RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      15 August 2006
      DOCKET NUMBER:  AR20060006883


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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, that the SMSC (Sallie Mae Servicing
Corporation) loan disbursed on 10 September 2004 totaling $23,108.18 be
repaid by the Army's Student Loan Repayment Program (SLRP).

2.  The applicant states, in effect, that when he enlisted in the
service, his recruiter told him that all his college loans would be
repaid through the SLRP.  Based on this information, it helped him to
determine his enlistment contract.  The loan is clearly marked as a
college loan through a Government agency.  He has found this is not the
only lie he was told.

3.  In support of his request, the applicant submitted the letter from
the US Army Human Resources Command, Education Incentives Branch, dated
25 April 2006; a copy of a letter from the Office of the Registrar,
Western Kentucky University, Subject:  Enrollment Verification, dated 10
January 2005; a copy of the USAREC Form 1232, Loan Repayment Program
Inprocessing Counseling, dated 11 January 2005; a copy of a Tuition
Answer Loan Application – 2004-2005, submitted by the applicant to Sallie
Mae on 31 August 2004; a copy of his complete DD Form 4,
Enlistment/Reenlistment Document – Armed Forces of the United States,
dated 11 January 2005; a copy of the Statement for Enlistment, United
States Army Enlistment Program, U.S. Army Delayed Enlistment Program,
dated 11 January 2005; and a copy of the Statement for Enlistment, United
States Army Enlistment Program, dated 13 July 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Army Reserve, US Army
Delayed Entry/Enlistment Program, for 8 years, on 11 January 2005.

2.  On 13 July 2005, the applicant enlisted in the Regular Army for 5
years for, among other options, payment of his student loans under the
SLRP.  The applicant is currently serving on active duty in the rank and
pay grade, Private First Class, E-3.

3.  DD Form 1966/3, Record of Military Processing – Armed Forces of the
United States, on file in the applicant's Official Military Personnel
File (OMPF) shows, in item 30 (Data Verification by Recruiter), that the
applicant's recruiter saw the applicant's birth certificate and verified
the applicant's age and citizenship on 13 July 2005.  In addition, the
recruiter saw the applicant's Social Security Account Card and diploma.
There is no indication on this form that the recruiter saw other
documents.

4.  Item 32.a. (Specific Option/Program Enlisted For), of the DD Form
1966/3, on file in the applicant's OMPF, shows the applicant enlisted for
enlistment option 9C, the US Army Incentive Enlistment Program (Enlistment
Bonus, Army College Fund, Loan Repayment Program).

5.  DD Form 1966/4 is silent reference any information pertinent to the
SLRP and any review of promissory notes and determination as to the
qualification of the loans for repayment under the SLRP, and any counseling
that may have been given the applicant pertinent to any loans that did not
qualify.

6.  The Statement for Enlistment, United States Army Enlistment Program,
U.S. Army Delayed Enlistment Program, which was completed on 11 January
2005, shows the applicant enlisted for Programs 9A (US Army Training
Enlistment Program (UNCM) and Program 9C (US Army Incentive Enlistment
Program (US Army Loan Repayment Program, US Army Cash Bonus, 5 Yr
Enlistment).  The applicant acknowledged that his enlistment in the Regular
Army was scheduled for 13 July 2005.

7.  The Statement for Enlistment, United States Army Enlistment Program,
which was completed on 13 July 2005, shows the applicant enlisted for
Programs 9A (US Army Training Enlistment Program (UNCM) and Program 9C (US
Army Incentive Enlistment Program (US Army Loan Repayment Program, US Army
Cash Bonus, 5 Yr Enlistment).

8.  The applicant acknowledged that in connection with his enlistment in
the Regular Army he would receive $12,000.00 under the US Army Cash Bonus
Program.

9.  The applicant acknowledged that with his enlistment in the Regular Army
for the US Army SLRP he must disenroll from the GI Bill in order to qualify
for this program and that disenrollment must be at the time he enters
active duty.

10.  The applicant completed and signed a DD Form 2366, Montgomery GI Bill
Act of 1984 (MGIB), form to disenroll himself from participation in the
MGIB on 21 July 2005.

11.  Item 2.r. of the Statement for Enlistment, United States Army
Enlistment Program, which the applicant signed, on 13 July 2005, states, "I
understand that under the Army Student Loan Repayment Program, the Army
will not repay student loans in excess of $65,000 regardless of the amount
of my student loans.
I further understand that I am required to make all interest payments of my
student loans during my enlistment.  In addition, I understand that I must
bring copies of ALL my student loan promissory notes when I report to the
MEPS (Military Entrance Processing Station) for active duty ship date."

12.  On 11 January 2005, the applicant authenticated USAREC Form 1232, Loan
Repayment Program Inprocessing Counseling.  There are thirteen items on
this form which the applicant was counseled on during in-processing
procedures.  While each is important to the program, Item 13 states, "I
understand that I must bring copies of all my student loan promissory notes
when I report to the Military Entrance Processing Station for my active
duty ship date."

