RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 January 2005
      DOCKET NUMBER:  AR2004105227


      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:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 all of her student loans be repaid under
the Loan Repayment Program (LRP).

2.  The applicant states:

      a.  She graduated from college and decided to join the Army, opting to
join as an enlisted Soldier because, had she joined as an officer, she
would not have been eligible for the LRP.

      b.  She did not have any friends or family who had served in the
military thus she relied on information provided by her recruiter.  She
showed him her college transcripts and loan documents and was assured that
her loans would be paid up to the limit of $65,000.00.

      c.  She would have joined as an officer or opted to go to graduate
school had she known that most of her loans were nonqualifying.

3.  The applicant provides:

      a.  An undated, self-authored statement.

      b.  A loan statement showing loan amounts of $8,000, $11,000, $2,100,
and $700.

      c.  A copy of a 23 February 2004 letter from the Chief, Education
Incentives and Counseling Branch, US Army Human Resources Command (HRC) –
Alexandria (VA) disapproving repayment of a portion of her educational
loans as non-qualifying under the LRP.  This document also attaches 4 DD
Forms 2475 (DOD Educational Loan Repayment Program Annual Application) and
various promissory notes.

      d.  A copy of DA Form 3286-59 (Statement for Enlistment) showing
enlistment for the LRP.

      e.  A copy of DD Form 4/2&3 (Enlistment Contract)

      f.  A copy of DA Form 3286-66 (Statement of Understanding – Incentive
Enlistment Program), labeled "Annex D," showing she enlisted for the LRP to
a maximum amount of $65,000.00.

CONSIDERATION OF EVIDENCE:

1.  On 26 April 2002, the applicant enlisted in the Delayed Entry Program
(DEP). Her DA Form 3286-66 (Statement of Understanding-US Army Incentive
Enlistment Program) shows she enlisted for Option 9B, the US Army
Unit/Command/Area Enlistment Program - Europe, and Option 9C, US Army
Incentive Enlistment Program - High School Graduate Bonus ($8,000) and the
LRP with a maximum repayment of $65,000.  The applicant authenticated DA
Form 3286-66 indicating that she understood the provisions of the LRP.

2.  On 4 September 2002, the applicant enlisted in the Regular Army (RA)
for a period of 4 years.  Upon enlistment, she authenticated her DA Form
3286-66 to show that she enlisted in the Regular Army for the LRP and other
options.

3.  The evidence of record shows the applicant is currently serving on
active duty in the rank of Specialist (SPC/E-4).  On 17 August 2003, the
applicant submitted DD Form 2475 (DOD Educational Loan Repayment Program
Annual Application) seeking repayment of her student loans.  The loan
applications, for loans totaling $28,136.04, came back disapproved as not
qualifying for the LRP.  Loans totaling $11,467.00 were approved for
payment as qualifying loans.

4.  On 19 April 2004, in connection with this application, HRC-Alexandria
provided an advisory opinion stating, in essence, that they had previously
advised the applicant in writing on 23 February 2004 that some of her loans
did not qualify for repayment because they 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.

5.  The HRC advisory opinion recommended disapproval of the applicant's
request for repayment of her nonqualifying student loans, stating that
based on the documentation provided by the applicant, her "Private Loans"
did not qualify for payment under the LRP because they were not made,
insured, or guaranteed under Title IV, Part B, D, or E of the Higher
Education Act of 1965.

6.  The HRC advisory opinion concluded that the applicant's nonqualifying
loans had an outstanding balance of $28,136.04 and if the Board determined
to grant her any portion of compensation that the payment be sent directly
to her.

7.  On 29 April 2004, the above advisory opinion was referred to the
applicant for comment or rebuttal.  In a 20 May 2004 response, the
applicant acceded that the LRP program details are contained in a mountain
of enlistment papers she
signed, but reiterated that she is not an expert and relied on the advice
of "experts" in the recruiting business who assured her that her loans
qualified.  She adds that she enlisted assuming that her loans would be
paid up to $65,000.00.

8.  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.

9.  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."

10.  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.

11.  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.  In the applicant's case, her recruiter took great pains to
record her tattoo, but made no mention of her student loans.

12.  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.  Certain of the applicant’s loans do not meet the repayment 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 her recruiter/guidance
counselor that all of her loans, including her "Private Loans," were
covered under the LRP, made her decision to enlist.  Now, it has been
determined that this information is incorrect.

3.  As noted by the HRC, the contested loans are not insured under the
Higher Education Act of 1965 and do not fall within that Act.  Therefore,
there are no Army records that can be corrected that would allow the
repayment of these loans under the LRP.

4.  Notwithstanding the above, there is no evidence to indicate that, prior
to enlisting, the applicant was ever clearly told her "Private Loans" were
not repayable under the LRP.  The applicant's recruiter was obligated to
record all nonqualifying student loans on DD Form 1966; while he was
diligent enough to record body markings and tattoos, he made no entry as to
student loans.

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 her student loans.  The applicant completed
basic training and is currently serving as a Specialist stationed in
Schweinfurt, Germany.  The applicant is keeping her commitment and
honorably serving her 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 her enlistment contract.

8.  In doing so, the applicant’s military records may be corrected to show
her 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 her the amount her lending institution would have been paid for her
"private loans."

BOARD VOTE:

__wtm___  __ecp___  __jrm___  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 nonqualifying "Private Loans," to which she 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.



                                        Walter T. Morrison
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105227                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050113                                |
|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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