RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 August 2007
      DOCKET NUMBER:  AR20070007191


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Flemings          |     |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 upon his enlistment, he was told
all of his student loans would be paid.  He states that upon discovering
his loans had not been paid, only then was he made aware that the LRP only
covers Federal loans and does not compensate for private loans.  He states
that at the time of enlistment he was not made aware of the LRP
restrictions and was specifically informed his loans would be paid in full
by his recruiter and by the guidance counselor at the Military Entrance
Processing Station (MEPS).

3.  The applicant provides the following documents in support of his
application: Human Resources Command (HRC) Letter, dated 8 May 2006; DD
Form 2475 (DOD Educational Loan Repayment Program Annual Application),
dated June 2006; Sallie Mae Signature Student Loan Applications and
Promissory Notes, dated 22 July 2003, 18 March 2003, and 18 June 2002;
Sallie Mae Account Summaries; DA Form 2366 (Montgomery GI Bill Act of
1984); Statement for Enlistment; Self-Authored Letter, dated 24 January
2007; and ABCMR Record of Proceedings (AR20060002700) pertaining to another
Soldier.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record includes a Statement For Enlistment, which was
prepared on the applicant during his enlistment processing.  This document
shows he enlisted for Option 03 (United States Army Training Enlistment
Option) with cash bonuses and LRP incentives.

2.  Paragraph 2 of the Statement For Enlistment contained the LRP
eligibility requirements.  It stated, 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 indicated he understood that the Government will 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 entered active duty.

3.  The LRP requirements in the Statement for Enlistment further stated
that his 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.
 They also stipulated that the Army would not repay student loans in excess
of $65,000 regardless of the amount of the student loans.  The applicant
and service representative signed this document on the date he entered
active duty, 25 March 2005.

4.  On 8 May 2006, the Chief, Education Incentives Branch, HRC, notified
the applicant that the $21,272.36 of Salle Mae Corporation student loans he
received on 5 August 2002, 18 April 2003 and 18 September 2003, did not
qualify for repayment under the LRP.  This official further pointed out
that, as indicated by him in his application, the loans in question were
private loans, which were not made, insured or guaranteed under Title IV
Part B, D, or E of the Higher Education Act.  The applicant was advised to
apply to this Board if he believed he had not been properly counseled or
that an error or injustice had occurred.

5.  In connection with the processing of this case, a member of the Board
staff contacted a staff member of the HRC Education Incentives Branch.
This official reviewed the applicant's file and determined that first and
second year payments totaling $5,111.28 had been authorized and paid toward
Stafford Loans to Sallie Mae Servicing Corporation for the applicant and
that a third payment totaling $2,555.65 would be authorized in March 2008.


6.  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.

7.  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.

8.  10 USC 2171 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.

9  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 loan was 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.  The Statement of Enlistment of the applicant’s enlistment contract
established a contractual agreement between the applicant and the Army.  In
addition, 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.

3.  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 its own
regulations during the applicant's enlistment processing, it is appropriate
to rectify the resultant injustice at this time.

4.  In doing so, the applicant's military records should be corrected to
show his 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 him the $21,272.36 due for unpaid Salle Mae Corporation
student loans.

BOARD VOTE:

__LDS __  __EIF  __  __RJF __  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 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  student loans are accepted by the official processing you for
enlistment as payable under the LRP and the government fails to verify that
the student loans accepted actually are eligible under the Higher Education
Act of 1965, and such failure results in nonpayment of the loans by the LRP
or the repayment or default of the loans, the Army Board for Correction of
Military Records may pay the loans, at its sole discretion, in accordance
with Title 10, U.S. Code,
section 1552."

2.  Further, the Defense Finance and Accounting Service (DFAS) shall remit
payment in the amount of $21,272.36 to the applicant as a result of this
correction at the appropriate time and manner.  If required, the applicant
will submit the appropriate evidence (promissory notes, etc.) to the
Defense Finance and Accounting Service.




                                  _____Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007191                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/07                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |112.1200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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