RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:  AR2004099992


      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             |
|     |Ms. Carolyn Wade                  |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, in effect, that he enlisted for the LRP as an
option in his enlistment contract and that the recruiter/guidance counselor
told him that his loan qualified for the LRP.  Now, the Army is telling him
that his loan does not qualify for payment under the LRP.  He believes his
recruiter did not properly counsel him at the Military Entrance Processing
Station (MEPS) and that he was given false information because it is stated
in his contract that his loan qualified for payment under the LRP.

3.  The applicant provides:

      a.  A self-authored two-page letter, dated 22 October 2003, on his
behalf.

      b.  A copy of a Power of Attorney, dated 12 March 2003, authorizing
his spouse to act on his behalf.

      c.  A copy of the Private Educational Loan Program Student Loan Exit
Interviews, dated 27 July 2000.

      d.  A copy of DD Form 1966, dated 13 October 2004.

      e.  A copy of Permanent Orders Number 230-1, Headquarters 1st Cavalry
Division, Fort Hood, Texas, dated 18 August 2003, temporarily attaching the
applicant to the 82nd Airborne Division in support of Operation Iraqi
Freedom.

      f.  A copy of Permanent Orders Number 231-1, Headquarters 1st Cavalry
Division, Fort Hood, Texas, dated 19 August 2003, attaching the applicant
to Bravo Company, 9th Cavalry Regiment.

      g.  A copy of DD Form 4/1 (Enlistment/Reenlistment Document), dated
8 November 2000.

      h.  A copy of a letter from the Chief, Education Incentives and
Counseling Branch, dated 12 December 2001, advising the applicant that his
student loan does not qualify for payment under the LRP.

      i.  A copy of DD Form 2475 (Department of Defense LRP Annual
Application, dated 21 November 2001.

      j.  A 23 October 2003 letter to his Congressman requesting assistance
in resolving payment of his Private Educational loans.

      k.  A 27 October 2003 letter to Human Resources Command-Alexandria
seeking assistance for his constituent and a 3 November 2003 response from
the Director of the Army Continuing Education System to his Congressman.

      l.  A copy of the applicant's enlistment reservation and orders
Number 211-08, Military Entrance Processing Station, Charlotte, North
Carolina, dated 8 November 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in Iraq at the time this application was
filed by his spouse with power of attorney.

2.  On 18 October 2000, 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, and bonus cash award.  The applicant authenticated
DA Form 3286-66 indicating that he understood the provisions of the LRP.

3.  On 8 November 2000, 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.
The applicant also provided a copy of all of his promissory notes for all
of his educational loans to include his Private Educational Loan.

4.  The evidence of record shows the applicant is currently serving on
active duty in the rank ofSergeant/E-5.  On 21 November 2001, the applicant
submitted DD Form 2475 (DOD Educational Loan Repayment Program Annual
Application) seeking repayment of his student loan.  The loan application,
for a loan totaling $9,500.00, came back disapproved as not qualifying for
the LRP.

5.  On 19 April 2004, in connection with this application, the Department
of the Army Human Resources Command (HRC) provided an advisory opinion
stating, in effect, that they had previously advised the applicant in
writing on
12 December 2001 that his loan did not qualify for repayment because it was
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.

6.  The HRC advisory opinion recommended disapproval of the applicant's
request for repayment of his student loan, stating that based on the
documentation provided by the applicant, his "Private Educational Loan" did
not qualify for payment 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.

7.  The HRC advisory opinion concluded that the applicant's loan had an
outstanding balance of $9,500.00 and if the Board determined to grant him
any portion of compensation that the payment be sent directly to him.

8.  On 29 April 2004, the above advisory opinion was referred to the
applicant for comment or rebuttal; he failed to respond.

9.  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.

10.  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."

11.  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 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.

12.  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.

13.  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 loans do 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, based on information provided by his recruiter/guidance
counselor that his Private Educational Loan was covered under the LRP, made
his decision to enlist.  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, there
are no Army records that can be corrected that would allow the repayment of
the applicant's loans under the LRP.

4.  Notwithstanding the above, there is no evidence to indicate that, prior
to enlisting, the applicant was ever clearly told his Private Educational
Loan was not repayable under the LRP.  The available evidence of record
shows the applicant provided the appropriate loan documentation to his
recruiter.  His wife also supports his contention that he was told by the
Army/MEPS personnel that his loan qualified for repayment.

5.  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.

6.  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 Iraq to support Operation
Iraqi Freedom.  The applicant is keeping his commitment and honorably
serving his country.

7.  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 the LRP benefits outlined
in his enlistment contract.

8.  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 15 September 1997.

BOARD VOTE:

__mdm___  __lds___  __lgh___  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 obtained from the Private Educational Loan beginning
Fall 1997, 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.



                 Mark D. Manning
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004099992                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041109                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.0000                                |
|2.                      |128.0014                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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