RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            01 JUNE 2006
      DOCKET NUMBER:   AR20060006043


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. David Haasenritter            |     |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 full allotted payment of his student loans
through the Student Loan Repayment Program (SLRP) benefits as provided
under the terms of his enlistment contract.

2.  The applicant states, in effect, that he enlisted under the SLRP for
payment of his student loans and was processed through his recruiter and
the Military Entrance Processing Station with his student loan promissory
note.  However, when he submitted his application for payment, he was
informed that his loan did qualify for payment.  He continues by stating
that he was negotiating with the Air Force for a commission as an officer
when he found out about the SLRP and opted to enlist for the SLRP rather
than accept a commission.  He goes on to state that he processed through
the system and was never informed that his loan did not qualify for payment
under the SLRP.  Additionally, he waived his right to the Montgomery G.I.
Bill.  He further states that he is scheduled for deployment to Iraq in
June and desires the issue to be resolved before he deploys.

3.  The applicant provides a letter of explanation, his SLRP annual
application, the response from the Education Incentives Branch, and his
SLRP inprocessing counseling form with his application.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the United States Army Reserve (USAR) under the Delayed
Entry Program (DEP) on 19 March 2005, for a period of 8 years.  On 7 April
2005, he enlisted in the Regular Army in the pay grade of E-4 for a period
of 5 years, training as a counter-intelligence agent, entry into the SLRP
and a cash enlistment bonus of $17,000.

2.  The Statement for Enlistment – United States Army Enlistment Program
contained in his official records is used to record contractual obligations
to enlistees, guarantees and annexes enlistment contracts.  The SLRP is one
of the incentives authorized on that form and the terms of that incentive
are listed in paragraph 4.  It provides, 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.  He disenrolled from the Montgomery GI Bill on 11 April 2005.
It also indicated that the applicant understood that the government would
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 Regular Army.
3.  The applicant also signed a Loan Repayment Program Inprocessing
Counseling (USAREC Form 1232) which indicates 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 for each year of service completed not to
exceed $65,000.00.  The applicant and the service representative signed
this document on the date he enlisted, 19 March 2005, which indicated one
promissory note from the “5 Star Bank” in the amount of $64,095.75 and
there is no indication in this form that any question was raised in regard
to his eligibility for the LRP or the eligibility of his loans to qualify
for repayment.

4.  On 10 March 2006, the applicant was advised by the Chief, Education
Incentives and Counseling Branch, Human Resources Command (HRC-ALEX), that
they were in receipt of the applicant’s promissory note and that they had
determined that his original loan was disbursed in the amount of $61,098.09
and that his loan did not qualify for repayment under the LRP.

5.  The applicant was further advised by HRC-ALEX that in order to be
eligible for repayment of student loans, soldiers who have the LRP in their
enlistment contract must meet certain standards and their loans must have
been made, insured, or guaranteed under the Higher Education Act of 1965,
Parts B, D, or E.

6.  In addition, the applicant was informed that payment of loans that do
not qualify would be in violation of the law governing the LRP and that
there are no exceptions to the law.  He was finally advised to apply to
this Board if he believed he was improperly counseled or that an error or
injustice had occurred.

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 (PS), into the Regular Army (RA) and
the USAR.  Chapter 9 (Enlistment Programs/Options) indicates that these
programs/options are designed to merge valid Army requirements with
personal desires.

8.  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 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.  The regulation further states that Guidance Counselors are
specifically required to confirm they accomplished all the processing
procedures by making the appropriate entries on a Record of Military
Processing – Armed Forces of the United States (DD Form 1966) and DA Form
3286-66.  This includes a statement advising members of any loan he or she
has that is not eligible for repayment and ensuring the applicant’s
acknowledgement of this fact is also recorded in the remarks section of the
DD Form 1966.  Paragraph 4-4 of United States Army Recruiting Command
(USAREC) Regulation 621-1 which supplements Army Regulation 601-210 states
that applicants are no longer required/authorized to ship without documents
or verification of eligible loans.

11.  The Loan Repayment Program 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), Auxillary 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.  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
LRP 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 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 governs the operation
of 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 Board concedes that the applicant’s loan does not meet the criteria
established by law; however, it finds this is not the overriding factor in
this case given the equity considerations and the resultant injustice.

2.  Careful consideration has been given to the staff advisory opinion
obtained from the HRC; however a careful review of the evidence of record
reveals that the applicant’s enlistment contract clearly established a
contractual agreement, between the applicant and the Army, that he would
receive loan repayment program (LRP) benefits in connection with his active
duty enlistment.

3.  Although it is clear that page 2 of his contract specified the types of
loans for which LRP benefits were authorized, there is absolutely no
indication that the applicant was ever advised of these specific provisions
of the LRP or of the specific criteria required for a loan to qualify for
repayment under the law governing the LRP.

4.  By regulation, Army Guidance Counselors are required to verify that a
member enlisting for the LRP has qualifying loans and to advise those
members if any loan is not eligible for repayment.  Further, these service
representatives must confirm these actions were accomplished by making the
appropriate entries in the enlistment contract or associated documents.

5.  Notwithstanding the fact that his contract outlined the legal criteria
for repayment under the LRP, the applicant’s enlistment contract and
associated documents contain no entries verifying that he was ever properly
counseled in regard to the legal loan repayment restrictions.

6.  Further, the record gives no indication that an Army Guidance Counselor
ever verified that the applicant’s loan did or did not qualify for
repayment under the LRP.  In addition, there is no suggestion that this
verification was ever made a part of the record with the required entries
being made in the enlistment contract prior to the applicant entering
active duty.  This was in direct violation of USAREC Regulation 621-1,
which indicates the Army guidance counselor did not verify whether all
loans qualified for repayment.

7.  Thus, contrary to the advisory opinion from the HRC, the Board finds
that the applicant was improperly counseled in regard to LRP benefits and
it concludes that it would be appropriate to rectify this injustice at this
time.  Therefore, in the interest of justice and equity, the Board
concludes that it would be appropriate to provide the applicant the LRP
benefits outlined in his enlistment contract.

8.  In doing so, the applicant’s military records may be corrected to show
on page 8 of his contract (Statement for 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 him the amount his lending
institution would have been paid for his loan obtained on 31 January 2005.

BOARD VOTE:

___WP__  ___TR___  ___DH __  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 the applicant’s Statement For Enlistment United States Army Enlistment
Program, be amended on page 8, 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 above correction the Defense Finance and
Accounting Service (DFAS) shall remit payment to the applicant of the total
amount of the loans obtained from 5 Star Bank on 31 January 2005, in the
amount of $61,098.09, to which he is entitled as a result of this
correction. The applicant will submit the appropriate evidence (promissory
notes, etc.) to the DFAS to determine the amount due, if required.





                                  ______William Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006043                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060601                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |297/slrp                                |
|1.128.1400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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