RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 OCTOBER 2006
      DOCKET NUMBER:  AR20060004937


      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. Rene' R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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, reimbursement for his student loans
that should have been paid under the Loan Repayment Program (LRP).

2.  The applicant states, at the time of his initial enlistment, his
contract indicated that he was eligible for the LRP for loans he incurred
prior to his enlistment.  He maintains that in the summer of 1993, while
assigned to Fort Stewart Georgia, he was involved in multiple field
problems and deployed to Somalia in October 1993. He states upon his return
from Somalia in February 1994, his loans had fallen into default status.
The applicant states he was informed by the education office, that since
his loans were in default, they could not be paid under the LRP.  The
applicant admits that he was unable to repay the loans due to his lower
enlisted rank and therefore, the loans were sent to a collection agency and
his credit was adversely affected.  He states he started payments on his
loans as soon as he was able to do so and completed payments in 2004.  The
applicant concludes that a review of his records is warranted to rectify
this situation.  He requests reimbursement in the amount of $13,653.00.

3.  The applicant provides his self-authored statement,
Enlistment/Reenlistment Documents, and Student Access Financial Aid Review.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 1 December 1992, he
enlisted in the Regular Army for 3 years in the pay grade of E-4.  A
Statement of Understanding United States Army Incentive Enlistment Program
prepared during his enlistment processing, confirms that the applicant
enlisted in the Regular Army for the LRP incentive option.

2.  The LRP provisions in the Statement of Understanding, paragraph 3a,
required, in pertinent part, that the applicant acknowledge and understand
that only certain loans qualify for the LRP.  Loans which qualify for this
program include those that were 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.

3.  He further understood that he was required to secure a military
deferment or maintain his account in good standing until such time as
repayment was started.  On 1 December 1992, the applicant signed his
Statement of Understanding verifying that he understood “all promises and
guarantees whatsoever concerning my enlistment.”

4.  The Financial Aid Review shows that the applicant had the following
loans:  Federal Family Education Loan (FFEL), $6,142.00; Stafford
Subsidized, $6,511.00; and National Direct Student Loan, $1,000.00.
However, the FFEL loan date was listed as 3 May 1996, which was after his
initial enlistment date of 1992.  The other loans were before December
1992.

5.  The applicant’s records show he was deployed to Somalia from 27 October
1993 to 7 February 1994.  Additionally, he was deployed to Kuwait from 1
March 1999 to 28 August 1999.

6.  On 11 April 2006, the Chief, Education Incentives Branch, Human
Resources Command, stated in an e-mail that she could not find any
documentation on the applicant, to include their memorandum denying his
request for loan repayment.

7.  In the processing of this case, the Board obtained an advisory opinion
from the Chief, Education Incentives Branch.  The Chief, Education
Incentives Branch, recommended disapproval of the applicant’s request.  The
Chief, Education Incentives Branch, said that there were no provisions or
guidance that would allow the Department of Army to reimburse an individual
for payments already made.  “Eligibility for the LRP does not exempt
Soldiers from their obligation to repay their loans.”  The Chief, Education
Incentives Branch, concluded that the borrower is responsible for securing
a deferment or forbearance on his or her loan.

8.  On 29 July 2006, the advisory opinion was forwarded to the applicant
for his acknowledgement and/or rebuttal.  The applicant is currently
deployed to Iraq in support of Operation Iraqi Freedom and therefore, he
replied by e-mail.  The information he provided is the same information as
contained in his self-authored statement.

9.  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 and the U. S.
Army Reserve.  Chapter 9 (Enlistment Programs/Options) states that these
programs/options are designed to merge valid Army requirements with
personal desires.

10.  Army Regulation 601-210, Table 9-4, contains guidance on enlistment
option program 9C (Bonus/Army College Fund/Loan Repayment Program).  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 the same in the remarks section of
the DD Form 1966 series.

11.  This same regulation states that the Soldier must disenroll from the
Montgomery GI Bill.  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.  Provided the Soldier meets and
maintains the prescribed prerequisites enlistment for the LRP ensures that
the portion or amount of loan that may be repaid is 33 1/3 percent or
$1,500.00, whichever is greater, for each year of active duty successfully
completed.

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.  It is apparent that some of the applicant’s student loans did meet the
criteria established by law and regulation to qualify for repayment by the
Army under the LRP.  The fact that the applicant did not secure a deferment
or forbearance on his loans and they went into default is not the
overriding factor in this case, given the equity considerations and the
resultant injustice.

2.  The applicant enlisted in the Army for the LRP and believed his student
loans would be repaid under the agreement included in his enlistment
contract.  However, due to multiple field exercises and deployments beyond
his control, his loans went into default and no longer qualified for
repayment under the LRP.

3.  The evidence confirms some of the applicant’s student loans qualified
for repayment under the LRP.  Whether the applicant was precluded from
fulfilling his requirements regarding the LRP because of being deployed, or
whether his loans fell into default because of insufficient military pay,
and even though he himself ultimately repaid the loans, does not discount
the fact that he enlisted with the expectation that his student loans would
be repaid.  While the applicant is not entitled to relief as a matter of
law, as a matter of equity and justice it would be appropriate to reimburse
the applicant the funds he expended, which the government had originally
committed to pay as an enticement for the applicant to enlist.  Further
supporting payment as a matter of equity is the fact that the applicant
continued to serve in the military long after his initial enlistment.  His
commitment to the country should serve as a basis for the government to
reaffirm its commitment to the Soldier by honoring his initial enlistment
contract, in spite of the fact that he did not fully meet his obligations
regarding the administrative processing of such loans.  The applicant has
more than fulfilled his obligation to the country and continues to do so.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___PM __  __DG___  __RV ___  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 partial 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 a
student loan is qualified for repayment under the LRP and the loan is
subsequently determined to be in default status that results in nonpayment
of the loan by the LRP, and the Soldier has repaid the loan, the Army Board
for Correction of Military Records may reimburse the Soldier, 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 the total amount of
his Stafford Subsidized and National Direct Student Loan, in the amount of
$7,511.00 to which he is entitled as a result of this correction. If
required, the applicant will submit the appropriate evidence (proof of his
previous loan payments, etc.) to the Defense Finance and Accounting
Service.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
reimbursement for all his student loans in the total amount of $13,653.00.





                                  _____Patrick McGann__________
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR20060004937                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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