RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         13 April 2006
      DOCKET NUMBER:  AR20050016137


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. David K. Hassenritter         |     |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, he was promised repayment of his
student loans under the LRP regardless of the type of loan.  He states his
first loan was a student signature loan and his recruiter said it would be
paid.

3.  The applicant provides a self-authored statement, and his enlistment
contract (DD Form 4) and associated papers in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 4 November 2004, he
enlisted in the Regular Army for 4 years and 21 weeks.  A Statement for
Enlistment prepared during his enlistment processing confirms the option
and incentives he contracted for during his enlistment processing.  The
LRP, Option 9C, is one of the incentives authorized.  The applicable LRP
terms are listed in paragraph 3 of this form.

2.  The LRP provisions in the Statement of Enlistment 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 indicated that the applicant 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 enlisted in the Army

3.  The Statement of Enlistment further indicated 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 service representative signed this document on the date he
entered active duty,
4 November 2004.

4.  On 4 November 2004, the recruiting guidance counselor completed Section
V (Recertification) and Section VI (Remarks) of the Record of Military
Processing-Armed Forces of the United States (DD Forms 1966/3 and 1966/4).
These documents contained an entry confirming the applicant’s participation
in Option 9C (LRP), but there were no entries regarding the
eligibility/ineligibility of any of his student loans.

5.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Education Incentives Branch, Human Resources
Command (HRC).  This official confirms that the applicant had an eligible
loan of $17,888.00 and that appropriate payment had been authorized for
this loan. She further indicated that the applicant's signature loan from
Sallie Mae Corporation does not qualify for repayment under the LRP.  She
further indicated there are no exceptions to the law, and therefore,
payment cannot be authorized for his
non-qualifying loan.   She concluded that if the Board decided to grant
compensation, the total outstanding balance of the non-qualifying loan of
$6,078.31 should be paid directly to the applicant.

6.  On 14 November 2005, the applicant was provided a copy of the HRC
advisory opinion in order to have the opportunity to respond.  To date, he
has failed to reply.

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 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.

8.  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.

9.  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.

10.  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, and
the record clearly shows the responsible recruiting officials failed to
make reference to any loans ineligible for payment under the LRP, as
evidenced by the absence of an entry in the remarks section of the DD Form
1966.

3.  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.  In this
case, counselors failed to properly document the ineligibility of the
applicant's loan on the DD Forms 1966/3 and 1966/4 prepared on the day he
departed for active duty.
4.  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.

5.  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 $6,078.31 due for the Sallie Mae Servicing
Corporation signature loan.

BOARD VOTE:

___RTD _  __PHM  _  __DKH__  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 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.  Further, the Defense Finance and Accounting Service (DFAS) shall remit
payment in the amount of $6,078.31 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.




                                  _____Richard T. Dunbar _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016137                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/13                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |112.1200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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