RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 February 2004
      DOCKET NUMBER:  AR20040000363


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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, payment of college loans under the
terms of the Student Loan Repayment Program (SLRP).

2.  The applicant states, in effect, that when he initially signed his
enlistment contract, he was never counseled that his Sallie Mae loans were
not eligible for repayment under the provisions of the SLRP.  He claims
that after providing recruiting personnel all his loan promissory notes, to
include the Sallie Mae notes, he was given an okay and told all his loans
would be repaid.

3.  The applicant provides a Statement of Understanding United States Army
Incentive Enlistment Program (DA Form 3286-66) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 21 February 2002, he
enlisted in the Regular Army for 3 years.  A DA Form 3286-66 (Annex D) on
file confirms the options and incentives the applicant contracted for
during his enlistment processing.  The SLRP is one of the incentives
authorized and the applicable SLRP terms are listed in paragraph 4 of this
form.

2.  The SLRP provisions of Annex D state, in pertinent part, that the
applicant understood he must disenroll from the GI Bill at the time he
entered active duty and if he failed to do this he would not be eligible
for the SLRP.  It also indicated that the applicant understood that the
government will repay a designated portion of any loan he incurred that was
made, insured or guaranteed under Part B of the Higher Education Act
(Guaranteed Student Loan) or any loan under Part E of such act (National
Direct Student Loan) after 1 October 1975 and before he enlisted in the
Army.

3.  Annex D to the applicant’s enlistment contract further indicated that
the applicant’s enlistment for the SLRP ensured him, provided he met and
maintained the prescribed prerequisites, that the portion or amount of his
student loans that could be repaid was 33 1/3 percent or $1,500, whichever
was greater of the unpaid principal balance for each year of service
completed up to a maximum of $65,000.

4.  The applicant and the service representative signed Annex D to his
enlistment contract on the date he entered active duty, 21 February 2002,
and there is no indication in this Annex that any questions were raised
regarding the eligibility of his student loans for repayment.

5.  On 21 February 2002, the recruiting guidance counselor completed
Section V (Recertification) and Section VI (Remarks) of the Record of
Military Processing-Armed Forces of the United States (DD Forms 1966/3 and
1966/4).  These documents contained an entry confirming the applicant’s
participation in the SLRP and certified that no changes to the agreements
were necessary.  There was no indication or entries regarding the
eligibility/ineligibility of any of his student loans.

6.  On 20 June 2003, the Chief, Education Incentives and Counseling Branch,
Human Resources Command (HRC) notified the applicant that his Sallie Mae
loans did not qualify for repayment under the SLRP.  The applicant was
advised to apply to this Board if he believed he was not properly counseled
or that an error or injustice had occurred.

7.  During the processing of this case, an advisory opinion was obtained
from the HRC, Acting Chief, Education Incentives and Counseling Branch.
This HRC official recommends disapproval of the applicant’s request based
on the loans in question not being eligible for repayment under the terms
of the applicant’s enlistment contract because they were not made, insured,
or guaranteed under Title IV, Part B, D, or E of the Higher Education Act
of 1965 and there are no exceptions to the law that would allow
authorization of payment by HRC.  This HRC official does indicate that if
the Board decides to grant compensation, the total amount requested of
$15,827.97 for the non-qualifying signature loans should be paid to
directly to the applicant.  HRC does indicate the applicant has qualifying
loans that are being repaid under the provisions of the SLRP.

8.  On 22 July 2004, the applicant was provided a copy of the HRC advisory
opinion in order to have the opportunity to reply to its contents.  To
date, he has failed to respond.
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 (PS), into the Regular Army (RA) and
the USAR.  Chapter 6, section II contains guidance on the Guidance
Counselor Processing Phase.  It states, in pertinent part, that Guidance
Counselors will use the supporting automated systems and updated regulatory
material applicable to MOS and available options to counsel all applicants
on their enlistment options.  It further states that Guidance Counselors
will counsel applicants who failed to meet specific qualifications for
options for which they applied; and advise them of other available options.


