RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       6 April 2006
      DOCKET NUMBER:  AR20060002700


      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:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 his student loans be repaid by
the Army's Student Loan Repayment Program (SLRP).

2.  The applicant states, in effect, that he enlisted for the SLRP;
however, when he in-processed at reception, he was told that his loans
did not qualify for repayment.  He seeks payment for the amount of his
student loans as agreed to in his contract.

3.  The applicant submitted, in support of his request, a copy of the DD
Form 2475, DoD Educational Loan Repayment Program (LRP) Annual
Application, dated 22 August 2003; a USAREC Form 1150-R-E, Statement of
Understanding – Army Policy, USAREC Addendum to DD Form 1966 Series,
dated 4 November 2002; a DD Form 2366, Montgomery GI Bill Act of 1984
(MGIB), dated 4 November 2002; a DA Form 3286-67, Statement of
Understanding (Army Policy), dated 4 November 2002; a USAREC Form 1232,
Loan Repayment Program Inprocessing Counseling, dated 4 November 2002; a
DA Form 3286-59, Statement for Enlistment, United States Army Enlistment
Program, U.S. Army Delayed Enlistment Program, dated 4 November 2002; a
WEBP, Signature Student Loan, Website Loan Application, dated 20 February
2001; and a letter from the US Army Human Resources Command, dated 2
December 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Army
Reserve, US Army Delayed Enlistment Program, for 8 years, on 4 November
2002.

2.  On 22 November 2002, the applicant enlisted in the Regular Army for
5 years for, among other options, payment of his student loans under the
LRP.  The applicant is currently serving on active duty in the rank and
pay grade, Sergeant, E-5.

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 6 March 2002.  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,
among other options/incentives, payment of his student loans under the
SLRP.

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

6.  During the applicant's processing on 4 November 2002, the applicant
initialed USAREC Form 1150-R-E, Statement of Understanding – Army Policy,
in Item 11, to show he was enlisting for 5 years for the LRP and for
training and assignment in the military occupational specialty (MOS) 95B,
Military Police.  The applicant also initialed in the box adjacent to the
statement, "I understand that under the Army's 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 the interest payments on my student loan during my
first year of 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 my active duty ship date."  The
USAREC Form 1150-R-E was signed by the applicant and countersigned by
the guidance counselor.

7.  The applicant completed and signed a DD Form 2366 to disenroll himself
from participation in the MGIB on 4 November 2002.

8.  DA Form 3286-59, Statement for Enlistment, United States Army
Enlistment Program, U.S. Army Delayed Enlistment Program, which was
completed on 4 November 2002, shows the applicant enlisted for Programs 9A
(US Army Training Enlistment Program (95B)) and Program 9C (US Army
Incentive Enlistment Program (LRP)).  The applicant acknowledged that his
enlistment in the Regular Army was scheduled for 21 November 2002.

9.  The applicant and guidance counselor authenticated DA Form 3286-59.
There is no indication on this form that any question was raised with
regard to his eligibility for the LRP based on his enlistment for the
options listed.  There is no indication that the applicant was advised that
any of his loans did not qualify for payment under the LRP.

10.  DA Form 3286-66, Statement of Understanding, United States Army
Incentive Enlistment Program, which was completed on 4 November 2002,
shows the applicant understood that to participate in the LRP, he was
required to disenroll from the MGIB; that under the program, the government
would repay a designated portion of any loan incurred that was made,
insured, or guaranteed under Part B of the Higher Education Act of 1975
(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; and that the amount of all student loans could not exceed
$65,000.  The applicant and the guidance counselor each authenticated the
reverse of DA Form 3286-66.

11.  The applicant and the guidance counselor each authenticated the
reverse of DA Form 3286-67, Statement of Understanding (Army Policy), on 4
November 2002.  The applicant initialed under the "Yes" column of Item 5,
DA Form 3286-67. "I have enlisted for the following Educational Incentive
Programs (Initial under the appropriate column for each program.)"