13.  On 3 August 2005, the applicant submitted DD Form 2475, DOD
Educational Loan Repayment Program (LRP) Annual Application, to the US Army
Human Resources Command, Education Incentives Branch, and seeking payment
of the loan that had been extended by SMSC, which at the time had an
outstanding balance of $23,108.18.

14.  The DD Form 2475 was submitted to the loan holder, SMSC, on 16
February 2006.  On 5 April, the completed DD Form 2475 was returned to the
Education Incentives Branch.

15.  On 25 April 2006, the Education Incentives Branch notified the
applicant that the loan disbursed on 10 September 2004 totaling $23,108.18
did not qualify for repayment under the SLRP.  He was advised that his loan
was a private loan which was not made, insured or guaranteed under Title
IV, Part B, D, or E of the Higher Education Act.  He was further advised
that if he thought he was not properly counseled or an error or injustice
had occurred, he could apply to this Board for consideration for relief.

16.  On 18 May 2006, a member of the staff inquired of the Education
Incentives Branch if the applicant had any other loans and, in effect, if
any were qualified for repayment under the Army's SLRP.  On 19 May, a staff
member at the Education Incentives Branch responded that the applicant had
three other qualified loans totaling $8,732.12.  Of this total, $1,444.04
had been approved for an annual payment in July 2006.

17.  AR 601-210, Chapter 6, MEPS Processing Phase, provides policy and
guidance for those functions that are administered at the MEPS by MEPCOM
(Military Entrance Processing Command) for personnel and guidance
counselors to
confirm that they accomplish all procedures in the enlistment process by
making the appropriate entries in the DD Form 1966 series and DA Form
3286-66.  Paragraph 6-5.g. states that the guidance counselor "counsels
applicants who failed to meet specific qualifications for options for
which they applied; advises them of other available options."  This
includes a statement regarding the applicant’s eligibility for the SLRP,
which is to include any factors that may disqualify them from receiving
SLRP benefits, and ensuring that the applicant’s acknowledgement of this
fact is also recorded in the remarks section of the appropriate form of
the DD Form 1966 series.

18.  The applicable subparagraphs of Table 9-4, line 7, AR 601-210, which
was then in effect, states that guidance counselors will "a.) complete the
required entries on the DD Form 1966; c.) if enlisting for the LRP,
disenroll the applicant or Soldier from the GI Bill; and d.) verify that
the applicant has qualifying loans if enlisting for the LRP.  Advise
applicant if any loan is not eligible and have the applicant acknowledge
same in the remarks section of the DD Form 1966-series (emphasis added)."

19.  United States Army Recruiting Command (USAREC) Regulation 621-1,
paragraph 4-4a., which supplements Army Regulation (AR) 601-210, states
that "Applicants are no longer authorized to ship without documents or
verification of eligible loans."

20.  The procedures, outlined in paragraphs 17 and 18 above, are also
contained in USAREC Regulation 601-96 (Guidance Counselor Procedures),
Appendix N, paragraph N-3d(3).

21.  Forms included in the DD Form 1966 series were reviewed for any
indication or remarks that any of the applicant's loans was not eligible
for repayment under the SLRP.  None was found.

22.  The SLRP is a Department of the Army enlistment option authorized by
Public Law 99-145.  This option is designed to increase Test Score
Category
I-IIIA accessions.  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.  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 repayment 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, 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 he pays off a student loan.  The
Government will only pay the lending institution.

23.  Title 10, US 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.”

24.  The evidence shows in this case, a DA Form 3286-66 was not completed.
All enlistment incentives offered and accepted by the applicant were
recorded on the DD Form 1966-Series or on the Statement for Enlistment,
United States Army Enlistment Program, which the applicant signed, on 13
July 2005.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was loaned $23,108.18, by SMSC on
10 September 2004.

2.  The applicant enlisted in the Regular Army for 5 years, on 13 July
2005, for among other options, payment of his student loans under the SLRP.

3.  The evidence shows the applicant was appropriately guided through the
signing or initialing of the required forms acknowledging the Army's and
his responsibilities with regard to his enlistment
options/incentives/obligations.

4.  The applicant completed and signed a DD Form 2366 to disenroll himself
from participation in the MGIB, as required by program rules for the
enlistment option/incentive he chose.
5.  The applicant authenticated USAREC Form 1232 that states, "I understand
that I must bring copies of all my student loan promissory notes when I
report to the Military Entrance Processing Station for my active duty ship
date."

6.  In his application to this Board, the applicant states that he was told
by his recruiter that all his student loans qualified for repayment under
the Army's SLRP.  On 19 May 2006, a staff member of the Board was advised
that the applicant had three other loans, Stafford Loans, which qualified
for repayment and for which an annual payment would be authorized on 6 July
2006.

