RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040008803


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 that his student loan be paid in accordance with
his enlistment option for the Army Student Loan Repayment Program (LRP).

2.  The applicant states that he enlisted for the LRP as an option in his
enlistment contract with one loan totaling $37,905.80.  When he submitted a
DD Form 2475 (DoD Educational Loan Repayment Program Annual Application),
it was rejected by the Chief, Education Incentives and Counseling Branch,
US Army Human Resources Command (HRC), Alexandria, Virginia.

3.  The applicant provides:

      a.  A 25 February 2004 letter from HRC denying his request for loan
repayment.

      b.  A copy of DD Form 2475.

      c.  A copy of his Promissory Note for academic year 2001/08/13-
2002/05/31.

      d.  Two documents showing that his mother, who co-signed his loan, is
disabled and cannot work.

      e.  A self-authored 25 September 2004 letter to the Board.

CONSIDERATION OF EVIDENCE:

1.  On 21 June 2002, the applicant enlisted in the Delayed Entry Program
(DEP). His DA Form 3286-66 (Statement of Understanding-US Army Incentive
Enlistment Program) shows he enlisted for Option 9B, the US Army
Unit/Command/Area Enlistment Program and Option 9C, US Army Incentive
Enlistment Program LRP.  The applicant authenticated DA Form 3286-66
indicating that he understood the provisions of the LRP.

2.  On 9 September 2002, the applicant enlisted in the Regular Army (RA)
for a period of 4 years.  Upon enlistment, he authenticated his DD Form
1966/3 to show that no changes were required concerning his enlistment
options.

3.  The evidence of record shows the applicant is currently serving on
active duty in the rank of private first class/E-3.  On 6 January 2004, the
applicant submitted DD Form 2475 seeking repayment of his student loan.
The loan application, for a loan totaling $37,905.80, was returned and
disapproved as not qualifying for the LRP.

4.  In similar situations, the Department of the Army Human Resources
Command (HRC) has provided advisory opinions stating, in essence, that they
had advised applicants in writing that their loan(s) did not qualify for
repayment because it/they was/were not made, insured, or guaranteed under
Part B of the Higher Education Act of 1965 (Guaranteed Student Loan) or
under Part E of such act (National Direct Student Loan) after 1 October
1975.  The opinions recommended disapproval.

5.  Army Regulation (AR) 601-210 (Regular Army and Army Reserve Enlistment
Program) prescribes eligibility criteria governing the enlistment of
persons, with or without prior service, into the RA and the US Army
Reserve.  Chapter 9 (Enlistment Programs/Options) indicates that these
programs/options are designed to merge valid Army Requirements with
personal desires.

6.  Table 9-4 of AR 601-210 contains guidance on enlistment option program
9C (Bonus/Army College Fund/Loan Repayment Program).  It contains specific
guidance pertaining to the LRP 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 RA."

7.  Table 9-4 also provides program-processing procedures that require Army
Guidance Counselors to complete required entries on the DD Form 1966
pertaining to an applicant’s eligibility for the LRP.  Part of the
mandatory processing procedures includes verification that the applicant
has qualifying loans if enlisting for the LRP, and requires that the
applicant be advised of any loan that is not eligible.  The applicant, in
the Remarks Section of the DD Form 1966 series, must acknowledge these
conditions.

8.  The regulation further states that Guidance Counselors are specifically
required to confirm they accomplished all the processing procedures by
making the appropriate entries on a Record of Military Processing - Armed
Forces of the United States (DD Form 1966) and DA Form 3286-66.  This
includes a statement
advising members of any loan he or she has that is not eligible for
repayment and ensuring the applicant’s acknowledgement of this fact is also
recorded in the remarks section of the DD Form 1966.

9.  Title 10, U.S. Code, section 1552, the law which governs the operation
of 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 applicant’s loan did not meet the criteria established by law;
however, this is not the overriding factor in this case, given the equity
considerations and the resultant injustice.

2.  The applicant enlisted assuming his loan was covered under the LRP.
Now, it has been determined that this information is incorrect.

3.  As noted by the HRC, the contested loan is not insured under the Higher
Education Act of 1965 and does not fall within that Act.  Therefore, the
LRP does not allow repayment of the applicant's loan.

4.  Notwithstanding the above, there is no evidence to indicate that, prior
to enlisting, the applicant was ever clearly told his loan was not
repayable under the LRP.  The applicant's recruiter did not certify on DD
Form 1966 and DA Form 3286-66 that the applicant's loan did not qualify.
The regulatory citations in the evidence of record shows that it is the
responsibility of recruiting personnel to review all student loan
agreements prior to enlisting the soldier to ensure that the soldier knows
exactly which loans qualify for repayment under the LRP prior to
enlistment.

5.  The applicant enlisted in good faith believing that the Army would
honor its commitment and pay his student loan.  The applicant completed
basic training and was subsequently assigned to a unit and is performing
the duties of his job specialty.  The applicant is keeping his commitment
and honorably serving his country.

6.  The applicant was improperly counseled in regard to LRP benefits, thus
leading to an injustice.  It is concluded that it would be appropriate to
rectify this injustice at this time.  Therefore, in the interest of justice
and equity, it would be appropriate to provide the applicant benefits equal
to those outlined in his enlistment contract.

7.  In doing so, 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 official 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 institution would have been paid for his
loan obtained on 26 December 2000.

BOARD VOTE:

__bje___  __klw___  __phm___  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, Statement of Understanding, US Army
Incentive Enlistment Program, be amended to include the sentence, “If a
student loan is accepted by the official processing you for enlistment as
payable under the LRP, and the government fails to verify that the accepted
student loan 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, at its sole discretion, pay the loan in accordance with Title
10, U.S. Code, section 1552.”

2.  That as a result of the above correction the Defense Finance and
Accounting Service (DFAS) shall remit payment to the applicant of the total
amount of the loan to which he is entitled as a result of this correction
at the appropriate rate and time.  The applicant will submit the
appropriate evidence (promissory notes, etc.) to the DFAS to determine the
amount due, if required.



                                        Barbara J. Ellis
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008803                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.1200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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