MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          19 October 2000
	DOCKET NUMBER:   AR2000039359

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Tracey L. Pinson		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:  In effect, that his student loans be paid based on his enlistment in the Army with the Loan Repayment Program (LRP) option.  

APPLICANT STATES:  In effect, that his recruiter advised him that his student loans would be paid off in three years.  He has since been told that his loan in the amount of $7,204.76 is not eligible for repayment under the provisions of the LRP.  He believes he may have reconsidered joining the military had he known that 40% of his total loan balance would not be subject to repayment under the LRP.  He submits a copy of a DD Form 2475 (DOD Educational LRP Annual Application), signed on 9 February 2000, by a counselor at the University of Southern California (USC) that verifies that his records show that he has an outstanding “UDSL Institutional Loan” totaling $7,204.76.  He also submits a copy of USAREC Form 1150 (Statement of Understanding-Army Policy USAREC Addendum to DD Form 1966 Series), DD Form 2366 (Montgomery GI Bill Act of 1984), and DA Form 3286-59 (Statement for Enlistment United States Army Enlistment Program U.S. Army Delayed Enlistment Program), in support of his request. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 25 March 1999, he enlisted in the Delayed Entry Program (DEP).  His DA Form 3286-66 (Statement of Understanding-United States Army Incentive Enlistment Program), shows that his enlistment options includes Option 9A (US Army Training Enlistment Program), Option 9C (Loan Repayment Program) and an annual $3,000 cash bonus for 3 years.  He also authenticated his DA Form 
3286-66 indicating that he understood the provisions of the LRP.

On 13 May 1999, he enlisted in the Regular Army (RA) for a period of 4 years.  He authenticated his DD Form 1966/3 (Record of Military Processing-Armed Forces of the United States) which shows that no changes to his enlistment contract were required upon enlistment. 

Even though the applicant enlisted for the LRP and claimed that he had eligible student loans, the available documents do not show that he submitted a promissory note/loan agreement for the “UDSL Institutional Loan” that is under review for evaluation to determine whether it met the eligibility criteria for payment under the LRP prior to entering on active duty. 

The DD Form 2475 that the applicant submitted for payment of his “UDSL Institutional Loan” is dated 9 February 2000.

He is currently serving in the rank of specialist, pay grade E-4, at Aberdeen Proving Grounds, Maryland.

In connection with his application, the Total Army Personnel Command (PERSCOM), opined (COPY ATTACHED), in essence, that previous correspondence to the applicant outlined the terms in his DA Form 3286-66, Section 4 which shows that he acknowledged that he understood under the provisions of the LRP, the Army would only repay loans that he incurred prior to enlistment in the Regular Army that were insured or guaranteed under Part B of the Higher Education Act of 1975 (Guaranteed Student Loan (GSL)) or any loan under Part E of the (National Direct Student Loan (NDSL)) after October 1975. 
In addition, Public Law 99-145, Section 671(a)(1) confirms that loans eligible for repayment must be made under Title IV, Part B, D, or E of the Higher Education Act. 

Further, the PERSCOM opined that his “USDL Institutional Loan” does not meet the requirements of Title IV, Part B, D, or E of the Higher Education Act of 1965. There are no exceptions to the law, therefore, payment cannot be made towards this loan.  As of the date of this opinion, he had received no payments on loans that qualify under the LRP; however his first year payments totaling 
$4,751.74 was submitted to Defense Finance and Accounting Services for check disbursement in May 2000.  

The above advisory opinion was referred to the applicant for comment or rebuttal and he responded stating that even though he initialed his DA Form 
3286-66, Section 4(a) his contract falls under the statute of fraud under “suretyship” agreements, “due to the absence of a description of the transaction involved being disclosed on the contract.”  He contends that his recruiter did not inform him that some of his educational loans would not be eligible for repayment.

Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the RA and the US Army Reserve.

Table 9-4 contains guidance on enlistment option program 9C (Bonus/Army College Fund/Loan Repayment Program).  It contains specific guidance pertaining to the LRP and indicates that the Government will repay a designated portion of any loan incurred that was made, insured, or guaranteed under Part B of the Higher Education Act of 1965 GSL or any loan under Part E of such act NDSL after 1 October 1975 and before enlistment into the RA.

Table 9-4 also provides program processing procedures that require Army Guidance Counselors to complete required entries on the DD Form 
1966 pertaining to an applicant’s eligibility for the LRP.  Part of the mandatory 
processing procedures includes a verification that the applicant has qualifying loans if enlisting for the LRP, and that the applicant be advised of any loan that is not eligible.  These conditions must be acknowledged by the applicant in the remark section of the DD Form 1966 series.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant enlisted for the LRP and at least one of his loans did not qualify for repayment.  He did not submit copies of his loan agreements for evaluation prior to enlisting, therefore, he risked the possibility that one or more of his loans would not be eligible for payment under the LRP.

3.  His DA Form 3286-66 clearly specifies those loans for repayment under the LRP must be made, insured or guaranteed under Part B of the Higher Education Act of 1975 GSL or under Part E of the NDSL prior to enlisting in the RA.  He acknowledged in writing that he understood these provisions.  He has provided no evidence to the contrary.  The Board must presume regularity in the processing of his enlistment contract.

4.  The applicant has failed to prove his recruiter misled him or misrepresented the facts.

5.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__ewl___  __cjp____  __tlp ____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records
INDEX

CASE ID	AR2000039359	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.1400	
2.		
3.		
4.		
5.		
6.