RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002067


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane Armstrong               |     |Member               |
|     |Ms. Delia Trimble                 |     |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 from the Connecticut
Assistance for Loan Servicing (CALS) be repaid under the provisions of the
Army's Loan Repayment Program (LRP).

2.  The applicant states that prior to enlisting he was told by his Army
recruiter and by the Army liaison officer that his CALS student loan would
be eligible, covered, and paid under the loan repayment program.  He states
finding out a year later that the loan was not eligible is a breech of
contract.

3.  The applicant provides a statement from his recruiter confirming he
believed the applicant's loan would be paid.  He also submits an 8 June
2004 letter from the Education Incentives and Counseling Branch informing
him the CALS loan did not qualify for repayment under the loan repayment
program.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Delayed Entry Program on 30 June 2003.
His Statement for Enlistment United States Army Enlistment Program shows
that he enlisted for the LRP up to a maximum repayment of $65,000 in
addition to other incentives.  On this form, he acknowledged that under the
LRP 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 of 1965 or any loan under Part E of such act after 1 October 1975 and
before he enlisted into the Regular Army.

2.  The statement also noted that he was required to disenroll from the
Montgomery GI Bill (MGIB) in order to qualify for the LRP at the time he
entered active duty.  If he failed to complete the disenrollment form he
would not be eligible for the LRP.

3.  None of the applicant's enlistment documents (to include his Department
of Defense Form 1966 (Record of Military Processing – Armed Forces of the
United States)) identified what student loans he had.

4.  The applicant enlisted in the Regular Army on 28 August 2003.  Prior to
entry on active duty he obtained a CALS student loan.

5.  On 30 June 2003 the applicant completed a form disenrolling from the
MGIB.


6.  On 8 June 2004 he was informed by the Education Incentives and
Counseling Branch at the United States Army Human Resources Command-
Alexandria, that his CALS loan did not qualify for repayment under the LRP
because it was a private loan.  He was notified his loan was not made,
insured, or guaranteed under Title IV Part B, D, or E of the Higher
Education Act.

7.  The Loan Repayment Program is a Department of the Army enlistment
option authorized by Public Law 99-145.  This option is designed to
increase Test Score Category I-IIIA accessions.  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.  Before entering
active duty, the loan must not be in default.  The borrower is responsible
for obtaining a deferment/forbearance with the loan holder and the loan
must remain in good standing throughout the repayment process.  Active Army
LRP participants earn their first loan repayment after completion of a full
year of active duty and for each full year thereafter, up to 3 years.
Payment of 33 1/3 percent or $1,500, whichever is greater, is authorized
annually to the loan holder on the total remaining original outstanding
principal balance.

8.  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.

9.  In the processing of this case, an advisory opinion from the Education
Incentives and Counseling Branch at the U.S. Total Army Personnel Command
(PERSCOM) was obtained.  They indicated, in effect, the applicant
acknowledged in his enlistment contract that he understood the limitations
of the LRP and recommended his request be denied.  They noted, however, the
government was making payments towards the applicant's $17,125.00 of
qualifying loans and that his outstanding balance on the non-qualifying
loan was $26,756.22.  They stated the applicant had a combined total of
$79,881.22 in both qualifying and non-qualifying loans which exceeded the
maximum payable limit of $65,000.00 and recommended that if the Board chose
to authorize any compensation, that he be paid $47,875.00 towards his non-
qualifying loan which would raise the applicant's total loan repayment to
the maximum payable limit as authorized by his enlistment contract
($17,125.00 in qualifying loan plus $47,875.00 in non-qualifying loan
payments equals the $65,000.00 maximum payable limit).
10.  The applicant was provided an opportunity to respond to the advisory
opinion but indicated in a telephone conversation he would not be
submitting a response.

11.  The applicant’s recruiter provides a statement supporting the
applicant’s request.  The recruiter states at the time the applicant
enlisted, both his recruiter and the guidance counselor were both under the
impression that all of his loans would be paid and that nothing in his loan
paperwork indicated otherwise.

12.  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 U. S.
Army Reserve.  Chapter 9 (Enlistment Programs/Options) states that these
programs/options are designed to merge valid Army requirements with
personal desires.

13.  Army Regulation 601-210, Table 9-4 contains guidance on enlistment
option program 9C (Bonus/Army College Fund/Loan Repayment Program).  Table
9-4 provides program processing procedures that require specific counseling
and administrative actions in connection with processing members enlisting
with the LRP incentive.  In addition, Line 7 of Table 9-4 requires the
guidance counselor to verify that the applicant has qualifying loans if
enlisting for the LRP, to advise the applicant if any loan is not eligible,
and to have the applicant acknowledge same in the remarks section of the DD
Form 1966 series.

14.  U. S. Army Recruiting Command Regulation 621-1 (Montgomery GI Bill,
Army College Fund, and Loan Repayment Program), current version effective
30 November 1998, paragraph 4-4a states that applicants for the LRP are no
longer authorized to ship without documents or verification of eligible
loans.

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 apparent the applicant’s CALS 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 is
required.  However, this is not the overriding factor in this case given
the equity considerations and the resultant injustice.

2.  The applicant’s enlistment contract established a contractual agreement
between the applicant and the Army.  His contention that he believed all of
his student loans would be repaid as part of his enlistment contract is
supported by the statement from the recruiter.

3.  In addition, governing regulations require that Army Guidance
Counselors 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.
Finally, counselors must 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.

4.  Although the applicant may have been unaware that not all of his loans
would qualify for repayment and his enlistment personnel were remiss in not
properly documenting the ineligibility of the applicant's CALS loan, the
applicant was aware, based on initials on his enlistment contract, that the
maximum repayment amount under the LRP was limited to $65,000.00.

5.  In view of the facts of this case, it appears that 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 this enlistment processing, through no fault of his own.
Given the failure on the part of government officials to follow its own
regulations during the applicant's enlistment processing, it is appropriate
to rectify the resultant injustice at this time, subject to the $65,000.00
maximum loan repayment limits.

6.  In doing so, the applicant's military records should be corrected to
show his Statement for Enlistment United States Army Enlistment Program 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, subject to the maximum loan repayment limits of
$65,000.00."  This would allow the Board to invoke that provision and pay
him the amount the lending institution would have been paid for the CALS
loan.

BOARD VOTE:

__SK ___  __DA ___  __DT  ___  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 for Enlistment United
States Army 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 subject to the maximum loan repayment limits of
$65,000.00."

2.  That as a result of the foregoing correction the Defense Finance and
Accounting Service (DFAS) shall remit payment to the applicant towards his
CALS student loan, in the amount of $47,875.00, 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                 |AR20050002067                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|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.       |112.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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