RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050012665


      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. Yvonne Foskey                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |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 college loans under the
terms of the Loan Repayment Program (LRP).

2.  The applicant states, in effect, that when she first met with an Army
recruiter she thoroughly discussed the LRP, together with her parents and
her recruiter they reviewed her loans, promissory notes, along with the
Army reference material.  After being repeatedly assured that her loans
qualified for repayment, she enlisted into the Army under the condition
that she would receive repayment of all her student loans.

3.  The applicant provides the following documents in support of his
application:  Statement of Understanding (DA Form 2823); United States Army
Human Resources Command (HRC) Letter, dated 29 November 2004; and Statement
of Enlistment (DA Form 3286-59).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 23 April 2003, she
enlisted in the Regular Army for 4 years.  A Statement for Enlistment,
dated 14 January 2003, was prepared during her enlistment processing.  This
document confirms that one of her enlistment option incentives was the LRP
(Option 9C).

2.  The record also includes a Statement of Understanding United States
Army Inventive Program (Annex D).  In this document, the applicant
acknowledged her understanding that 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 that the applicant understood
that the government will repay a designated portion of any loans 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 she
enlisted in the Army.

3.  Annex D further indicated that the applicant’s enlistment for the LRP
ensured that provided she met and maintained the prescribed prerequisites,
the portion or amount of her student loans that could be repaid was 33 1/3
percent or $1,500, whichever was greater of the unpaid principal balance
for each year of service completed, up to an amount of $65,000.00.  The
applicant and service representative signed this document on the date she
entered active duty.  There is no indication that any question was raised
in regard to the eligibility of her loans for repayment at the time this
document was completed during the enlistment process.
4.  On 23 April 2003, the recruiting guidance counselor completed Section V
(Recertification) and Section VI (Remarks) of the Record of Military
Processing-Armed Forces of the United States (DD Forms 1966/3 and 1966/4).
These documents contained an entry confirming the applicant’s participation
in the LRP, but there were no entries regarding the
eligibility/ineligibility of any of his student loans.

5.  On 3 May 2005, the United States Army Recruiting Command (USAREC)
Chief, Enlistment Standards Division confirmed in an electronic mail (e-
mail) message that a report of investigation had been completed in regard
to the applicant’s LRP enlistment.  It confirms the applicant's guidance
counselor committed an error in failing to counsel the applicant concerning
her loans prior to the applicant shipping for active duty.

6.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Education Incentives and Counseling Branch, Human
Resources Command (HRC).  This official confirms the applicant was notified
that her student loans from Key Education Resources (Private Educational
Loan) and Robinson and Associates (Tuition Loan) totaling $44,288.73
(maximum $65,000.00) did not qualify for repayment under the LRP.  This
opinion further indicates that the applicant does have a qualifying student
loan in the amount of $24,403.61 that is being paid under the provisions of
the LRP.  Finally, this HRC official indicates that if the Board grants
relief, payment should be made directly to the applicant in the amount of
$40,596.39, which is the amount remaining of the $65,000 maximum authorized
under the LRP that will not be paid by HRC.

7.  On 4 October 2005, the applicant was provided a copy of the HRC
advisory opinion in order to have the opportunity to provide a rebuttal.
To date, she has failed to respond.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program) prescribes eligibility criteria governing the enlistment of
persons, with or without prior service (PS), 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 MOS and 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.

9.  Table 9-4 of the enlistment regulation, in effect at the time of the
applicant’s enlistment, contained guidance on enlistment option program 9C
(Bonus/Army College Fund/Loan Repayment Program).  It contained specific
guidance pertaining to the LRP and indicated that 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 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.  It
further stipulated that Guidance Counselors were required to confirm they
accomplished all the processing procedures by making the appropriate
entries in the DD Form 1966.  This included a statement regarding the
applicant’s eligibility for the LRP, which included any factors that could
disqualify him from receiving the LRP benefit, and ensuring the applicant’s
acknowledgement of this fact was also recorded in the remarks section of
the DD Form 1966.

10.  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.

11.  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 clear the applicant’s student loan did not meet the criteria
established by law and regulation to qualify for repayment by the Army
under the LRP.  The loans were 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.  Annex D of the applicant’s enlistment contract established a
contractual agreement between the applicant and the Army, and the record
clearly shows the responsible recruiting officials failed to make reference
to any loans ineligible for payment under the LRP, as evidenced by the
absence of an entry in the remarks section of the DD Form 1966 and the
information contained in the 3 May 2005 USAREC e-mail confirming guidance
counselor error.

3.  The governing regulation requires Army Guidance Counselors to 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, the regulation
in effect at the time of the applicant’s enlistment required counselors to
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 loans on the DD Forms 1966/3 and 1966/4, prepared on the
day he departed for active duty.

4.  In view of the facts of this case, it appears 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 their own
regulations during the applicant's enlistment processing, it is appropriate
to rectify the resultant injustice at this time.  In doing so, the
applicant's military records should be corrected to show her Statement of
Enlistment 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."  This would allow the Board to invoke that provision
and pay her the $40,596.39 due for the Key Education Resources and Robinson
and Association Loans.
BOARD VOTE:

___JNS _  __PHM__  ___LJO__  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
Amending the applicant's Statement of Enlistment 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."

2.  That as a result of the forgoing correction the Defense Finance and
Accounting Service (DFAS) shall remit payment to the applicant the total
amount of his Key Education Resources and Robinson and Association Loans,
in the amount of $40,596.39, 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.




                                  _____John N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012665                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-23                              |
|TYPE OF DISCHARGE       |Active Duty                             |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |N/A . . . . .                           |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |112.1200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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