RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 August 2005
      DOCKET NUMBER:  AR20040010270


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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, his Army contract authorized the
repayment of his student loans under the LRP incentive.  He claims the Army
now indicates one loan he received from the Sallie Mae Corporation does not
qualify for repayment under the LRP and he was advised to apply to this
Board for relief.

3.  The applicant provides the following documents in support of his
application:  Human Resources Command (HRC) Chief; Education Incentives and
Counseling Branch Letter; DOD Educational LRP Annual Application (DD Form
2475); and Statement of Understanding United States Army Incentive Program
(DA Form 3286-66).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 31 October 2001, he
enlisted in the Regular Army for four 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 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.  Annex D to the applicant’s enlistment contract 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 service representative signed Annex D to his
enlistment contract on the date he entered active duty, 31 October 2001,
and there is no indication in this Annex that any questions were raised
regarding the eligibility of his student loans for repayment.

5.  On 31 October 2001,  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 LRP request was updated based on receipt of his
transcripts and student loan information.  There was no indication or
entries regarding the eligibility/ineligibility of any of his student
loans.

6.  On 8 August 2003, the HRC Chief, Education Incentives and Counseling
Branch, notified the applicant that his Sallie Mae Servicing Corporation
(SMSC) loan did not qualify for repayment under the LRP.  The applicant was
advised to apply to this Board if he believed he had not been 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 SMSC loan in question not being eligible for repayment under the
terms of the applicant’s enlistment contract because it was 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.
8.  The HRC Acting Chief, Education Incentives and Counseling Branch
further states that if the Board decides to grant compensation, the total
amount requested of $6,168.19 for the non-qualifying College Advantage Loan
should be paid directly to the applicant.  HRC does indicate the applicant
has qualifying loans in the amount of $7,713.93 and $1,313.00 that are
being repaid under the provisions of the LRP.

9.  On 4 January 2005, 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.

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 (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.

11.  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.

12.  Table 9-4 of the enlistment regulation 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.
13.  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.

14.  10 USC 2171 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 loan did not meet the criteria
established by law and regulation to qualify for repayment by the Army
under the LRP.  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.  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.

4.  Finally, the enlistment 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.

5.  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 his enlistment processing, through no fault of his own.
Given the failure on the part of Government officials to follow their own
regulations during the applicant's enlistment processing, it is appropriate
to rectify the resultant injustice at this time.

6.  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 $6,168.19 due for the SMSC loans.
BOARD VOTE:

__MKP__  __REB __  __LMB__  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 $6,168.19 to the applicant as a result of this
correction, at the appropriate rate and manner.




            ___Margaret K. Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010270                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/25                              |
|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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