MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 December 2001
         DOCKET NUMBER: AR2001058910

         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:

Ms. Karol A. Kennedy		Chairperson
Mr. Ronald E. Blakely		Member
M . Thomas E. O'Shaughnessy		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 separation program designator (SPD) code be corrected to a code which would allow him to use his benefits under the Montgomery GI Bill (MGIB).

APPLICANT STATES: In effect, that his correct SPD code is JGH, and not MGH, which is currently reflected on his DD Form 214, Certificate of Release or Discharge From Active Duty. He did not reenlist because he wanted to change his military occupational specialty (MOS) from 19K (Armored Crewman) to a skill he could use as a civilian. The reenlistment sergeant informed him he could not leave MOS 19K, because it was a shortage MOS. During this same period his unit was within six months of total deactivation and he was within 6 months of his separation date. To go to a new unit with only six months to separation would have been an inconvenience to a new unit commander. His current unit commander offered anyone within six to eight months of separation the option for an early discharge as a convenience to the government. He was advised that ALL of his benefits to include his MGIB would remain intact if he accepted the early release. In April of 2001, he enrolled in school and submitted for MGIB benefits and was shocked to receive a denial. His educational benefits are being withheld due to the SPD error.

In support of his request, he submits a letter from the Department of Veterans Affairs (DVA). It informed him that his request for education benefits was denied because he did not complete his enlistment and he was not involuntarily separated for the convenience of the government or because of a qualifying reduction in force.

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

He enlisted in the Regular Army on 15 March 1993 for a period of 3 years, with entitlement to the MGIB, was awarded the MOS 19K, M1 Armor Crewman, and achieved pay grade E-4. He was honorably released from active duty for non-retention on active duty on 29 August 1995 under the authority of AR 635-200, paragraph 16-5b, and given the SPD code MGH. He had 2 years, 5 months and 15 days of total active service.

On 21 July 1995, a DA Form 4126-R (Bar To Reenlistment Certificate) was prepared. It reflects that the applicant was recommended for a bar to reenlistment due to three counselings for returned checks.







On 31 July 1995, the applicant completed a request for early separation. His commander recommended approval of his request for early separation from the military service under the provisions of Army Regulation 635-200, paragraph 16-5b, Locally Imposed Bar To Reenlistment. By his signature, the applicant acknowledged that he understood that if the request were approved, it would be for his own convenience. In addition, he further acknowledged that he could not reenlist at a later date and there would be a recoupment of unearned bonuses.

On 7 August 1995, a DA Form 669 (Army Continuing Education System Record Continuation Sheet) was prepared. It reflects that the applicant was counseled during out-processing and that he would have partial MGIB eligibility due to his early separation due to end of term of service drawdown.

On 11 August 1995, the bar to reenlistment was approved.

Army Regulation 635-5-1 dated 13 August 1993 provides, in pertinent part, that for those enlisted soldiers voluntarily released from active duty or transferred in accordance with AR 635-200, paragraph 16-5b, for non-retention on active duty, the SPD code is MGH.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by changes in service obligation. Paragraph 16-5 applies to personnel who were denied reenlistment and provides that soldiers who receive DA or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.

The MGIB, as outlined in Title 38, United States Code, chapter 30, section 1411b, provides for soldiers who entered the service after 30 June 1985 to contribute $1,200.00 to the program during their first 12 months of service. Participation in the program is automatic, unless the soldier voluntarily withdraws from the program at the time of processing into the Army at a reception station. Under normal situations, the $1,200.00 contribution is nonrefundable. The program is administered by the DVA after the soldier is separated from active duty.










Under DVA regulations, service members must serve at least 20 months of a service obligation of less than 3 years, or 30 months of a service obligation of 3 years or longer to be eligible for the MGIB. There are only four exceptions: 1) a discharge for a service-connected disability; 2) a hardship discharge; 3) a discharge for a pre-existing medical condition; or, 4) an involuntary separation due to reduction in force. In all cases, the soldier’s service must be considered fully honorable.

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. There is no evidence in the record nor did the applicant provide any evidence to support his statement that he was released due to his unit’s deactivation and was briefed that all of his benefits to include his MGIB benefit would remain intact. The applicant’s records reflect that he was separated because of an approved local bar to reenlistment – he had no option to reenlist. He was allowed to separate early for his own convenience. The records reflect that an education counselor did counsel the applicant that he would receive partial MGIB benefits. However, this counseling took place prior to the approved local bar to reenlistment. There is no evidence that the education advisor was informed of the applicant’s correct status. The applicant in his application failed to mention that he was barred from reenlistment.

2. A review of the applicable Army regulation reflect the applicant’s correct SPD code should be MGH, therefore no correction to his records is warranted.

3. Entitlement to MGIB benefits is wholly within the purview of the DVA and is not a basis upon which this Board grants relief.

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____ __kak___ _____reb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001058910
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	220011211
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.	110.02
2.
3.
4.
5.
6.