MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002077598

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Maria J. Troup		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)

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APPLICANT REQUESTS: That her records be corrected to show that her educational contributions were deposited in a Montgomery G.I. Bill (MGIB) account instead of a Veterans Educational Assistance Program (VEAP) account.  She also requests that she be allowed to deposit the balance of the $2,700.00 contribution required to establish eligibility in the MGIB.

APPLICANT STATES: In December 2000, she initiated a payroll deduction of $100.00 a month to establish eligibility in the MGIB. In June 2002, she attempted to put the balance of the $2,700.00, the amount required to establish MGIB eligibility, into her account only to discover that she had been making contributions to the VEAP, not the MGIB. She contends that the fact that she attempted to pay the balance of the $2,700.00 18 months after she initiated her payroll deduction proves she thought she was contributing to the MGIB. The MGIB has an 18 month contribution provision; the VEAP does not.

In support of her request the applicant submits a leave and earnings statement showing that she had a $100.00 a month allotment taken from her pay; a letter from her fiancée; a letter from a master sergeant; a letter from a retired first sergeant; and a request for a fellowship/teaching assistantship/work study award from a college.

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

She enlisted in the Regular Army on 22 March 1982 under the Army Civilian Acquired Skills Program. She served continuously through reenlistments and was promoted to master sergeant.

In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM). The PERSCOM stated that Public Law 106-419, dated 1 November 2000, provided an opportunity to soldiers who enlisted when the VEAP was in effect and who had opened a VEAP account during that time to convert to the MGIB. The PERSCOM continues that implementation instructions were sent to the Army Education Centers on 2 February 2001, and the law allowing for the MGIB conversion ended on 31 October 2001. The PERSCOM recommends disapproval of the applicant’s request because the implementation instructions for the VEAP/MGIB conversion were not yet fielded when the applicant started her education allotment.

The applicant was furnished a copy of this advisory opinion and submitted a rebuttal. In that rebuttal she states that a memorandum prompted her to start an MGIB account, and submits a notification of a document titled “VEAP to MGIB Bill Conversion Open Season.” In that document it was stated that to be eligible for the conversion, a soldier had to be a VEAP participant on 9 October 1996. The applicant contends that she was given bad advice and should not be penalized for actions she took in good faith.
The VEAP was established and implemented on 1 January 1977, as a contributory education program designed to replace the Vietnam era (pre-1977) GI bill. Any soldier entering the service between 1 January 1977 and 30 June 1985 was eligible to participate in the program. The soldier was required to contribute between $50.00 and $75.00 (later increased to $100.00) for a minimum of 12 months during his or her period of service. The Army matched $2.00 for each $1.00 contributed by the soldier. The maximum educational assistance that could be received by the soldier was $8,100.00 for a 3-year enlistment, $7,200.00 for a 2-year enlistment. Service must have been under honorable conditions. The benefits aspects of the program are operated by the Department of Veterans Affairs (DVA) after the soldier is released from active duty. The soldier’s participation in the program was evidenced by a “yes” or “no” entry on the DD Form 214, in item 15.

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 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.

Public Law 106-419, Veterans Benefits and Health Care Improvement Act of 2000, was enacted on November 1, 2000. The law provided an opportunity for service members who were VEAP participants on October 9, 1996, to convert to the MGIB not later than October 31, 2001. Participants were defined as service members who opened a VEAP account during the VEAP era of January 1, 1977 to June 30, 1985, or during the one open VEAP enrollment window of October 28, 1986-March 31, 1987. The conversion opportunity was available only to persons eligible under this law. The decision to enroll is irrevocable. The law required $2,700 payment. Service members may choose a nonrefundable deduction in pay of $150 for 18 months or a lump sum payment of $2,700 or a combination of both. Service members who converted have 18 months from the date of signing the DD Form 2366 to pay the full $2,700.

The law states failure to complete full payment within 18 months results in a loss of all educational benefits under VEAP and MGIB and all monies contributed toward this payment.

VEAP-era service members who never opened a VEAP account have no educational benefits as a veteran.

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. The law allowed for soldiers to convert to the MGIB who had opened a VEAP account by making a minimum deposit on or before the last open VEAP enrollment window of October 28, 1986-March 31, 1987, and who had not closed their VEAP account by withdrawing the money in it.

2. Since the applicant initiated her educational allotment after the passage of the law which allowed for the conversion of VEAP to MGIB, the Board accepts that she had, in fact, thought she was contributing to the MGIB and not the VEAP.

3. However, the applicant has not shown that she had a VEAP account on 9 October 1996, a prerequisite for the conversion.

4. If the applicant had proven that she had opened a VEAP account by making a deposit prior to March 31, 1987, the last day of the last open VEAP enrollment window, the Board may have granted her request. Unfortunately, in the absence of this verification, there is insufficient documentation in which to grant her 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___ ___aao__ ___mjt __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077598
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030116
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.	128.05
2.
3.
4.
5.
6.