RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 November 2005
      DOCKET NUMBER:  AR20050000365


      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. Prevolia A. Harper            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |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, proportional payment of a college
loan under the terms of the Loan Repayment Program (LRP).

2.  The applicant’s Veterans Service Representative states, in effect, that
the applicant’s Army contract authorized the repayment of his student loans
under the LRP incentive.  He claims the Army now indicates that one loan he
received from the Sallie Mae Corporation does not qualify for repayment
under the LRP.

3.  The applicant provides a copy his DD Form 4/1 (Enlistment/Reenlistment
Document) and a DD Form 19661/1 (Record of Military Processing –Armed
Forces of the United States.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Army on 21 August
2002 for a period of three years.  In connection with his enlistment he
enrolled in the LRP.  The applicant’s LRP Addendum (Form 1150-R-E)
Statement of Understanding-Army Policy included with his enlistment
contract confirms that he enlisted in the Army with entitlement to
repayment of student loans in an amount not to exceed $65,000.

2.  A DA Form 3286-66 (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 $1500, whichever was the greater of the unpaid principal balance
for each year of service completed up to a maximum of $65,000.

3.  The LRP provisions of Annex D, state, in pertinent part, that the
applicant understood that 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 would repay a designated portion of any loan incurred that was
made, insured or guaranteed under Part B of the Higher Education Act of
1975 (Guaranteed Student Loan) or any loan under Part E such as the
National Direct Student Loan after 1 October 1975 and prior to enlistment
into the Regular Army.




4.  The applicant and his service representative signed Annex D to his
enlistment contract on the date he entered active duty, 21 August 2002, and
there is no indication in the Annex that any questions were raised
regarding the eligibility of his student loans for repayment.

5.  On 21 August 2002, 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 1963/3 and 1966/4).
 These documents contained an entry confirming the applicant’s
participation in the LRP 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 the applicant’s student loans.

6.  On 9 October 2003, the Army Human Resources Command, Education
Incentives and Counseling Branch, notified the applicant that one of his
loans did not qualify for the LRP because it was not insured or guaranteed
under Title IV, Part B, D, or E of the Higher Education Act.  The applicant
was placed on the Temporary Disability Retired List on 1 October 2004.

7.  During the processing of this case, an advisory opinion was obtained
from the Human Resource Command, Acting Chief, Education Incentives and
Counseling Branch.  The HRC official recommends disapproval of the
applicant’s request based on the Sallie Mae Servicing Corporation (SMSC)
loan in question not being eligible for repayment under the terms of the
applicant’ 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.  HRC stated that since the applicant was discharged after completing
2 years, 1 month, and 11 days of active duty, he is eligible for a prorated
payment under the LRP for his third year of active duty.  The total
remaining original unpaid principal verified for the applicant’s Parent
Loan for Undergraduate Students is $27,707.56 and Stafford Loans is
$5,991.30.  HRC further indicates that appropriate payment for the
veteran’s first year, second year, and prorated third year of active duty
totaling $23,401.99 have been authorized toward his qualifying student
loans.

9.  The HRC Acting Chief, Education Incentives and Counseling Branch
further stated that if the Board decides to grant compensation toward the
Private Student Loan, she recommends that the computation of any payment be
based on the information obtained from SMSC.  Additionally, she stated that
the total outstanding balance on the non-qualifying private student loan is
$4,545.75;
however, the appropriate payment for the applicant’s first year, second
year, and prorated third year of active duty would be $3,156.77 and should
be paid directly to the applicant.

10.  On 19 May 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, the applicant has failed to respond.

11.  Army Regulation 601-210 (Regular Army and Reserve Enlistment Program)
prescribes the 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 guidelines pertaining to the
Guidance Counselor Processing Phase.  It states, in pertinent part, that
Guidance Counselors will use supporting automated systems and updated
regulatory material applicable to military occupational specialties and
available options to counsel all applicants who fail to meet specific
qualifications for options for which they applied and advise them of other
available options.

12.  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.

13.  Table 9-4 of the enlistment regulation further stated 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.

14.  The LRP is a Department of the Army enlistment option authorized by
Title 10 of the United States Code, section 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 which qualify for repayment are Guaranteed
Student Loan/Stafford Loans, National Direct Student Loan/Perkins Loan,
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.

15.  Title 10, United States Code, section 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.

17.  Title 10, United States Code, section 1552, provides that the
Secretary concerned may pay, from applicable current appropriations, a
claim for 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 SMCS 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 required.  However, this is not
the overriding factor in this case.

2.  The Statement of Enlistment included in the applicant’s enlistment
contract established a contractual agreement between the applicant and the
Army.  The evidence of record shows that 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 departure for active duty.  Further, these
counselors are obligated to advise applicant’s on any options they agreed
to, but are not eligible for, and on any available alternatives.  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 the
applicant 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 the applicant’s enlistment processing.  Therefore, it would
be equitable to correct the Statement of Enlistment to show it 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 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, United States Code, section 1552.”

BOARD VOTE:

___SK __  __MHM__  __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 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, United States Code, section 1552.”

2.  That as a result of the foregoing correction, the Defense Finance and
Accounting Service shall remit payment to the applicant the total prorated
amount of his Sallie Mae Servicing Corporation loan, in the amount of
$3,156.77, to which he is entitled as a result of this correction.  If
required, the applicant will submit the appropriate evidence (promissory
notes, etc.) to the Defense Finance and Accounting Service.



                                  _____ Stanley Kelley________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000365                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051129                                |
|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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