RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 November 2005
      DOCKET NUMBER:  AR20050002412


      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. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, that the Army's Loan Repayment
Program (LRP) pay his student loans.

2.  The applicant states, in effect, that he was incorrectly counseled and
his school loans need to be repaid as outlined in his enlistment contract
with the Army.  These loans, he states, were incurred solely to pay for his
college education expenses.  He was advised by Army career counselors at
the Richmond MEPS (Military Entrance and Processing Station) that the loans
were eligible for repayment under the LRP.  Having been assured that the
loans did qualify, he enlisted for 5 years as a Special Forces recruit.
When first notified that his loans did not qualify, he checked into the
matter since this was one of the main reasons for his enlistment.  At the
time, he was informed by both his recruiter and a representative from Fort
Knox Recruiting Command that they both felt the loans qualified for
repayment but would send them forward to Human Resources Command for review
and consideration.

3.  The applicant provided the following documents with his application to
the Board:  a copy of his Statement for Enlistment-United States Army
Enlistment Program; a copy of a DD Form 4/1, Enlistment/Reenlistment
Document –Armed Forces of the United States; a copy of five completed DD
Forms 2475, DOD Educational Loan Repayment Program (LRP) Annual Application
forms in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the US Army
Reserve, Army Delayed Enlistment Program, for 8 years, on 18 June 2003.

2.  On 28 October 2003, the applicant enlisted in the Regular Army for 5
years for enlistment options 9A (US Army Training Enlistment Program) and
9C (US Army Incentive Enlistment Program (US Army High Grad Bonus (60+
Semester Hours), US Army Loan Repayment Program, and a US Army Cash Bonus,
5 year Enlistment).  The applicant is currently on active duty in the Army.

3.  On 18 June 2003, the applicant signed, and thus acknowledged, on page
seven, of an eight-page automated Statement for Enlistment – United States
Army Enlistment Program, that he had read and understood all promises and
guarantees made to him concerning his enlistment.

4.  Item 2, of the above referenced eight-page automated Statement for
Enlistment – United States Army Enlistment Program, shows the incentive
programs that the applicant selected.  Included among the choices he made
was the US Army Loan Repayment Program.

5.  Item 3 of the above referenced eight-page automated Statement for
Enlistment – United States Army Enlistment Program, acknowledges that he
was scheduled for enlistment in the US Army on 28 October 2003.  This same
item contains the applicant's understanding related to his obligation to
the Army and the Army's obligations to him regarding the LRP.  Key among
these understandings are that:

      a.  only certain loans qualify for the LRP;

      b.  if his enlistment was for the LRP, that he must disenroll from the
MGIB at the time he entered on active duty and, if he failed to complete
the disenrollment portion of the DA Form 2366 (Montgomery GI Bill Act of
1984), he would not be eligible for the LRP and would become automatically
enrolled in the MGIB;

      c.  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 of
such act (National Direct Student Loan) after 1 October 1975 and before he
enlisted into the Regular Army;

      d.  enlistment for the LRP ensured him, provided that he met and
maintained the prescribes prerequisites, that the portion or amount of the
loan that may be repaid is thirty-three and one third percent or $1,500,
whichever is greater, of the unpaid principal balance for each year of
service completed;

      e.  repayment would be made only after each successful year of active
duty that he performed commencing on the date of his enlistment in the
Regular Army; and

      f.  he must coordinate with and provide additional critical
information (on DD Form 2475 (DoD Educational Loan Repayment Program (LRP)
Annual Application) to the Education and Incentives and Counseling Branch
(EICB).
6.  The applicant completed and signed an automated DD Form 2366 to
disenroll himself from participation in the MGIB on 18 June 2003.

7.  There is no indication on the Statement for Enlistment or in an annex
to the form that any question was raised with regard to his eligibility for
the LRP.  There is also no indication that the applicant was advised that
any of his loans did not qualify for payment under the LRP.

8.  On 26 September 2004, the applicant completed and submitted five DD
Forms 2475 to the EICB, US Army Human Resources Command.

9.  On 14 December 2004, the applicant was notified by the EICB, US Army
Human Resources Command, that based on the information provided by Sallie
Mae Servicing Corporation, it was determined that the loans disbursed to
him on 17 December 2002 and 16 April 2003 totaling $12,604.32 did not
qualify for repayment under the LRP.  He was also notified on the same
date, that based on the information provided by Citibank, it was determined
that the loans disbursed to him on 25 September 2000, 16 January 2001, and
9 October 2001, totaling $31,962.86 did not qualify for repayment under the
LRP.  The applicant was advised that if he felt that he was not properly
counseled or that an error or injustice had occurred, he could apply to
this Board.

10.  The applicant applied to this Board on 6 February 2005 and, the
application was received for processing on 16 February 2005.  With his
application to the Board, the applicant submitted a self-authored rebuttal
to the denial he received from the EICB, US Army Human Resources Command.
In the rebuttal, the applicant made those statements shown in his request
in the initial paragraph 2 above.