12.  On 4 November 2002, the applicant authenticated USAREC Form 1232, Loan
Repayment Program Inprocessing Counseling.  There are thirteen items on
this form that 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.  AR 601-210, Chapter 6, MEPS Processing Phase, provides policy and
guidance for those functions that are administered at MEPS by MEPCOM
(Military Entrance Processing Command) personnel and guidance counselors
to confirm that they accomplished 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 LRP, which is to
include any factors that may disqualify him from receiving the LRP benefit,
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.

14.  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)."

15.  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."

16.  The procedures, outlined in paragraphs 12 and 13 above, are also
contained in USAREC Regulation 601-96 (Guidance Counselor Procedures),
Appendix N, paragraph N-3d(3).

17.  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 LRP.  None was found.

18.  On 31 October 2003, the applicant submitted DD Form 2475 seeking
payment of his loan that had been extended by Sallie Mae Servicing
Corporation. The loan holder, Sallie Mae Servicing Corporation, completed
the DD Form 2475 on 6 November 2003.  The original amount of the loan was
$6000 and the outstanding balance was $6091.98.  Item 8 (Type of Loan),
Section III (Loan Status Confirmation), shows the loan was a "Private"
loan.  The DD Form 2475 was, in turn, submitted to the Education Incentives
and Counseling Branch for payment.

19.  On 2 December 2003, the Chief, Education Incentives and Counseling
Branch, Human Resources Command (HRC), notified the applicant his Sallie
Mae Servicing Corporation loan of $6,091.98 did not qualify for repayment
under the LRP.  The applicant was advised to apply to this Board if he
believed he was not properly counseled or that an error or injustice had
occurred.

20.  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.  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 he pays off a student
loan.  The Government will only pay the lending institution.

21.  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.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was extended two loans, each in the
amount of $3,000, for a total of $6,000, by Sallie Mae Servicing
Corporation.

2.  The applicant enlisted in the Regular Army for 5 years for, among other
options, payment of his student loan under the LRP, on 22 November 2002.

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 upon his
arrival at reception he was told his loans did not qualify for repayment
under the SLRP.

7.  When the applicant was told his loans did not qualify for repayment
under the SLRP, there is no evidence the guidance counselor took any action
to advise him of other available options, as required by AR 601-210.  The
applicant's enlistment documents are not appropriately 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 that.

8.  Review of the evidence and the promissory note that the applicant
apparently provided the guidance counselor shows the loans that were
extended to the applicant were private loans.  Under normal circumstances,
these types of loans are not qualifying loans under the SLRP, since they do
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.

9.  AR 601-210 requires that the guidance counselor include a statement
regarding an applicant’s eligibility for the LRP, which is to include any
factors that may disqualify him from receiving the LRP benefit, and
ensures 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.

10.  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 his verification.  He now has served in the Army
sufficiently long to have been promoted to the rank and pay grade of
sergeant,
E-5.

11.  The applicant submitted the required DD Form 2475 seeking payment of
the loans that had been extended through the Sallie Mae Servicing
Corporation.  Sallie Mae Servicing Corporation completed its portion of the
DD Form 2475 on 6 November 2003.  The form was annotated to show the
original amount of the loan was $6000 and the outstanding balance was
$6091.98.  The DD Form 2475 was, in turn, submitted to the Education
Incentives and Counseling Branch for payment.  The Education Incentives and
Counseling Branch, in turn, notified the applicant that his loan did not
qualify for repayment under the LRP.

12.  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 LRP benefits committed to in his
enlistment contract at the time of his enlistment.

13.  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 LRP 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 LRP, 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.

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

BOARD VOTE:

__PMS__  ___cd ___  __BK___  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 3286-66 to include the statement,  “If a
student loan is accepted by the officials processing you for enlistment as
payable under the LRP, 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 LRP, 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 Student Loan Repayment
Program, that were listed in his enlistment records, in the amount of
$6,091.98, to which he is entitled as a result of this correction.




                                  ______Paul M. Smith______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060002700                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060406                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  23   |103.0000                                |
|2.   1018               |103.0100                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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