MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 March 1999                   
	DOCKET NUMBER:   AC98-08041

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his records be corrected to include repayment of bar examination loan under the Student Loan Repayment Program (LRP).  He also requests that he be reimbursed for the interest paid on both his student consolidation loan and his student bar examination loan, approximately $5,000.00 at the time he filed his application.  Lastly, he asks that special action be taken by the Secretary to grant the aforementioned relief, if relief is not available under the provisions of 10 U.S.C. 1552, the statue creating the Board.

APPLICANT STATES:  That he enlisted in the Army in order to qualify for the LRP.  At the time of his enlistment he was promised by his guidance counselor, a master sergeant, that all of his current student loan (two- a consolidated student loan in the amount of $45,000 and a bar examination (BEL) in the amount of $5,000.00) would be paid if he completed 3 full years of enlisted service.  He says he was also told he would qualify for a public service deferment, which meant he would not have to make any payment on his loans and no interest would accrue during the repayment period.  However, he has been denied a public service deferment on both loans.  The reason his lender gave for denying his deferment on the consolidated loan was that the law had changed.  For the BEL, the reason given was that it was private loan.

He states that a BEL is a student loan to pay for a bar examination course, the material for the course and the bar examination test, itself, as well as admission into, in his case, the Idaho State Bar.  He contends he specifically asked the guidance counselor about the BEL, who assured him after making a telephone call to “the person in charge of the LRP” that his BEL was covered.  To satisfy himself of this and to avoid confusion, he insisted upon having this promise written into his contract.  He states he does not want out of the Army.  He wants his loans paid.

In support of his application he submits a copy of an addendum to his enlistment contract (DD Form 1966/3) which contains in the remarks section the following statement:  “Applicant has approx 50, 000 of qualifying loans for the loan repayment program.”

EVIDENCE OF RECORD:  The applicant's microfiche records received in this office for the processing of his application contain none of his enlistment documents.  The information/data upon which this review is made was gleaned from documents submitted by the applicant, which show:

The applicant, who obtained a law degree from the University of Idaho in 1993 and was working as county prosecutor, enlisted in the Army in pay grade E-4 on 
8 April 1997 for 3 years under the station of choice and the LRP enlistment options.  At the time he submitted his application he was assigned to Fort Lewis, Washington, working in military occupational specialty 71D (Legal Specialist).

Upon enlistment the applicant signed DA form 3286-66 (Statement Of Understanding United States Army Incentive Enlistment Program) indicating his understanding that under the LRP, 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 of (165 (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, not to exceed $65,000.00 at the rate of 331/3 percent or $1,500.00, whichever is greater, of the unpaid principal balance for each year of service completed. 

During the enlistment process the recruiter certified on the applicant’s DD Form 1966/1, Section 11, Block 21, Box 51 that the loans were eligible for the LRP.  Additionally, notations were made on the applicant’s DA Form 3286 series confirming that the applicant had approximately $50,000.00 in eligible loans.

On 18 February 1998 the Chief, Education Incentives, Total Army Personnel Command (PERSCOM) informed the applicant in response to his application for repayment of his BEL that the BEL did not qualify for repayment under the LRP because it was not made, insured, or guaranteed under Title IV, Part B or E of the Higher Education Act of 1965.

During the processing of this case the Chief, Education Incentives, PERSCOM, recommended (COPY ATTACHED) disapproval of the applicant’s request, stating that there are no exceptions to the law requiring student loans to be insured or guaranteed under Part B of the Higher Education Act of 1965 or a loan made under Part E of such action after 1 October 1975 and before an individual enlists.  In addition, Public Law 99-145, section 217(a)(1) (A) and (B) confirm that loans eligible for repayment must be made under the Title IV, Part B or E of the Higher Education Act of 1965. 

The advisory opinion notes that payment of $45,998.14 will be paid by the Department on the applicant’s student loans that qualify under the LRP over a period of 3 years.  A member of the staff of the Board was advised telephonically by an official at the Education Incentives office that the law changed in 1993, ending the Public Service Deferment provisions which would have allowed the applicant to defer payments on the principal of his qualifying loans.

PERSCOM opined that under the terms outlined in the applicant’s enlistment contract Statement of understanding, US Army Incentive Enlistment Program, DA Form 3286-66, section 4, item a, that the applicant acknowledged that he understood that under the LRP the government will repay a designated portion of any loan incurred that was made, insured or guaranteed under the 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 before he enlisted in the Army.

The applicant was forwarded a copy of the advisory opinion from the Chief, Education Incentives, PERSCOM, for comments.  The applicant responded, essentially reiterating and elaborating upon his original contentions particularly those concerning the BEL.

Title 10, U.S. Code, section 2171, limits loans that are eligible for repayment under the LRP to those made, insured, or guaranteed under the Higher Education Act of 1965.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The law is clear.  The only loans eligible under the LRP are loans that are made, insured, or guaranteed under the Higher Education Act of1965.

2.  The applicant acknowledged before enlisting in the Army that he understood that only those loans made or insured under the Higher Education Act of 1965 would be eligible for repayment.

3.  The Department has informed the applicant that his BEL does not qualify under the law for payment under the LRP.  To recommend that this loan be paid under the LRP would be in direct contravention of law.

4.  Under the authority of 10 U.S.C. 1552, the Board has the authority to grant relief based upon equitable grounds.  The Board must determine whether the applicant detrimentally relied on the information provided to him during the recruiting process, and whether his reliance on this information warrants relief.

5.  While the applicant contends that he was told his BEL was a qualifying loan and insisted that it be so stated in his contact, the Board notes that the annotation made on the addendum to his enlistment contract in the remarks section states that he had “approximately $50,000.00 of qualifying loans for the loan repayment program.”  It does not specifically mention his BEL.  The applicant will receive payment of $45,998.14 on loans that qualify under the LRP over a period of 3 years.
6.  Apparently, the applicant’s request for deferment of payment on his qualifying consolidated loan was denied because the loan was made/consolidated after 
1 July 1993.

7.  The applicant enlisted and opted for the incentives of the LRP.  The applicant will receive repayment of $45,998.14 in student loans.  While the applicant contends that he was misinformed as to the eligibility of repayment for the BEL, the non-payment of approximately $5,000.00 does not constitute an error or an injustice.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  __CLG______  GRANT

________  ________  ________  GRANT FORMAL HEARING

___CLA_____  ___VBC_____  ________  DENY APPLICATION

						Loren G. Harrell
						Director