RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050009243


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |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, payment of his college loan under
the U.S. Army Loan Repayment Program (LRP).

2.  The applicant states at the time of his enlistment into the U.S. Army
he had a student loan in the amount of $10,000.00.  He entered the delayed
entry program and brought all of his pertinent paperwork concerning his
student loan with him to MEPS.  He was told all of his loan paperwork had
been misplaced, he returned the next day with his loan paperwork which was
reviewed.  He states he knew certain loans were eligible for the repayment
program.  He adds he again inquired about his loan and was reassured that
it qualified.  Therefore, based on those facts, he accepted the LRP as
required and declined enrollment from the Montgomery GI Bill.  He states he
believes he was mislead about the enlistment incentives and requests his
loan be repaid.

3.  The applicant provides a self-authored letter, dated 25 May 2005; a
letter, dated 9 March 2005, from the Education Incentives Branch at U.S.
Army Human Resources Command; a Memorandum, undated from the Education
Incentives Branch at U.S. Army Human Resources Command; a copy of DD Form
2475 (DoD Educational Loan Repayment Program (LRP) Annual Application),
dated 31 January 2005 for the amount of $10,695.19; a copy of Signature
Student Loan Promissory Note Document; a copy of a letter from the American
Education Services advising the applicant of his student loan  disbursement
dates, dated 29 August 2002; a copy of payment schedule, dated 13 July
2005, from the American Education Service and Loan Instruction Application,
undated from Bank One's Education One; a copy of the letter requesting an
Advisory Opinion, dated 10 August 2005, from the Case Management Division;
a copy of the letter responding to the Advisory Opinion, dated 26 August
2005, from the U.S. Army Human Resources Command and a letter of response
for the staff advisory opinion to the applicant, dated 22 September 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) under the
Delayed Entry Program on 13 August 2003.  He was discharged from the USAR
on 3 March 2004 and enlisted in the Regular Army for a period of five years
under options 9A (United States Army Training Enlistment Program) and 9C
(United States Army Incentive Enlistment Program – US Army High Grad Bonus,
(60+Semester Hours), U.S. Army Loan Repayment Program and U.S. Army Cash
Bonus, 5 year enlistment).

2.  The applicant's Statement for Enlistment United States Army Enlistment
Program, section 1a, confirms the option and incentives the applicant
contracted for during his enlistment processing.  The LRP is one of the
incentives authorized in this section and the applicable LRP terms were
listed in section 2 (Associated Options).

3.  The LRP provisions state, in pertinent part, that the applicant
understood 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 the applicant understood that the government will repay a
designated portion of any loan he incurred that was made, insured or
guaranteed under Part B of the Higher Education Act (Guaranteed Student
Loan) or any loan under Part E of such act (National Direct Student Loan)
after 1 October 1975 and before he enlisted in the Army up to $65,000.00.

4.  Further, section 2 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 loan that could be
repaid was 33 1/3 percent or $1,500, whichever was greater of the unpaid
principal balance of each year of service completed.  The applicant and the
service representative signed this document on the date he entered active
duty, 2 March 2004, and there is no indication in this section that any
question was raised in regard to his eligibility for the LRP.

5.  On 9 March 2005, the applicant was advised by an official of the
Education Incentives Branch, U.S. Army Human Resources Command that his
ALPLN Private Student Loan totaling $10,000.00, did not qualify for
repayment under the LRP.  Also, it indicated that his loan, was not made,
insured or guaranteed under Title IV, Part B, D, or E of the Higher
Education Act of 1965.  The applicant was advised to apply to this Board if
he believed he was not properly counseled or that an error or injustice had
occurred.

6.  The applicant's states in his letter, dated 25 May 2005, he is
currently stationed at Fort Bragg, North, Carolina.  He further states
prior to entering the military he was told the military repays student
loans.  He adds, he entered the delayed entry program and provided the
pertinent paperwork concerning his student loan, as instructed.  He states
he reported to the Military Entrance Processing Station (MEPS) at the time
prescribed to sign his contract, but was told his loan paperwork was
misplaced.  He continues that, he returned the next day with his loan
paperwork which was reviewed.  He states he inquired about his loan and was
reassured that his loan qualified.  The applicant further states based on
these facts he signed away his eligibility to the Montgomery G.I. Bill.  He
adds he strongly believed he was misled about his enlistment incentive and
request his loan be repaid.

7.  In the processing of this case, an advisory opinion was obtained from
the U.S. Army Human Resources Command.  The opinion recommends that the
Board disapprove the applicant's request, based on information obtained
from American Education Services (AES) about his ALPLN Private Loan.

8.  The opinion pointed out that based on previous correspondence dated
9 March 2005, the applicant was provided the terms outlined in the
enlistment contract, Statement of Understanding US Army Incentive
Enlistment Program, DA Form 3286-66, Section 4, item a, Part B or any loan
under Part E and before enlisting into the Regular Army.  Also provided was
correspondence on Title 10, Section 2171, which confirmed loans eligible
for repayment must be made under Title IV, Part B, D, or E of the Higher
Education Act of 1965.  The opinion further recommended that if the Board
decides to grant compensation toward the ALPLN Private Loan, that the
computation of any payment be based on the information obtained from AES
(DD Form 2475) and that amount be sent directly to the Soldier.

