RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20050011615


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 her college loan under
the Loan Repayment Program (LRP).

2.  The applicant states she submitted the paperwork through the proper
channels repeatedly to find out it is not covered under LRP.  She continues
that this bothers her especially since she asked her recruiter multiple
times to verify if her loans would be taken care of through the LRP.

3.  The applicant provides a letter, dated 14 February 2005, from the
Education Incentives at U.S. Army Human Resources Command; a copy of
Firstmark Services letter, dated 28 September 2004; a copy of SELF Loan
Application and Promissory Note, dated 1 October 2001; and a copy of DD
Form 2475 (DoD Educational Loan Repayment Program (LRP) Annual
Application), dated 30 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) under the
Delayed Entry Program on 22 August 2003.  She was discharged from the USAR
on 29 January 2004 and enlisted in the Regular Army for a period of four
years for options 9A (United States Army Training Enlistment Program) and
9C (United States Army Incentive Enlistment Program – US Army High Grad
Bonus, US Army Loan Repayment Program and US Army Cash Bonus) for training
in military occupational specialty (MOS) 98C (EW/SIGINT Analyst).

2.  The applicant's Statement for Enlistment United States Army Enlistment
Program, Section 1a, confirms the option and incentives the applicant
contracted for during her 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 she must disenroll from the GI Bill at the time she entered
active duty and if she failed to do this she would not be eligible for the
LRP.  It also indicated the applicant understood that the government will
repay a designated portion of any loan she 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 she enlisted in the Army.

4.  Further, Section 2 indicated that the applicant’s enlistment for the
LRP ensured her, provided she met and maintained the prescribed
prerequisites, that the portion or amount of her 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 she entered active
duty, 29 January 2004, and there is no indication in this section that any
question was raised in regard to her eligibility for the LRP.

5.  On 28 September 2004, the applicant was informed by Firstmark Services
that her Private Student loan did not fall under the Army’s repayment
terms.

6.  On 14 February 2005, the applicant was advised by letter from an
official of the Education Incentives Branch, U.S. Army Human Resources
Command, that her student loan in the total amount of $4,000.00 was a
Private Loan (Self Loan) which did not qualify for repayment under the LRP.
 This letter further stated that her loan, which was not made, insured or
guaranteed under Title IV, Part B, D, or E of the Higher Education Act of
1965.

7.  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.

8.  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.



9.  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.

10.  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 for Enlistment United States Army 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.

11.  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.  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 she pays off a student loan.  The Government
will only pay the lending institution.

12.  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.  The applicant contends that her college loan should be paid under the
LRP.

2.  It is noted that the applicant's student loan in the amount of
$4,000.00 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 her Private Loan, which is not insured or
guaranteed, as was the case with the applicant.  However, Section 2 of her
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
her 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 to her own.
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
her 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 her enlistment.

BOARD VOTE:

_CAK ___  __TSK__  _PHM___  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, 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 amount of
her Private Loan, in the amount of $4,000.00, to which she 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.




                                      __Ted S. Kanamine_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050011615                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051013                                |
|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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