RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060016557


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Larry Racster                 |     |Member               |
|     |Mr. Rodney Barber                 |     |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 he be provided Loan Repayment
Program (LRP) benefits under the terms of his enlistment contract.

2.  The applicant states that he was promised and guaranteed repeatedly by
his recruiter that if he enlisted in the Army, his $48,000 Wells Fargo
student loan would be fully paid for by the United States Army.  He states
his recruiter will freely acknowledge that he made these guarantees as the
loans were specifically discussed on several occasions and he provided his
recruiter with original copies of the student loan statements and
documentation.  He states his father accompanied him on 14 October 2005 to
meet the recruiter to ensure that everyone was absolutely clear on the
repayment of his loans, and that he also took copies of all his student
loan notes to the Military Entrance Processing Station (MEPS).

3.  The applicant provides in support of his application, a Wells Fargo
Education Financial Services Statement dated 31 October 2006; a Wells Fargo
Education Connection Loan Program Consolidation Loan Application and
Promissory Note; and two Repayment Schedules and Truth-In-Lending
Disclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the United
States Army Reserve (USAR) on 4 September 2003 under the Delayed Entry
Program for a period of 8 years.  He enlisted in the Regular Army (RA) on
17 August 2005 for a period of 4 years, under the LRP option, and training
as an unmanned aerial vehicle operator.

2.  His Statement for Enlistment, United States Army Enlistment Program
confirms his enlistment options and included incentives.  The LRP is one of
the incentives authorized in paragraph 2 (Associated Options), and the
applicable LRP terms are listed in paragraph 2b through 2s.

3.  The LRP provisions of paragraph 2 state, 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.  It also indicates 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, made before he enlisted in the Regular Army.

4.  Further, paragraph 2f 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.  The applicant and
the service representative signed this document on the date he entered
active duty, 17 August 2005, and there is no indication on this document
that any question was raised in regard to his eligibility for the LRP or
the eligibility of his loans to qualify for repayment.

5.  The available evidence indicates that the applicant received student
loans from Wells Fargo on 23 September 2003, 19 July 2004, 6 October 2004,
and 13 December 2004 in the amounts of $20,000.00, $5,000.00, $15,849.00,
and $4,151.00.  On 20 December 2005, he consolidated these loans with Well
Fargo under a single promissory note totaling $48,962.62.

6.  On 26 June 2006, the applicant was advised by the Chief, Education
Incentives Branch, United States Army Human Resources Command, Alexandria,
VA, that, at the time of his enlistment, individuals enlisting with LRP as
a part of their enlistment contract must meet certain eligibility criteria
and that part of the eligibility criteria is to have loans that qualify
under the LRP which are Stafford, Perkins, Parent Loans for Undergraduate
Students, Supplemental loans, or any loan made insured or guaranteed under
the Higher Education Active, Title IV, Part B, D, or E.  He was informed
that loans eligible for repayment must be made, insured, or guaranteed
prior to entry on active duty, and that payment toward loans that do not
qualify under the LRP would be in violation of the law governing this
program.

7.  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.

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

9.  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.

10.  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.

11.  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 and the Statement for
Enlistment, United States Army Enlistment Program.  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.

12.  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), 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.  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.

13.  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 loans do 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.  A careful review of the evidence of record reveals that the applicant’s
Statement for Enlistment clearly established a contractual agreement,
between the applicant and the Army, that he would receive LRP benefits in
connection with his active duty enlistment.

3.  Although it is clear that the Statement for Enlistment 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 paragraph 2 of the Statement for
Enlistment 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 loans 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.

7.  Thus, 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
his 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 loans.

BOARD VOTE:

__MP ___  __LR   __  ___RB __  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 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 in the total
amount of the Wells Fargo Educational Financial Services Loan, in the
amount of $48,962.62, to which he is entitled as a result of this
correction.  If required, the applicant will submit the appropriate
evidence (promissory notes, etc.) to the DFAS and advise him if he does not
serve the required active duty, a debt will be established.




                                  ____Margaret Patterson______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016557                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070315                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  293  |128.1000/REMISSION/CANCEL DEBT          |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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