RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 3, 2005
      DOCKET NUMBER:  AR20040002883


      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 the Army repay his student
loans.

2.  The applicant states, in effect, that he was guaranteed by his
counselor, before enlisting, that his loans qualified for and would be
repaid by the LRP (Loan Repayment Program); however, his loans were not
eligible for and were not paid by the LRP.

3.  The applicant provided an addendum to his DD Form 149, Application for
Correction of Military Records, dated 12 May 2004; four statements from
family members who are familiar with events that led to his enlistment and
the motivation therefore, i.e., for payment of his student loans; and
twelve documents directly related to the Army enlistment process.

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 26 August
2002.

2.  On 29 October 2002, the applicant enlisted in the Regular Army for 5
years for, among other options, the Cash Bonus Option ($20,000), and the
LRP.  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, shows, in item 30 (Data Verification by Recruiter), that the
applicant's recruiter saw the applicant's Social Security Account card to
verify his name, the applicant's birth certificate to verify his age and
citizenship, and the applicant's college transcript to verify his
educational level on 22 August 2002.  There is no indication on this form
that the recruiter saw other documents.

4.  DD Form 1966/3, Item 32.a (Specific Option/Program Enlisted For), shows
that the applicant enlisted for Options 9A (US Army Training Enlistment
Program), training in the MOS (Military Occupational Specialty) 98X1L
(Crypto Linguist-Analyst), and 9C (US Army Incentive Enlistment Program), a
Cash Bonus of $20,000 and the Student Loan Repayment Program.  DA Form 3286-
66, Incentive Enlistment Program, in paragraph 1 (Acknowledgement), shows
the same enlistment training and incentive options.
5.  USAREC Form 1150-R-E, Statement of Understanding – Army Policy, USAREC
Addendum to DD Form 1966 Series, in Item 11, which was initialed by the
applicant, shows that he enlisted for a Cash Bonus and the SLRP.  Item 12
was initialed to signal the applicant's understanding of the SLRP.  The
applicant's understanding was that, "under the Army's Student Loan
Repayment Program, the Army will not repay student loans in excess of
$65,000 regardless of the amount of my student loans.  I further understand
that I am required to make the interest payments on my student loans during
my first year of enlistment.  In addition, I understand that I must bring
copies of ALL my student loan promissory notes when I report to the MEPS
for my active duty ship date."  The USAREC Form 1150-R-E was signed and
countersigned by the applicant and his guidance counselor on 26 August
2002.

6.  DA Form 3286-66, Statement of Understanding, United States Army
Incentive Program, which was completed on 29 October 2002, shows that the
applicant understood that to participate in the LRP, he was required to
disenroll from the GI Bill in order to qualify for the program; that
disenrollment must be accomplished at the time he entered on active duty;
and that if he failed to complete the disenrollment portion of the DD Form
2366, he would not be eligible for the SLRP and he would automatically be
enrolled in the GI Bill.

7.  The applicant further understood, among other understandings, that:

      a.  under this program 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 in the Regular Army;

      b.  enlistment for the LRP ensured him, provided he met and
maintained the prescribed prerequisites, that the portion or amount of the
loan that may be repaid is thirty-three and a third percent or $1,500.00,
whichever is greater, of the unpaid principal not to exceed $65,000.00; and
that

      c.  repayment is made only after each successful year of active duty
he performed commencing on the date of his enlistment in the Regular Army.

8.  The applicant and the guidance counselor each authenticated the reverse
of DA Form 3286-66.

9.  The applicant completed and signed a DD Form 2366, Montgomery GI Bill
Act of 1984 (MGIB), to disenroll himself from participation in the MGIB on
31 October 2002.

10.  There is no indication on the DA Form 1966/4, Record of Military
Processing – Armed Forces of the United States, or in any annex to this
form, that any question was raised with regard to his eligibility for the
LRP by Army representatives responsible for processing the applicant for
entry into Army service.  There is also no indication that the applicant
was advised that any of his loans did not qualify for payment under the
LRP.

