Orleans, Louisiana acknowledges
that the MEPS guidance counselor who handled the applicant's enlistment
inadvertently concluded that the Sallie Mae Servicing Corporation loans
were payable under LRP and so informed the applicant.

5.  Army Regulation 635-200, states that when recruiting personnel offers
an incentive to an individual for which the individual was not qualified,
the Soldier may either elect to be discharged or to remain in the reserves
without the incentive due to the defective nature of their enlistment.
 
6.  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.

7.  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.

8.  U. S. Army Recruiting Command Regulation 621-1 (Montgomery GI Bill,
Army College Fund, and Loan Repayment Program), current version effective
30 November 1998, paragraph 4-4a states that applicants for the LRP are no
longer authorized to ship without documents or verification of eligible
loans.

9.  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 to the loan holder on the total
remaining original outstanding principal balance.

10.  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.

11.  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 preponderance of the evidence supports the applicant's contention
that he was told by his recruiter that all of his student loans would be
paid under the LRP.
 
2.  However, the applicant’s enlistment is valid as the Army will, in fact,
pay any student loans submitted by the applicant which were made or insured
under the Higher Education Act of 1965.  As such, requesting discharge due
to defective enlistment is not an option in this case.  Besides, the Army
has already incurred considerable sums training him and derived almost a
year of service from the applicant.  Discharging him at this late date
would not correct the injustice of this case.
 
3.  The Board cannot rectify this injustice by having the applicant’s loans
paid under the LRP.  That is prohibited by law and the Board is not
empowered to violate law.

4.  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.

5.  The applicant’s military records may be corrected in an alternate
manner to show his DA Form 3286-66, US Army Incentive Enlistment Program,
paragraph 4a, was altered to include the sentence “If a student loan is
accepted by the officials processing you for enlistment, or subsequent to
enlistment by the Army Board for Correction of Military Records (ABCMR), as
payable under the LRP and it is later discovered that it is not payable due
to it not being made or insured under the Higher Education Act of 1965
(Guaranteed Student Loan) or due to the student loan(s) no longer being
outstanding, the ABCMR may pay the loan(s), or any portion of the loan(s),
at its sole discretion, in accordance with Title 10, U.S.C., Section 1552.”


6.  This would allow the Board to invoke that provision and pay him the
amount of his loans principal and interest on the date he submitted his
loans for payment.
 
7.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

__MKP__  __SP ___  __SLP___  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 Sallie Mae Servicing Corporation student loans  to which he is
entitled as a result of this correction.  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.

3.  The Defense Finance and Accounting Office should monitor the
applicant’s service and, if he fails to complete his enlistment, initiate
recoupment action on a prorated basis.






                                  _     Margaret K. Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000311                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050208                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.12                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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