MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 July 2000
	DOCKET NUMBER:   AR2000041037

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 loan be paid based on his enlistment in the Army with the Loan Repayment Program (LRP) option.  

APPLICANT STATES:  In effect, that he joined the Army under the LRP in order to pay his student loan from Florida State University and he is still waiting to receive any payments.  He is currently paying the student loan himself and he requests immediate help with this payment.  He indicates that before he signed his enlistment contract, he asked his recruiter repeatedly if his loan qualified for payment.  The applicant claims that the recruiter knew it wasn’t but said otherwise.  He indicates that the recruiter knew he was lying to him and did it anyway.  He states his understanding that the Army does not honor verbal agreements but he can’t just sit around and let people like this recruiter give the Army a bad name.  In support of his application, he submits a copy of his loan agreement from his birth country of Panama, dated 23 November 1999.

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

The applicant is currently serving, in the rank of specialist/E-4, at the United States Army Medical Department Activity (MEDDAC) at Fort Stewart, Georgia.  

The applicant enlisted in the Regular Army (RA) for a period of 6 years on 
29 August 1995.  His enlistment options included Option 9C (United States Army Incentive Program (Loan Repayment).  

On 11 May 1995, the date he enlisted in the Delayed Entry Program (DEP), he signed a Memorandum for Record (MOR), in which he attested to his understanding that, under the provisions of the LRP, the Army would only repay loans he incurred prior to his enlistment in the Regular Army; and that these loans had to have been made, insured or guaranteed under Part B of the Higher Education Act of 1975 (Guaranteed Student Loan) or Part E (National Direct Student Loan) after 1 October 1975.  He also acknowledged, that he understood that “State” loans, which provide loans not under Parts B and E of Title IV of the Higher Education Act of 1965 are not eligible for repayment under the LRP.  

On 29 August 1995, the day the applicant entered the RA and departed for active duty, a statement was entered in Section VI (Remarks) of the Department of his Defense (DD) Form 1966/3 (Record of Military Processing-Armed Forces of the United States) by the Army Guidance Counselor.  This statement indicated that the applicant was claiming he had an eligible student loan; however, his eligibility for the LRP could not be established since he had not provided a copy of the loan promissory note for evaluation prior to his departing for active duty.  The applicant authenticated this statement with his signature on the date he enlisted in the RA and departed for active duty.

On 4 April 2000, the applicant received a letter from the Chief of the Education Branch at the Army Personnel Command (PERSCOM) advising him that his loan did not qualify for the LRP and explaining the basis for his ineligibility for reimbursement under the provisions of the LRP.  It stated, in effect, that individuals enlisting for the LRP as part of their enlistment contract must meet certain eligibility criteria.  Part of this criteria is to have loans that qualify under the LRP.  These eligible loans include Stafford, Perkins, Parent loans for Undergraduate Students, Supplemental loans, or any loan made, insured, or guaranteed under the Higher Education Act of 1965, Title IV, Part B, D, or E.  Payment toward loans that do not qualify under the LRP is in violation of the law governing this program and there are no exceptions to the law.  

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 U.S. Army Reserve (USAR).  

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 (Guaranteed Student Loan) or any loan under part E of such act (National Direct Student Loan) after 1 October 1975 and before enlistment into the Regular Army.

The Table 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 these mandatory processing procedures include a verification that the applicant has qualifying loans if enlisting for the LRP, and that the applicant be advised if any loan is not eligible, these conditions must be acknowledged by the applicant in the remarks 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.  As evidenced by the applicant’s own comments and the explanation letter from PERSCOM, the ineligibility of the applicant’s loan is clear and not in question.  The issue in this case is clearly whether or not the applicant was misled to believe his loan qualified for repayment under the provisions of the LRP by recruiting personnel.  After carefully evaluating the evidence or record and the independent evidence submitted by the applicant, the Board finds no evidence that would corroborate the applicant’s claim that he was lied to by his recruiter.

2.  The evidence of record contains enlistment contract processing documents prepared at both the applicant’s enlistment in the DEP, and on the date he entered the Regular Army, that verify that he was briefed on the criteria necessary for a student loan to qualify for repayment under the provisions of the LRP.  

3.  The Board finds that the MOR signed by the applicant on the date he enlisted in the DEP, and by the LRP comments added to the remarks portion of the 
DD Form 1966 on the date he enlisted in the RA, which he authenticated with his signature, provide more than sufficient evidence that he was made aware of the restrictions of the LRP prior to his enlistment.  Therefore, the Board finds that relief is not warranted in this case.

4.  Inasmuch as the applicant did not provide a copy of his loan agreement either before or during his enlistment processing for recruiting personnel to determine his eligibility, the applicant had to assume the risk associated with the possibility that his loan may not qualify under the LRP.  Accordingly, given the circumstances in this case, the Board does not find that he was misled by recruiting personnel.  

5.  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.

6.  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

__cmf___  ___ew___  __jpi____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041037	
SUFFIX		
RECON		
DATE BOARDED	2000/07/06	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1018	103.0100	
2.		
3.		
4.		
5.		
6.