MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           02 AUGUST 2001                   
	DOCKET NUMBER:   AR2001055343

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner 		Chairperson	
	Ms. Barbara J. Ellis		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, secured from AFSA Data Corporation, be paid under the terms of the Loan Repayment Program (LRP).

APPLICANT STATES:  In effect, that his recruiter told him that all of his student loans would be repaid as part of his LRP enlistment incentive.  He states that the recruiter was given copies of all of his student loans and assured him that the loans would be repaid.  The applicant maintains, in effect, that his recruiter did not inform him that only student loans which were made under the Higher Education Act of 1965 were payable under the LRP.  He notes that repayment of the loans was “certified” in block 33 and 32 of his enlistment contract.  In support of his request he submits copies of his enlistment documents and copies of documents associated with his education loan from AFSA Data Corporation.

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

He enlisted on 13 April 1999.  At the time of his enlistment the applicant completed several enlistment forms indicating that a cash enlistment bonus in the amount of $4,000.00 and the Student Loan Repayment Program were part of his enlistment incentives.  

Block 33 (certification of recruiter or acceptor) and block 34 (recertification by applicant and correction of data at the time of active duty entry) on the applicant’s DD Form 1966/3 (Enlistment Contract) essentially certified that the recruiter believed “to the best of [his] judgement” that the applicant “fulfills all legal policy requirements for enlistment” and that the information contained in his enlistment contract was still correct at the time he entered active duty.  The entries do not list or confirm eligibility of any specific student loans which would be paid under his LRP enlistment incentive.

As part of the applicant’s enlistment processing he initialed a DA Form 3286-66 (Statement of Understanding United States Army Incentive Enlistment Program) indicating that he understood “that under this program (LRP) that the government will repay a designated portion of any loan I incurred that was made, insured or guaranteed, under Part B of the Higher Education Action of 1965 (Guaranteed Student Loan) or any loan under Part E of such act (National Direct Student Loan) after 1 October 1975 and before I enlist into the Regular Army.”  

In the winter of 2000, while serving on active duty, the applicant submitted a DD Form 2475 (DOD Education Loan Repayment Program Annual Application) requesting payment of his student loan from AFSA Data Corporation in Utica, New York.  He indicated on the form that the original amount of the loan was $4,500.00.

On 23 February 2001 the Total Army Personnel Command (PERSCOM) responded to the applicant stating that since his loan was not insured under the Higher Education Act of 1965 it was not, by law, payable under the LRP.

The LRP is an educational enlistment incentive which provides for payment of a percentage 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.

In the processing of this case an advisory opinion was provided by officials from the PERSCOM.  Those officials recommended the applicant’s petition be denied and reemphasized that the applicant had acknowledged in his enlistment documents that he understood that under the LRP “that the government will repay a designated portion of any loan [he] incurred that was made, insured or guaranteed under Part B of the Higher Education Act of 1965….”  They noted that “based on documentation provided the loan does not qualify for repayment under the LRP” and that it was a private loan.

When given an opportunity to respond to the advisory opinion, the applicant indicated that he was aware that the loan did not qualify for repayment but was asking, in effect, for an exception based on the fact that he was “certified to have met all service regulations governing such enlistment….”  As in his initial application, he noted that copies of his loans were attached to his enlistment documents and contends that he was “lied to and told [his] loans would qualify for LRP.”

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.  While the applicant contends that he was misled by his recruiter he has provided no evidence from any disinterested source, such as his recruiter, an official from the recruiting office, or evidence that the loan in question was provided to the recruiter at the time of enlistment, which could be used to independently substantiate his request.  His contention that blocks 33 and 34 support his entitlement to have the AFSA Data Corporation Loan repaid is without foundation.  Those blocks merely certified that he met the legal requirements for enlistment.  They do not, as the applicant states, “certify” that his AFSA Data Corporation Loan would be repaid under the LRP.

2.  While it is unfortunate that the applicant may not have understood that not all of his student loans were payable under the LRP, the Board does not have the authority to violate public law.  To pay the applicant’s loans, in the absences of any error or injustice, would be in direct contravention of title 10, U.S. Code, section 2171.

3.  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 that requirement.

4.  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

__RJW__  __BJE___  __JPI ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001055343	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010802	
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.	128.00	
2.		
3.		
4.		
5.		
6.