MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           7 December 2000
	DOCKET NUMBER:   AR200041184

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		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:  That his records be corrected to show that he enlisted for military occupational specialty (MOS) 91K and the loan repayment program (LRP).

APPLICANT STATES: That approximately one week before his shipping date he was advised that he did not qualify for the 91K MOS because he had failed the color vision test.  He retook the test and on 15 July 1998 his contract was amended placing him in MOS 73C (the applicant doesn’t state, but the Board presumed he failed that test).  Prior to his departure for active duty the recruiter informed him that once on active duty he could request a MOS waiver.  On 8 December 1999 he retook and passed the color vision test and now asks that his original enlistment contract be reinstated.

EVIDENCE OF RECORD:  The applicant's military records were not available.  The documents herein were provided by the applicant.

His enlistment documents show that he enlisted into the Regular Army on 22 May 1998 for a period or 6 years.  He enlisted for two options, the US Army Training of Choice Enlistment (MOS 91K, Medical Laboratory Specialist) and the LRP. 

A report of medical examination indicates that on 28 April 1998 the applicant failed the color and night vision test. 

The applicant’s contract was amended to enlist him for MOS 73C (Finance Specialist) for a period of 4 years.

A medical record extract shows that on 8 December 1999 the applicant passed the color vision test.

On 13 December 1999 a doctor provided the applicant a memorandum that states that on 8 December 1999 he examined the applicant and found him to have normal color vision and acknowledged that the results were contrary to the results of the physical taken on 28 April 1998.

In the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff for Personnel.  It concluded that when the applicant was offered and selected for MOS 73C, he should have been allowed to retain the LRP option, despite the fact that 73C was not an LRP qualifying MOS.  The advisory opinion was provided to the applicant with no response as of this date.

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

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.  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 his recruiter misled him.

2.  While it is unfortunate that the applicant twice failed the color vision test he was made aware prior to entry on active duty that he was not eligible for MOS 91K or the LRP.  The applicant, once informed, chose another MOS and a shorter enlistment period.

3.  The fact that the applicant passed the color vision test some months after his initial enlistment does provide evidence that the two earlier tests were improperly done.  Thus at the time of the applicant’s enlistment he was properly presented the facts as known at that time, resulting in the renegotiation of his contract.  Notwithstanding the ODCSPER advisory opinion, this Board must conclude that the amended enlistment contract was correctly prepared and presented to the applicant.  The Board does not see where an injustice was done to the applicant. When the applicant was informed that his original enlistment contract offer could not be met, he had the option of not entering active duty or renegotiating his contract.  The applicant chose to renegotiate his contract.

4.  The applicant offers that he was told that once he was on active duty he could request a MOS waiver.  The applicant has provided no evidence that would corroborate this claim.

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

__rvo         __ ewl         __jpi____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041184	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001207	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.