MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 30 September 2003
                  DOCKET NUMBER: AR2003086759

         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. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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 Montgomery G. I. Bill (MGIB) eligibility be reinstated.

APPLICANT STATES: That he was never informed that the eligibility requirements for the MGIB changed. According to the Army National Guard (ARNG) enlistment documents he signed, he would never be eligible since he already had a bachelor's degree. After spending 10 years in the ARNG, he joined the U. S. Army Reserve (USAR) and found out that the MGIB had changed to include usage for up to a Masters degree. He just reenlisted for 6 more years under the assumption that he would be eligible for the MGIB but the Department of Veterans Affairs (VA) has denied his eligibility due to the 10-year rule. After a records review, he found a DD Form 2384-1 (Notice of Basic Eligibility) dated 22 September 1992. He was never informed of his eligibility status and he did not sign the DD Form 2384-1.

The applicant further states that VA Pamphlet 22-90-3 gives 4 reasons for his requesting relief: (1) On page 1, it states that a soldier must have a 6-year obligation to serve in the Selected Reserve to become eligible for the MGIB; (2) it also states that, beginning on 1 October 1990 (prior to his original enlistment), a member of the Selected Reserve with a bachelors degree can become eligible by signing a new contract that will result in a 6-year reserve obligation. His original enlistment was for 8 years but the paperwork he signed stated he was not eligible; (3) on page 3, it states that benefits end 10 years from the date of eligibility; however, he was never informed that he was eligible; and (4) on page 4, it states that, beginning on 30 November 1993 (later than the previously stated 1 October 1990 date), one may seek a graduate degree at a college or university.

EVIDENCE OF RECORD: The applicant's military records from the ARNG are not available.

The applicant apparently enlisted in the ARNG around April 1991. At that time he apparently had a bachelor's degree. On 16 April 1991, the applicant signed a DA Form 5435-R (Statement of Understanding Selected Reserve Educational Assistance Program (SHORT TITLE: The New GI Bill)). Section I (Eligibility) stated that one of the qualifying criteria was not to have received a baccalaureate degree or equivalent. Section III (Benefits) stated that the maximum time to draw unused benefits was 10 years from date of entitlement, separation from the Selected Reserve, award of a baccalaureate degree or equivalent, acceptance of a Reserve Officers' Training Corps (ROTC) scholarship, or designation as an unsatisfactory participant, whichever occurred first.

The applicant provided a DD Form 2384-1 signed by the unit education services officer but unsigned by him, dated 22 September 1992, which stated in paragraph 2 (Basic Eligibility Criteria) that the applicant met the eligibility criteria for the Selected Reserve Educational Assistance program in that he agreed to serve 6 years in the Selected Reserve on or after 1 October 1990; had a high school diploma or equivalency certificate (emphasis added); completed initial active duty for training, if required; and was not receiving an ROTC scholarship.

The applicant separated from the ARNG on an unknown date. He enlisted in the USAR on 15 September 2001 for 1 year. On 15 September 2001, he signed a USAREC Form 1122-R-3 (Statement of Understanding-Army Policy USAREC Addendum to DA Form 3540 (Acknowledgement of Enlistment)). He checked that he understood he was entitled to the MGIB in the amount of $8,468.00 and that he understood the MGIB was authorized for graduate studies.

Apparently, the applicant has reenlisted in the USAR but his reenlistment contract is not available.

Army Regulation 135-178 establishes policies governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the USAR. Chapter 9, section IV discusses defective 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.

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. It appears the applicant's contention that he was initially informed by the Army that he was not entitled to the MGIB, and then later the Army failed to inform him that a change in law made him eligible for the MGIB, is correct.

2. However, the Board concludes that the applicant has failed to show that he was harmed by the Army's failure to provide him accurate information regarding a VA educational program.

3. The applicant provides no evidence to show that he was intent on pursuing his higher education and thereby incurred any financial indebtedness that would not have occurred had he had MGIB benefits to pay for his education. There is no evidence to show the applicant attempted to further his education until sometime after he enlisted in the USAR in September 2001 (or sometime after he reenlisted in the USAR on an unknown date for 6 years) at which time he was informed his 10-year eligibility period had expired.

4. If the applicant reenlisted in the USAR and relied on the representation that he was entitled to MGIB benefits to effect that reenlistment, there is a regulatory remedy for correcting the error in that the applicant may request discharge due to a defective reenlistment agreement.

5. In addition, the MGIB is a VA program. The Department of Defense has no jurisdiction over the policies of the VA and has no authority to waive eligibility requirements for that program. The applicant would have to submit any request for a waiver of the 10-year expiration period, possibly basing his request on the fact he did not sign the DD For 2384-1, to the VA.

6. 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___ __mhm___ __mvt___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003086759
SUFFIX
RECON
DATE BOARDED	20030930
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	103.01
2.
3.
4.
5.
6.