RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050005985


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 (SLRP).

2.  The applicant states, in effect, that during the enlistment process
Army Guidance Counselors failed to follow the proper procedures in
counseling him and checking his loans to determine their qualification for
payment under the provisions of the SLRP.  He was advised that his loans
would be paid and he never received a "DD Form 1966 (Record of Military
Processing – Armed Forces of the United States) indicating the status" of
his loans.

3.  The applicant provides:

      a.  A loan application.

      b.  A promissory note and account summary for a Sallie Mae Financial
Corporation Educational Loan, signed by the applicant on 27 September 2001.

      c.  A letter from the United States (US) Army Human Resources Command
(HRC), Alexandria, Virginia, dated 27 October 2003.

CONSIDERATION OF EVIDENCE:

1.  On 22 August 2002, the applicant enlisted in the US Army Reserve (USAR)
for a period of 8 years under the Delayed Entry Program (DEP).  On
13 November 2002, he was separated from the DEP and he enlisted in the
Regular Army (RA) for 4 years and training in military occupational
specialty (MOS) 13D, Field Artillery Tactical Data Systems Specialist

2.  The applicant's official military personnel file (OMPF) contains a DD
Form 1966 and a computer-generated DA Form 3286-59 (Statement for
Enlistment, United States Army Enlistment Program, US Army Delayed
Enlistment Program). The documents confirm he enlisted for Option 9B, (US
Army Unit/Command/Area Enlistment Program) and assignment in Korea; and
Option 9C, US Army Incentive Enlistment Program for a cash bonus ($9,000),
and the SLRP.

3.  On 13 November 2002, the applicant authenticated his DA Form 3286-66
Statement of Understanding-United States Army Incentive Enlistment Program
acknowledging he understood the government would pay 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 1965 and
before enlistment into the RA.

4.  The evidence of record shows the applicant is currently serving on
active duty in the rank of Specialist/E-4.  On an unknown date, he
submitted DD Form 2475 (DOD Educational Loan Repayment Program Annual
Application) seeking repayment of his student loans.

5.  On 27 October 2003, the HRC advised the applicant that his loan in the
amount of $12,410.00, with Sallie Mae Servicing Corporation (SMSC) was a
career training loan and that it did not qualify for payment in accordance
with the SLRP.  The loan was not made, insured, or guaranteed under Title
IV Part B, D or E of the Higher Education Act.

6.  Further, the HRC advised that individuals enlisting with the SLRP as
part of their enlistment contract must meet certain eligibility criteria.
Part of the eligibility criteria is to have loans that qualify under the
SLRP.  Loans that are eligible for payment under the SLRP are Stafford,
Perkins and Parent Loans for Undergraduate Students, Supplement Loans, or
any loan made, insured, or guaranteed under the Higher Education Act, Title
IV, Part B, D, or E, prior to entry on active duty.  Payment toward loans
that do not qualify under the SLRP would be in violation of the law
governing this program.  There are no exceptions to the law.

7.  There is no evidence that the applicant has any loans that qualify for
payment under provisions of the SLRP.

8.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program)
prescribes the eligibility criteria governing the enlistment of persons,
with or without prior service in the RA and Army Reserve.  It contains
guidance pertaining to Enlistment Option 9C (Bonus/Army College Fund/SLRP).
 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 SLRP and indicates that the Government will
repay a designated portion (up to $65,000) 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 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.

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.

12.  The SLRP is a Department of the Army enlistment option authorized by
Public Law 99-145.  Loans that qualify for payment under the SLRP are
Guaranteed Student Loan/Stafford Loans, National Direct Student
Loan/Perkins Loans, William D. Ford Loans, Supplemental Loans for Students,
Federally Insured Student Loans, Parent Loans for Undergraduate Students,
Auxiliary Loan Assistance for Students, 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 SLRP participants earn their first loan
payment 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 $1,500.00,
whichever is greater, is authorized annually to the loan holder on the
total remaining original outstanding principal balance.  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 pay the lending
institution.

13.  Title 10, U.S.C., 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 payment 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 her or another service
in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may
be."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's SMSC loan does not meet the criteria established by law
for payment under the LRP; however, this is not the overriding factor in
this case given the equity considerations and the resultant injustice.

2.  The applicant's enlistment contract clearly establishes a contractual
agreement between him and the Army; the contract provides that he will
receive SLRP benefits in connection with his active duty service.

3.  Based on information that is available, the applicant believed his SMSC
loan met the criteria for payment under the SLRP; therefore, he made a
decision to enlist and serve as an enlisted Soldier.  Subsequently, it has
been determined this information was incorrect.

4.  As noted by the HRC, the contested loan, in the amount of $12,410.00,
is not insured under the Higher Education Act of 1965, because it does not
fall within this Act.  Therefore, there are no Army records that the Board
can correct that would allow payment of the applicant’s non-qualifying loan
under the SLRP.

5.  Notwithstanding the above, there is no evidence to indicate the
applicant was ever clearly told that his SMSC private loan was not payable
under the SLRP.  Therefore, the Board believes that equity requires the
Army to provide the applicant the SLRP benefits outlined in his enlistment
contract.

6.  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 officials 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 $12,410.00 his lending
institutions would have been paid under the LRP.

BOARD VOTE:

__mkp___  __lds___  __mjf___  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 be amended 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 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.”

That as a result of the foregoing correction the Defense Finance and
Accounting Service shall remit payment to the applicant the total amount of
his Sallie Mae Private Loan, in the amount of $12,410.00, 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.




                                        Margaret K. Patterson
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005985                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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