RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           16 March 2004
      DOCKET NUMBER:   AR2003091231


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Hubert O. Fry                 |     |Member               |
|     |Mr. Richard T. Dunbar             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the date she became eligible for Montgomery
GI Bill (MGIB) benefits be corrected from the date she is recorded as
having paid her lump sum contribution, to the date she paid the first of
the two lump sum contributions she made.  This has been accepted as a
request to show that the Army received her lump sum payment while she was
still on active duty.

2.  The applicant states that she made her first lump sum payment to
establish eligibility for the MGIB when she was being separated from active
duty.  While she was given proof of her payment at that time, the document
which verified her payment was thrown away after she moved.  She was not
aware that she didn’t have MGIB benefits until she enrolled in school.

3.  The applicant provides: a copy of her separation document; a DD Form
2366, Montgomery GI Bill Act of 1984 (MGIB) signed on 10 March 1994; a
letter from her elected representative dated 18 June 2001; a letter from
the US Total Army Personnel Command (PERSCOM) dated 7 June 2001 which
stated that the Defense Finance and Accounting Service had no record of her
making a lump sum payment to establish eligibility for the MGIB, but that
PERSCOM would allow her to make the lump sum payment to establish
eligibility at that late date; a letter from the University of Maryland
dated 24 October 2000 which stated that she had been recommended for
admittance to their graduate school; and a promissory note for $1,200.00
prepared on 23 July 2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 4 April 1994.  The application submitted in this case is dated 2 May
2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 18 February 1987.  She
was awarded the military occupational specialty of medical equipment
repairer and was promoted to pay grade E-5.

4.  On 10 March 1994, she signed a DD Form 2366 which stated that she
intended to pay $1,200.00 in a lump sum to establish eligibility for the
MGIB.

5.  On 4 April 1994, she was involuntarily released from active duty due to
her inability to perform prescribed duties due to parenthood and was issued
an Honorable Discharge Certificate.

6.  The MGIB, as outlined in Title 38, United States Code, provides for
soldiers who entered the service after 30 June 1985, to contribute
$1,200.00 during their first 12 months service.  The program is
administered by the Veterans Administration (VA).

7.  Soldiers who did not enroll in the MGIB when they enlisted may
establish eligibility for the MGIB under Public Law 101-510, Section 561,
if:

      - They were on active duty on 9/30/90 AND separated involuntarily
after 2 February 1991;

      - OR they were involuntarily separated on or after 11/30/93;

      - OR they were voluntarily separated under either the Voluntary
Separation Incentive (VSI) or Special Separation Benefit (SSB) program;

      - AND, before separation, they had their military pay reduced by
$1,200.00 or made a lump sum payment of $1,200.00.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant signed a DD Form 2366 indicating her intention to
make a lump sum contribution to establish eligibility for the MGIB prior to
her separation from active duty, by her own admission she has no evidence
of making that payment.

2.  While the PERSCOM obviously gave the applicant the benefit of doubt to
allow her to make a lump sum payment after her release from active duty,
there is currently insufficient evidence in which to base recommending that
her records be corrected to show that she made her contribution while she
was on active duty.  Some form of evidence would have to be provided to
show that the contribution was, in fact, made at that time.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 April 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 3 April 1997.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mdm__  ___rtd__  ___hof___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __________Mark D. Manning__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091231                            |
|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.       |128.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |