PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:	1 July 1999
	DOCKET NUMBER:   AR1999026642

	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. Loren G. Harrell		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Stanley Kelley		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his application to correct his records to allow for the inclusion of all of his student loans under either the Student Loan Repayment Program or any other source of funds under the discretion of the Secretary of the Army.

3.  The applicant continues to aver that he was very specific in asking about the bar examination loan (BEL) and that he was assured on several occasions that it could be included under the loan repayment program as a part of his enlistment guarantee.

4.  The applicant submits both a statement from his recruiter and a tape of his conversation with his recruiter that indicate that the recruiter had specifically inquired about the BEL loan inclusion and that he had received a positive response before the applicant had agreed to enlist.

5.  The Memorandum of Consideration reflecting the Board’s 11 March 1999 review of the applicant’s request is incorporated herein by reference as if wholly set forth.

6.  The LRP is an educational enlistment incentive that provides for payment of 33 1/3 percent or $1,500.00 of the unpaid principal of eligible student loans for each year of active duty a soldier completes.

7.  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.

8.  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.”

CONCLUSIONS:

1.  The applicant has shown that he was advised that all of his loans would qualify for repayment under the Loan Repayment Program and it was only after he had been repeatedly assured that such repayment included all of his loans that he enlisted.

2.  While the applicant’s enlistment contract does not specifically indicate the BEL loan, it clearly shows that he was to be afforded a repayment in the amount in excess of his other $45,000 loan which clearly would include the BEL loan to reach the $50,000.00 amount indicated in his enlistment contract.

3.  The applicant relied on the information afforded him to his detriment and therefore, failure to correct this error creates an injustice. 

4.  The applicant’s military records should be corrected to show his DA Form 3286-66, US Army Incentive Enlistment Program, paragraph 4a, includes the sentence “If a student loan is accepted by the officials processing you for enlistment, or subsequent to enlistment by the Army Board for Correction of Military Records (ABCMR), as payable under the LRP and it is later discovered that it is not payable due to it not being made or insured under the Higher Education Act of 1965 (Guaranteed Student Loan) or due to the student loan(s) no longer being outstanding, the ABMCR may pay the loan(s), or any portion of the loan(s), at its sole discretion, in accordance with Title 10, U.S.C., Section 1552.”  This would allow the Board to invoke that provision and pay him the amount his lending institutions would have been paid under the LRP.

5.  To affect the proper payment to the applicant, it will be necessary to have the dollar amount the applicant would have been entitled to under the LRP calculated by the Total Army Personnel Command (PERSCOM), and then have that sum paid directly to the applicant by the DFAS under Title 10, U.S.C., Section 1552.

6.  In view of the foregoing findings and conclusions, the interest of justice would be served by correcting the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:
a.  showing that the DA Form 3286-66, US Army Incentive Enlistment Program, of the individual concerned, paragraph 4a, be altered to include the sentence “If a student loan is accepted by the officials processing you for enlistment, or subsequent to enlistment by the Army Board for Correction of Military Records (ABCMR), as payable under the LRP and it is later discovered that it is not payable due to it not being made or insured under the Higher Education Act of 1965 (Guaranteed Student Loan) or due to the student loan(s) no longer being outstanding, the ABMCR may pay the loan(s), or any portion of the loan(s), at its sole discretion, in accordance with Title 10, U.S.C., Section 1552”; and

b.  by showing that the ABCMR has invoked its prerogative under that altered LRP addendum to pay the individual concerned the principal and interest of his student loan(s) that would have been paid to him under the terms of the foregoing LRP addendum; under Title 10, U.S.C., section 1552.

BOARD VOTE:  

__JHL__   ___FKM_  ___SK___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   JoAnn H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR1999026642	
SUFFIX		
RECON	 	
DATE BOARDED	19990701 	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	  . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128	
2.		
3.		
4.		
5.		
6.