RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September 2005
      DOCKET NUMBER:  AR20040009727


      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. David S. Griffin              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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, repayment of his student loan, which
was denied by the Education Incentives Branch, Human Resources Command
(HRC).

2.  The applicant states, in effect, that when he enrolled in the Loan
Repayment Program, both his recruiter and personnel at the Military
Entrance Processing Station (MEPS) confirmed that both of his student loans
submitted qualified under this program.

3.  The applicant provides a copy of:

      a.  a statement, dated 31 August 2004, from his recruiter who states
that he and the personnel at the MEPS reviewed the applicant's paperwork
and agreed that both of the applicant's loans qualified under the Loan
Repayment Program (LRP).  The recruiter further stated that the applicant
"was shipped with the understanding that his loans were covered";

      b.  a DD Form 2475 (DOD Educational Loan Repayment Program (LRP)
Annual Application), dated 22 June 2004, that shows an outstanding balance
of $22,893.70 for the loan from American Education Services (AES); and

      c.  a Loan Application/Promissory Note, Education One Undergraduate
Loan Program to Bank One, NA (Ohio) that shows the loan amount requested as
$18,250.  (A phone conversation with the Education Incentives Branch at HRC
determined that Bank One approved the loan and AES is the servicing agency
for the loan, thereby showing that both documents refer to the same loan.)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular
Army on 15 August 2003 for a period of 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 LRP is one of the incentives
authorized and the applicable LRP terms are listed in paragraph 4 of this
form.

2.  The LRP provisions of Annex D state, in pertinent part, that the
applicant understood he must be disenrolled from the GI Bill at the time he
entered active duty and if he failed to do so he would not be eligible for
the LRP.  It also indicates that the applicant understood that 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
(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 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 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 guidance counselor signed Annex D to his
enlistment contract on the date he entered active duty and there is no
indication in this Annex that any questions were raised regarding the
eligibility of his student loans for repayment.

5.  On 15 August 2003, the Army 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 certified that no changes to the agreements in the
applicant’s enlistment documents were necessary and there was no indication
or entries regarding the eligibility/ineligibility of any of his student
loans.

6.  In the processing of this case, an advisory opinion, dated 21 December
2004, was provided by the Acting Chief, Education Incentives, HRC.

7.  The HRC stated that the applicant's Alternative Private Education Loan
did not qualify for repayment under the LRP because it was not made,
insured, or guaranteed under Title IV, Part B, D, or E of the Higher
Education Act of 1965.

8.  HRC further stated that the applicant has a loan that qualifies for
repayment under LRP.  HRC stated that the total remaining original unpaid
principal verified by Oklahoma Student Loan Authority for his Stafford
Loans is $20,441.14 and that appropriate payments are being authorized
toward this qualifying student loan.

9.  The applicant was provided a copy of this opinion for rebuttal.  In his
rebuttal, dated 12 January 2005, the applicant stated, in effect, that
during his processing for enlistment he was assured by his recruiter and
the MEPS counselor that both of his student loans were qualified under LRP.
 It was not until he arrived at his first unit that he was informed by the
Education Incentive Branch that one loan did not qualify.

10.  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 US
Army Reserve.  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 military occupational specialties 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.

11.  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 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 Regular Army.

12.  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 LRP 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.

13.  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 LRP, which includes any factors that may disqualify him
or her from receiving the LRP benefit, and ensuring that the applicant’s
acknowledgement of this fact is also recorded in the remarks section of the
DD Form 1966.

14.  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.

15.  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.

16.  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.  As indicated in HRC's letter, dated 21 December 2004, the applicant’s
student loan from AES 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 applicant provided a statement from his recruiter stating the
applicant was told that all of his outstanding loans at the time of his
enlistment were determined to be in good standing and met all of the
qualifications required by the Army for repayment.  The lack of entry on
the applicant's DD Form 1966 noting that any of his student loans were not
eligible for repayment corroborates the recruiter's statement.  It would
therefore be in the interest of justice and equity to provide the applicant
the full LRP benefits outlined in his enlistment contract.

3.  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 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 the lending institution would have been paid for the
Alternative Private Education Loan.

BOARD VOTE:

___cak___  ___jns__  ____ena_  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 individual’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 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."

      b.  that as a result of the foregoing correction the Defense Finance
and Accounting Service shall remit payment to the applicant the total
amount of his AES loan in the amount of $22,893.70, to which he is entitled
as a result of this correction, at the appropriate time and rate.




                                  __________John N. Slone_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040009727                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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