MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 July 2003      
	DOCKET NUMBER:   AR2002082348

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Eric N. Andersen		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 student loans be repaid.

APPLICANT STATES:  That the student loan was part of his original enlistment contract.  It was later retracted due to the loan being in default.  He had already taken his first swearing in and felt that he had no choice but to continue with his enlistment even though the loan was not going to be paid.

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

He was born on 5 December 1961.  He graduated from the University of      Texas El Paso in December 1995.  He entered the Delayed Entry Program on  11 December 1996.  

A DA Form 3286-59 (Statement for Enlistment United States Army Enlistment Program U. S. Army Delayed Enlistment Program) provided by the applicant shows that he enlisted for the U. S. Army Airborne Training Enlistment Program and the U. S. Army Loan Repayment Program (LRP) Incentive Enlistment Program.

The DA Form 3286-59 on file in the applicant's Official Military Personnel File (OMPF) shows that the entry for the LRP was deleted and marked "void."

The applicant did not have a DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program) on file in his OMPF and he did not provide a copy of a DA Form 3286-66.  This form would have indicated that the applicant acknowledged that under the LRP the government would 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 or any loan under Part E of such act after 1 October 1975 and before he enlisted into the Regular Army.  

The applicant's DD Form 1966/3 (Record of Military Processing -- Armed Forces of the United States) indicated that he enlisted as an unverified student loan applicant and did not have a student loan that was not in default so the loan repayment was eliminated from his contract.

The applicant enlisted in the Regular Army on 17 January 1997 for 4 years in pay grade E-4.

On 16 January 2001, the applicant was honorably released from active duty, in pay grade E-5, upon completing his required active service.

The Loan Repayment Program is a Department of the Army enlistment option authorized by Public Law 99-145.  This option is designed to increase Test Score Category I-IIIA accessions.  Loans that qualify for repayment are Guaranteed Student Loan/Stafford Loans, National Direct Student Loan/Perkins Loans, William D. Ford Loans, Supplemental Loans for Students, Federally Insured Student Loans (FISL), Parent Loan for Undergraduate Students (PLUS), Auxiliary Loan Assistance for Students (ALAS), and consolidated loans which fall under Title IV, Part B or E of the Higher Education Act of 1965, or William D. Ford Loan.  Before entering active duty, the loan must not be in default.  The borrower is responsible for obtaining a deferment/forbearance with the loan holder and the loan must remain in good standing throughout the repayment process.  Active Army LRP participants earn their first loan repayment after completion of a full year of active duty and for each full year thereafter, up to       3 years.  Payment of 33 1/3 percent or $1,500, whichever is greater, is authorized annually to the loan holder on the total remaining original outstanding principal balance.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Regular Army.  Chapter 7, section IV discusses defective or unfulfilled enlistment or reenlistment agreements.  It states that an enlisted soldier will be discharged when a defective enlistment or reenlistment agreement exists under three circumstances.  One circumstance is when a material misrepresentation is made by recruiting or retention personnel on which the soldier reasonably relied and thereby was induced to enlist or reenlist with a commitment for which the soldier was not qualified.  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.

In the processing of this case, an advisory opinion was obtained from the U. S. Army Reserve Personnel Command, which in turn obtained information from the U. S. Total Army Personnel Command (PERSCOM), Education Incentives and Counseling Branch.  PERSCOM noted that before the Army can make any loan repayments, the soldier must provide a copy of his DA Form 3286-66 and DD Form 2366 (Montgomery GI Bill (MGIB) Act of 1984).  A memorandum requesting these document was initially sent to the applicant on 9 June 1997.  When no response was received, additional requests for information/documents were sent about every 6 months.  The applicant never responded. 

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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, 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 acknowledges that his student loan was in default prior to entering active duty.  One of the eligibility requirements for repayment of student loans under the LRP is that the loans not be in default prior to entry on active duty.

3.  The applicant could have requested discharge for a defective enlistment agreement.  The Board believes that a reasonably prudent person would have inquired at the time he or she learned the student loans were not eligible for repayment about voiding the enlistment contract.  The applicant was a 26-year old college graduate and there is no evidence to show he made such an inquiry.  

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

__fne___  __mvt___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR20020822348	
SUFFIX		
RECON		
DATE BOARDED	20030715	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	112.12	
2.		
3.		
4.		
5.		
6.