MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 April 2002
	DOCKET NUMBER:   AR2002060264

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 he be honorably discharged for an unfulfilled enlistment agreement.

APPLICANT STATES:  In effect , that he enlisted under the Student Loan Repayment Program (SLRP) with the understanding that the Army would pay back his student loans.  However, before the first payment was made, the loans went into default and he was forced to pay the interest on the loans out of his own packet because the first payment was not made on time.  He also states that while in basic training, he turned in his paperwork to his drill sergeant and did not see them until graduation. He goes on to state that he lived up to his agreement and the Army did not, accordingly, he desires to be honorably discharged based on the Army’s failure to fulfill the conditions of his contract. 

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

He enlisted in Pittsburgh, Pennsylvania on 8 September 1999 for a period of 4 years, enlistment in the pay grade of E-4, training in infantry career management field 11, assignment to Fort Campbell, Kentucky, a cash enlistment bonus of $9,000 and participation in the Student Loan Repayment Program.

At the time of his enlistment, a Statement of Understanding (DA Form 3286-66) was prepared as an Annex D to his contract, in which he initialed.  The statement indicates that enlistment under the SLRP ensured that if he met and maintained the prescribed prerequisites, the amount of 33 1/3% of his loan or $1,500 (whichever was greater) would be paid on his loan for each successful year of service completed, commencing on his enlistment date.  It also states that he understood that it was his responsibility to secure a military deferment or maintain his account in good standing until such time as repayment was started and that repayment amounts were subject to State and Federal taxes each year payments were made.

On 6 November 2000, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 7, for unfulfilled enlistment commitment.  His request was forwarded to the Total Army Personnel Command (PERSCOM) Separation Branch for action.  In processing his request, the Separations Branch forwarded his request to the Education Incentives Branch for additional information.  The Education Incentives Branch opined that the applicant had been enrolled in the SLRP as an exception to policy and as soon as he was set up in the system, he was sent an application packet.  He entered active duty on 8 September 1999 and his eligibility for payment was not verified until 24 October 2000.  Upon verification of his eligibility, a Department of Defense (DOD) Educational Loan Repayment Program Annual Application (DD Form 2475) was sent to the applicant.  The DD Form 2475 was received from the financial institution on 24 November 2000 and the first years payment was authorized on the same day and submitted to the Defense Finance and Accounting Service (DFAS) to dispatch payment.  Provided the applicant remains on active duty, his third payment of $2,383.20 will be authorized in September 2002.  

The Separations Branch responded to the applicant’s request for discharge on 5 January 2001, advising him that his request was carefully reviewed and was disapproved.  It further advised him that if the loan holder did not receive payment within 90 days of authorization, it could contact the DFAS.

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 USAR.  Chapter 9 (Enlistment Programs/Options) indicates that these programs/options are designed to merge valid Army requirements with personal desires.  

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.  It also provides that the individual must ensure that a deferment is secured and maintains their account in good standing until such time as repayment is made.  The SLRP provides that payment is not authorized for an account that is in default status nor may payments be made to the individual concerned.  All payments will be made to the financial institutions that hold the authorized loans.

Army Regulation 635-200, chapter 7, provides the criteria for the separation of enlisted personnel for defective or unfulfilled enlistment agreements.  It provides, in pertinent part, that an unfulfilled enlistment commitment exists when the soldier received a written enlistment commitment from recruiting personnel for which the soldier was qualified, but which cannot be fulfilled by the Army and the soldier did not knowingly take part in the creation of the unfulfilled enlistment commitment.  Soldiers separated under this provision will receive an honorable discharge.

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.  Although the applicant asserts that he submitted the paperwork to his chain of command in a timely manner, there is no evidence in the available records to show that his paperwork was unduly delayed.

2.  The available information shows that once the paperwork was submitted by the applicant, it was processed in a timely manner.  While his first payment was not made on the anniversary of his enlistment, it was made within 2 months of his anniversary and only because of the delay in receiving verification of eligibility.  While the Board cannot determine why the delay in establishing eligibility occurred, the applicant acknowledged that it was his responsibility to keep his loan current until the first payment was made.  While he may not agree with the terms now, that is what he agreed to in his contract.  Although it is not the policy of the Army to delay such payments, in some cases they do occur.  However, such delays in processing do not constitute an unfulfilled contract.  

3.  The Army has paid the first two of three installments of his SLRP agreement (based on completion of 2 years of service) and the third payment is scheduled for payment in September 2002.  It appears that the Army has met all of the remaining terms of his contract and the Board finds no merit to his contentions.

4.  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.

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

___teo __  __ao____  __hof ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002060264	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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         1.144.9909	941/A9909/DEFCT ENL	
2.		
3.		
4.		
5.		
6.