11.  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 of the loan to be repaid.

12.  AR 601-210, Chapter 6, MEPS Processing Phase, provides policy and
guidance for those functions that are administered at MEPS by MEPCOM
(Military Entrance Processing Command) personnel and guidance counselors.
Paragraph 6-5.g. states that the guidance counselor "counsels applicants
who failed to meet specific qualifications for options for which they
applied; advises them of other available options."

13.  AR 601-210, Table 9-4, line 7, states that guidance counselors will:

      a. complete the required entries on the DD Form 1966;

      b. if enlisting for the LRP, disenroll the applicant or Soldier from
the MGIB; and


      c. verify that the applicant has qualifying loans if enlisting for the
LRP.  Advise applicant if any loan is not eligible and have the applicant
acknowledge same in the remarks section of the DD Form 1966-series
(emphasis added).

14.  United States Army Recruiting Command (USAREC) Regulation 621-1,
paragraphs 4-4a., which supplements Army Regulation (AR) 601-210, states
that "Applicants are no longer authorized to ship without documents or
verification of eligible loans."

15.  The procedures, outlined in paragraphs 13 and 14 above, are also
contained in USAREC Regulation 601-96 (Guidance Counselor Procedures),
Appendix N, paragraphs N-3.d (3).

16.  Forms included in the applicant's available enlistment documents were
reviewed for any indication or remarks that any of the applicant's loans
was not eligible for repayment under the LRP.  None was found.

17.  Title 10, US 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.  The evidence supports the applicant's contention that he was
incorrectly counseled about the eligibility for repayment of his loans
under the LRP by both his recruiter and by his guidance counselor at the
MEPS.

2.  There is an absence of entries on required enlistment documents that
must be completed at the MEPS before a Soldier ships to basic training.  In
particular, his enlistment documents are silent as it pertains to any
information pertinent to the eligibility for repayment of his student
loans.  This silence means that there was no question about the loans'
qualification for repayment under the LRP.

3.  The applicant disenrolled from the MGIB, as he was required to do at
the time he entered active duty in order to qualify for the LRP.

4.  It is evident that the applicant’s loans did not meet the LRP
criteria established by law and regulation; however, this is not the
overriding factor in this case, given the equity considerations and the
resultant injustice to the applicant.

5.  From the evidence, it appears that the promissory notes were reviewed
but the individuals involved in his recruitment process did not have the
knowledge to determine if they qualified for repayment under the LRP or
not.  The applicant alleges that he was told that the loans appeared to
qualify for repayment but they would send them forward "for review and
consideration to Human Resources Command."

6.  The applicant's allegation is supported by the fact that he was
authorized to ship to basic training.

7.  The applicant made application to the EICB in accordance with the
agreement he signed, specifically pages 2 and 3 of the 7-page Statement for
Enlistment, and was notified that his loans (totaling an estimated
$44,567.18) did not qualify for repayment under the LRP.
8.  The evidence shows that the applicant entered into an erroneous
contract with the Army, through no fault of his own, based on the failure
of the guidance counselor to strictly follow established regulatory
guidelines and procedures in connection with his recruitment and enlistment
processing.  Given the failure by his guidance counselor to follow clearly
established policies and procedures, the Board concludes that it would be
appropriate to rectify the resultant injustice to the applicant at this
time.  The Board finds that it would be equitable and in the interest of
justice to provide the applicant the LRP benefits committed to in his
enlistment contract at the time of his enlistment.

9.  Broad discretion is available to this Board under Title 10, US Code,
Section 1552, which includes the authority to amend the applicant’s
enlistment contract to include the sentence, “If a student loan is
accepted by the officials processing you for enlistment as payable under
the LRP and the government fails to verify that all student loans accepted
actually are eligible, under the Higher Education Act of 1965, and such
failure results in nonpayment of the loan by the LRP, the Army Board for
Correction of Military Records may pay the loan, at its sole discretion,
in accordance with Title 10, US Code, section 1552;”  This amendment of
the DA Form 3286-66 allows the Board to invoke that provision and pay the
applicant or lending institutions, on behalf of the applicant, the amount
that would have been paid towards satisfaction of outstanding student
loan(s), verified at the time of his enlistment.

10.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

__CD____  _JI_____  _TDH  __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

      a.  amending the applicant's enlistment contract to include the
statement,  “If a student loan is accepted by the officials processing you
for enlistment, as payable under the LRP, and the government fails to
verify that all student loans accepted actually are eligible under the
Higher Education Act of 1965, and such failure results in nonpayment of the
loan by the LRP, the Army Board for Correction of Military Records may pay
the loan, at its sole discretion, in accordance with Title 10, US Code,
section 1552;”


      b.  that as a result of the foregoing correction the Defense Finance
and Accounting Service shall remit payment to the applicant in the amount
of $44,567.18 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.




                                  __  Thomas D. Howard_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050002412                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  222  |112.0000                                |
|2.   226                |112.0400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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