11.  On 15 August 2003, the applicant completed and submitted a DD Form
2475, DOD Educational Repayment Program (LRP) Annual Application, to the
Education Incentives and Counseling Branch, U.S. Army Human Resources
Command.

12.  On 18 November 2003, the applicant was notified by the Education
Incentives and Counseling Branch, U.S. Army Human Resources Command,
that based on the information provided by ACS (acronym unknown), it was
determined that loans disbursed by the PNC Bank, on 26 June 1998, totaling
$25,224.19 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.

13.  The applicant applied to this Board on 18 May 2004 and, in the
processing of this case a staff advisory opinion was obtained from the U.S.
Army Human Resources Command, Education Incentives Branch (EIB).  The
Acting Chief, EIB, opined that the applicant's request should be
disapproved.  She stated that, "the DA Form 3286-66 confirms the loans that
are eligible for repayment and must be made under Title IV, Part B, D, or E
of the Higher Education Act.  She continues that, "Based on information
obtained from ACS the Private Loan does not qualify for repayment under the
LRP.  The loan is not made, insured, or guaranteed under Title IV, Part B,
D. or E of the Higher Education Act of 1965.  There are no exceptions to
the law; therefore, payment cannot be authorized on his non-qualifying
loan.  He borrowed money for his education and then joined the US Army to
have his qualifying loans repaid.  The Soldier has no other loans that
qualify for repayment under the LRP."  Finally, the Acting Chief, EIB,
advised that if the Board decided to grant compensation that the
computation of any payment be based on the information provided in the
individual's case
paperwork; that the total amount of compensation requested is $25,224.19
for the non-qualifying Private Loan; and that if the Board does authorize
any compensation, she recommended that any amount so authorized be sent
directly to the Soldier.

14.  On 27 September 2004, the advisory opinion was provided to the
applicant for his information and possible rebuttal prior to the Board's
consideration of his case.

15.  On 12 October 2004, the applicant responded to the advisory opinion.
The applicant pointed out that it was his understanding that his student
loans would be paid.  He was aware that not all loans qualified for payment
and these were outlined in his enlistment contract; however, he was
reassured twice by two different Army representatives that his loans did
qualify for repayment under this program.  He accepted the assurances and
knowledge of officials in positions to know the information as truth.  The
applicant states that he had the promissory notes with him on 26 August
2002 and again on 29 October 2002 when he met with his guidance counselors
at the MEPS (Military Entrance Processing Station). At each meeting, the
notes and lender information were examined by each individual and both
times; he was told that they were going to verify whether the loans
qualified under the LRP.  Upon return from each verification process, he
was told that his loans did in fact qualify for repayment.  This, he
states, is the reason for his enlistment and for his having initialed his
enlistment contract.  He concluded by stating that he feels that a grave
injustice has occurred and that he was not properly counseled, as proper
counsel would have been able to tell him that his loans did not qualify.
He borrowed money for his education and enlisted with the understanding
that his loans would be repaid as it was outlined and affirmed in his
enlistment contract.

16.  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 thirty-three and a third percent or
$1,500, whichever is greater, is authorized annually of the loan to be
repaid.

17.  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."

18.  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).

19.  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."

20.  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).

21.  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.

22.  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 he was reassured twice, by Army
officials whose knowledge he accepted as truth, that his loans would be
paid.  Based on these reassurances, he entered into his enlistment contract
with the Army.

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 the applicant’s loans did not meet the criteria
established by law and regulation for the repayment of student loans;
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 DD Form 1966/3, the USAREC Form 1150-R-E, and the DA Form 3286-66
that the applicant signed confirms the options and incentive the applicant
contracted for during the recruitment and enlistment process.  "Student
Loan Repayment Program" is shown as the incentive and the specific terms of
the LRP are listed in paragraph 1 (Acknowledgement) of the DA Form 3286-66.
8.  The DD Form 1966/3, the USAREC Form 1150-R-E and the DA Form 3286-66
were all 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                 |AR20040002883                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050302                                |
|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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