7.  There is no evidence the applicant was told that any of his loans, and
in particular the loan extended by the SMSC, did not qualify for repayment
under the SLRP.

8.  There is no evidence that if any of the loans were identified as not
qualifying under the Army's SLRP that the guidance counselor took any
action to advise the applicant of other available options, as required by
AR 601-210.  The applicant's enlistment documents are not annotated to show
the results of any counseling that may have been given him with regard to
his SLRP enlistment incentive option and his ineligibility for repayment
for any non-qualifying loan.

9.  Review of the evidence and the promissory note that the applicant
apparently provided the guidance counselor shows the loan that was extended
by SMSC to the applicant was a private loan.  Under normal circumstances,
this type of loan is not a qualifying loan under the SLRP, since it does
not meet the criteria of the program and the law; however, this is not the
overriding factor in this case, given the equity considerations and the
resultant injustice to the applicant.

10.  AR 601-210 requires that the guidance counselor include a statement
regarding an applicant’s eligibility for the SLRP, which is to include any
factors that may disqualify him from receiving SLRP benefits, and ensure
that an applicant acknowledges this fact in the remarks section of the
appropriate form of the DD Form 1966-series.  A review of the DA Form 1966-
series failed to reveal any entries pertinent to this required counseling.

11.  USAREC Regulation 621-1, paragraphs 4-4a, and USAREC Regulation 601-
96, Appendix N, paragraph N-3d(3), state that applicants are not
authorized to ship without documents or verification of eligible loans.
It is plainly evident that the applicant was shipped to basic combat
training without this verification.
12.  The applicant submitted the required DD Form 2475 seeking payment of
the loan that had been extended through the SMSC.  SMSC completed its
portion of the DD Form 2475 on 5 April 2005.  The form was annotated to
show the original amount of the loan was $23,390.37 and the outstanding
balance was $23,108.18.  The DD Form 2475 was, in turn, submitted to the
Education Incentives Branch for payment.  The Education Incentives
Branch, in turn, notified the applicant that his loan did not qualify for
repayment under the SLRP.

13.  The evidence shows that the applicant entered into an erroneous
contract with the Army, through no fault of his own, based on the failure
of the guidance counselor to strictly follow established regulatory
guidelines and procedures in connection with his recruitment and enlistment
processing.  Given the failure by the guidance counselor to follow clearly
established policies and procedures, the Board concludes that it would be
appropriate to rectify the resultant injustice to the applicant at this
time.  The Board finds that it would be equitable and in the interest of
justice to provide the applicant the SLRP benefits committed to in his
enlistment contract at the time of his enlistment.

14.  Broad discretion is available to this Board under Title 10, US Code,
Section 1552, which includes the authority to amend the applicant’s DA Form
3286-66 to include the sentence, “If a student loan is accepted by the
officials processing you for enlistment as payable under the SLRP and the
government fails to verify that all student loans accepted actually are
eligible under the Higher Education Act of 1965, and such failure results
in nonpayment of the loan by the SLRP, the Army Board for Correction of
Military Records may pay the loan, at its sole discretion, in accordance
with Title 10, US Code, section 1552.”  This amendment of the DA Form 3286-
66 allows the Board to invoke that provision and pay the applicant or
lending institutions, on behalf of the applicant, the amount that would
have been paid towards satisfaction of outstanding student loan(s), if they
had been properly verified at the time of his enlistment.

15.  In this case, a DA Form 3286-66 was not completed.  All enlistment
incentives offered and accepted by the applicant were recorded on the DD
Form 1966-Series or on the Statement for Enlistment, United States Army
Enlistment Program, which the applicant signed, on 13 July 2005.
Annotations expressed in the paragraph above will be made to the DA Form
1966-Series and to the Statement for Enlistment, United States Army
Enlistment Program, as appropriate.

16.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

__SLP__  __RML___  __JGH__  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:

      a.  amending the DA Form 1966-Series and the Statement for Enlistment,
United States Army Enlistment Program, to include the statement,  “If a
student loan is accepted by the officials processing you for enlistment as
payable under the SLRP, and the government fails to verify that all student
loans accepted actually are eligible under the Higher Education Act of
1965, and such failure results in nonpayment of the loan by the SLRP, 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”; and


      b.  directing that in accordance with Title 10, US Code, section 1552,
the Defense Finance and Accounting Service make payment to the applicant,
for the total amount of loans not covered under the SLRP, that were listed
in his enlistment records, in the amount of $23,108.18, to which he is
entitled as a result of this correction and, advise him if he does not
serve the required active duty, a debt will be established.




                                  ____Shirley L. Powell______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060006883                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 222   |112.0000                                |
|2.  226                 |112.0400                                |
|3. 283                  |128.0000                                |
|4.  297                 |128.1400 (SLPR)                         |
|5.                      |                                        |
|6.                      |                                        |


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