9.  The opinion was referred to the applicant for comment or rebuttal, but
he did not respond.

10.  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 (RA) and the
USAR.  Chapter 6, section II contains guidance on the Guidance Counselor
Processing Phase.  It states, in pertinent part, that Guidance Counselors
will use the supporting automated systems and updated regulatory material
applicable to available options to counsel all applicants on their
enlistment options.  It further states that Guidance Counselors will
counsel applicants who fail to meet specific qualifications for options for
which they applied and advise them of other available options.

11.  Chapter 9 (Enlistment Programs/Options) of Army Regulation 601-210
indicates that these programs/options are designed to merge valid Army
requirements with personal desires.  Table 9-4 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 Regular Army.

12.  Table 9-4 of Army Regulation 601-210 also provides program processing
procedures that require Army Guidance Counselors to accomplish specific
counseling and administrative actions in connection with processing members
enlisting with the LRP incentive.  These actions include ensuring members
are disenrolled from the GI Bill; verifying that members have qualifying
loans; and advising members of any loan that is not eligible.

13.  Army Regulation 601-210 further states that Guidance Counselors are
specifically required to confirm they accomplished all the processing
procedures by making the appropriate entries in the DD Form 1966 and
Statement of Understanding United States Army Enlistment Program U.S. Army
Delayed Enlistment Program. This includes a statement regarding the
applicant’s eligibility for the LRP, which includes any factors that may
disqualify them from receiving the LRP benefit, and ensuring that the
applicant’s acknowledgement of this fact is 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 (10 USC 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 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.

15.  It 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 he pays off a
student loan.  The Government will only pay the lending institution.




16.  Title 10, U.S. Code, section 1552, the law which governs the Army
Board for Correction of Military Records, 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 applicant contends that his American Education Service student loan
totaling $10,000.00 should be paid under the LRP.

2.  It is noted that the applicant's student loan did not meet the LRP
criteria established by law and regulation.  However, this is not the
overriding fact in this case given the equity considerations and the
resultant injustice.

3.  It is clear that the governing law and regulation did not authorize LRP
benefits in connection to his Private Loan, which is not insured or
guaranteed, as was the case with the applicant.  However, Section 2 of his
enlistment contract clearly established a contractual agreement between the
applicant and the Army, which established that the applicant would receive
LRP benefits.

4.  In addition, the governing regulation requires 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 the applicant 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.

5.  The evidence of record confirms that a Recruiter authorized the
applicant's enlistment contract with the LRP benefit incentive.  Further,
the record gives no indication that the responsible Army Guidance Counselor
ever verified the applicant's eligibility for LRP benefits during the
applicant's initial contracting process or prior to the applicant departing
for active duty.  In fact, the record shows that the applicant was
authorized to ship for active duty by the responsible Army Guidance
Counselor with an enlistment contract, Section 2, in force that authorized
his LRP benefits.

6.  In view of the facts of this case, it is found 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 the
applicant.  Given the failure on the part of the government officials to
follow its own regulations during the applicant's enlistment processing, it
is concluded that it would be appropriate to rectify the resultant
injustice and equity to provide the applicant the LRP benefits the Army
committed to in his enlistment contract at this time.

7.  In doing so, the applicant's military records may be corrected to show
his Statement for Enlistment United States Army Enlistment Program was
amended to include the sentence "If LRP benefits are authorized by the
official processing you for enlistment and the government fails to verify
the applicant's eligibility for receipt of these benefits prior to shipment
for active duty, the Army Board for Correction of Military Records may pay
the loan(s), at its sole discretion, in accordance with Title 10, U.S.
Code, section 1552."  This would allow the Army Board for Correction of
Military Records (ABCMR) to invoke that provision and pay the applicant the
amount that would have been paid for the student loan(s) verified at the
time of his enlistment.

BOARD VOTE:

_JNS____  __PHM__  __LJO__  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 LRP benefits are
authorized by the official processing you for enlistment and the government
fails to verify the applicant's eligibility for these benefits under the
provisions of Title 10 of the United States Code, section 2171, and such
failure results in nonpayment of the loan(s) authorized for repayment under
the LRP terms of the enlistment contract or the repayment or default of the
loan(s), the Army Board for Correction of Military Records may pay the
loan(s), at its sole discretion, in accordance with Title 10, U.S. Code,
section 1552."

2.  That, as a result of the foregoing correction, the Defense Finance and
Accounting Service shall remit payment to the applicant for the total
amount of his ALPLN Private Loan, in the amount of $10,000.00, 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.






            __John N. Slone_____
                    CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20050009243                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.  222  |112.0000/enl contract                   |
|2.  1026                |112.1200/LRP                            |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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