10.  Chapter 9 (Enlistment Programs/Options) indicates that these
programs/options are designed to merge valid Army requirements with
personal desires.  Table 9-4 contains guidance on enlistment option program

9C (Bonus/Army College Fund/Loan Repayment Program).  It contains specific
guidance pertaining to the SLRP and indicates that the government will
repay a designated portion of any loan incurred that was made, insured, or
guaranteed under part B of the Higher Education Act of 1965 (Guaranteed
Student Loan) or any loan under part E of such act (National Direct Student
Loan) after 1 October 1975 and before enlistment into the Regular Army.

11.  Table 9-4 also provides program processing procedures that require
Army Guidance Counselors to accomplish specific counseling and
administrative actions in connection with processing members enlisting with
the SLRP incentive.  These actions include ensuring members are disenrolled
from the
GI Bill; verifying that members have qualifying loans; and advising members
of any loan that is not eligible.

12.  The same regulation further states that Guidance Counselors are
specifically required to confirm they accomplished all the processing
procedures by making the appropriate entries in the DD Form 1966 and DA
Form 3286-66.  This includes a statement regarding the applicant’s
eligibility for the SLRP, which includes any factors that may disqualify
them from receiving the SLRP benefit, and ensuring that the applicant’s
acknowledgement of this fact is also recorded in the remarks section of the
DD Form 1966.
13.  The SLRP is a Department of the Army enlistment option authorized by
Title 10 of the United States Code, section 2171 (10 USC 2171), which
provides the legal authority for the education loan repayment program for
enlisted members on active duty in specified military specialties.

14.  10 USC 2171 states, in pertinent part, that 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.  It further
specifies that payment of such loans shall be made on the basis of each
complete year of service performed as an enlisted member in a military
specialty specified by the Army.  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.

15.  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.  It is clear the applicant’s student loans from Sallie Mae Incorporated
did not meet the criteria established by law and regulation to qualify for
repayment by the Army under the SLRP.  The loans were not made, insured, or
guaranteed under Title IV, Part B, D, or E of the Higher Education Act of
1965, as is required.  However, this is not the overriding factor in this
case given the equity considerations and the resultant injustice.
2.  Annex D of the applicant’s enlistment contract established a
contractual agreement between the applicant and the Army and the record
clearly shows that the responsible recruiting officials failed to make
reference to any loans ineligible for payment under the SLRP, as evidenced
by the absence of DD Form 1966 entries regarding ineligible student loans.


3.  The governing regulations require Army Guidance Counselors to verify
and counsel applicants on their eligibility for the options they agreed to
prior to their departing for active duty.  Further, these counselors are
obligated to advise applicants on any options they agreed to, but are not
eligible for, and on any available alternatives.  Finally, counselors must
add entries to the enlistment contract and/or associated documents
confirming this verification of option and incentive eligibility and/or
counseling on ineligibility prior to a member departing for active duty.
In this case, counselors failed to properly document the ineligibility of
the applicant's Sallie Mae loans in the DD Forms 1966/3 and 1966/4 prepared
on the day he departed for active duty.

4.  In view of the facts of this case, it appears that the applicant
entered into an erroneous contract with the Army, based on the failure of
recruiting personnel to follow established regulatory guidelines in
connection with this enlistment processing, through no fault of his own.
Given the failure on the part of government officials to follow its own
regulations during the applicant's enlistment processing, it is appropriate
to rectify the resultant injustice at this time.

5.  In doing so, the applicant's military records should be corrected to
show his DA Form 3286-66 was amended to include the sentence “If a student
loan is accepted by the official processing you for enlistment as payable
under the SLRP 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 SLRP 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 the lending institution would have been paid for the
Sallie Mae loans.

BOARD VOTE:

___FE __  ___LVB__  __JRS__  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 all Department of the Army records of the individual concerned be
corrected by amending the applicant's DA Form 3286-66, Statement of
Understanding, U.S. Incentive Enlistment Program to include the sentence
“If a student loan is accepted by the official processing you for
enlistment as payable under the SLRP 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 SLRP 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.  Further, the Defense Finance and Accounting Service (DFAS) shall remit
payment in the amount of $15,827.97 to the applicant as a result of this
correction.




            ____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000363                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/10                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 1026  |113.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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