RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 August 2005
      DOCKET NUMBER:  AR20040008948


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richar T. Dunbar              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 a college loan under the
terms of the Loan Repayment Program (LRP).

2.  The applicant states, in effect, he was never counseled by his
recruiter in regard to the various types of loans that qualified or did not
qualify for repayment under the LRP.  Further, he was also never counseled
regarding the eligibility restrictions on loans repaid under the terms of
the LRP by his guidance counselor during his processing at the military
entrance processing station (MEPS) during his initial contracting.  In
addition, when he processed for departure for active duty at the Tampa,
Florida MEPS, his guidance counselor again failed to counsel him on LRP
requirements.

3.  The applicant provides a Self-Authored Statement, LRP Annual
Application (DD Form 2475), Enlistment Contract (DD Form 4) with associated
documents, and a Statement of Enlistment in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 1 October 2003, he
enlisted in the Regular Army for 4 years.  A Statement for Enlistment
prepared during his enlistment processing confirms the option and
incentives he contracted for during his enlistment processing.  The LRP,
Option 9C, is one of the incentives authorized.  The applicable LRP terms
are listed in paragraph 2 of this form.

2.  The LRP provisions in the Statement of Enlistment 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 LRP.  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.  The Statement of Enlistment further indicated that the applicant’s
enlistment for the LRP ensured him, provided he met and maintained the
prescribed prerequisites, that the portion or amount of his student loan
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.  The
applicant and service representative signed this document on the date he
entered active duty,
1 October 2003.
4.  On 1 October 2003, 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 Option 9C (LRP), but there were no entries regarding the
eligibility/ineligibility of any of his student loans.

5.  On 19 July 2004, the Acting Chief, Education Incentives and Counseling
Branch, Human Resources Command (HRC) notified the applicant his Sallie Mae
Servicing Corporation loan of $25,858.33 did not qualify for repayment
under the LRP.  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.

6.  The applicant’s unit commander provided a memorandum for HRC, dated
29 September 2004, in which he requested a resolution on the applicant’s
LRP incentive.  He stated the applicant, in spite of the problems related
to his enlistment contract, specifically the LRP payment, continued on a
path developing and maintaining his military courtesy.  He further stated
the applicant’s performance of duty was impeccable.  He concluded by
indicating he hoped that some resolution could be found in regard to the
applicant’s LRP issue that would allow him to continue his professional
development without having to be concerned over the error/oversight in his
enlistment contract.

7.  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 fail to meet specific qualifications for
options for which they applied and advise them of other available options.

8.  Table 9-4 of the enlistment regulation, in effect at the time of the
applicant’s enlistment, contained guidance on enlistment option program 9C
(Bonus/Army College Fund/Loan Repayment Program).  It contained specific
guidance pertaining to the LRP and indicated that the government would
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.
9.  Table 9-4 of the enlistment regulation, in effect at the time, further
stipulated that Guidance Counselors were required to confirm they
accomplished all the processing procedures by making the appropriate
entries in the DD Form 1966.  This included a statement regarding the
applicant’s eligibility for the LRP, which included any factors that could
disqualify him from receiving the LRP benefit, and ensuring the applicant’s
acknowledgement of this fact was also recorded in the remarks section of
the DD Form 1966.

10.  The LRP 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.  The law
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.

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.  It is clear the applicant’s student loan did not meet the criteria
established by law and regulation to qualify for repayment by the Army
under the LRP.  The loan was 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.  The Statement of Enlistment of the applicant’s enlistment contract
established a contractual agreement between the applicant and the Army, and
the record clearly shows the responsible recruiting officials failed to
make reference to any loans ineligible for payment under the LRP, as
evidenced by the absence of an entry in the remarks section of the DD Form
1966.

3.  In addition, the governing regulation requires 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,
the regulation in effect at the time of the applicant’s enlistment required
counselors to 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 loan on 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 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 Statement of Enlistment 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 $25, 858.33 due for the Sallie Mae Servicing
Corporation loan.

BOARD VOTE:

___JEA__  ___RTD_  __LMD__  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 Statement of Enlistment 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."

2.  Further, the Defense Finance and Accounting Service (DFAS) shall remit
payment in the amount of $25,858.33 to the applicant as a result of this
correction at the appropriate time and manner.




            ___James E. Anderholm___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008948                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/04                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1. 1026  |113.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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