RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 January 2005
      DOCKET NUMBER:  AR2004104677


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |Member               |

      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 his separation code and narrative reason
for separation be changed on his DD Form 214 (Certificate of Release or
Discharge From Active Duty).

2.  The applicant states, in effect, that when he voluntarily left active
duty prior to completion of his first full term of service, he was given
erroneous information by the reenlistment NCO (noncommissioned officer) and
education counselor concerning the impact of his decision on his Montgomery
G.I. Bill (MGIB) educational benefits.  When he applied for educational
benefits in 1995, the Veterans Administration (VA) denied him benefits
because he had not completed his first full term of service.

3.  The applicant provides:

      a.  A copy of a self-authored, 2-page letter, dated 22 January 2004.

      b.  Copies of DA Forms 705 (Army Physical Fitness Test Scorecard)
showing that he failed to achieve Army fitness standards.

      c.  A copy of his DA Form 1315 (Reenlistment Data) showing that he
was deemed ineligible to reenlist due to fitness test failures.

      d.  A copy of a VA letter, dated 16 January 2004, explaining why the
applicant was denied educational benefits.

      e.  Copies of his enlistment documents showing that he enlisted for
the MGIB Army College Fund (ACF).

      f.  Copies of his JUMPS Leave and Earning Statements showing that he
contributed $100 per month towards the ACF.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 June 1994.  The application submitted in this case is
dated 22 January 2004.

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 (RA) on 17 July 1991 for 3
years and 17 weeks.  His enlistment contract shows that he participated in
the MGIB and ACF.

4.  The applicant's records show that he was barred from reenlistment
because he could not pass the Army Physical Fitness Test.  On 25 May 1994,
he voluntarily requested early release from active duty stating that he
could not overcome the reason for his bar to reenlistment.  His request was
approved.

5.  On 13 June 1994, the applicant received separation educational benefits
counseling from the Army Continuing Educational System (ACES) office at
Fort Benning, Georgia.  He signed the following statement on his DA Form
669 (ACES Record):

           I  have  been  counseled  on  veteran's  education  benefits  in
           connection with my request for early release.  I understand that
           I have not earned my entire ACF.

6.  The applicant was discharged on 24 June 1994 after serving 2 years,
11 months, and 8 days of his 3 year and 17 week enlistment.  He was
separated by reason of "non-retention on active duty" with a separation
code of "KGH."  The separation authority was Army Regulation (AR) 635-200,
paragraph 16-5a.

7.  In September 1995, the applicant applied for VA educational benefits
and was denied by the VA.  In April 2002, he requested reconsideration and
the VA granted benefits on 12 September 2002.  That approval was
subsequently determined to be in error and benefits were withdrawn.  The VA
explained to the applicant that he was required to complete his enlistment
in order to qualify for benefits unless his separation was considered
involuntary.  The applicant's separation was deemed to be voluntary.

8.  The Montgomery GI Bill-Active Duty (MGIB-AD, or chapter 30 of Title 38,
US Code) is an educational assistance program enacted by Congress to
attract high quality men and women into the Armed Forces by providing
education and training opportunities to eligible persons.  The Department
of Veterans Affairs (VA) administers the program.  Soldiers who enlisted
for 36 or more months of active service and served between 1 July 1985 and
1 November 2000, must have served 36 months to qualify for benefits.  If
separated before completing the required period of service, a Soldier may
still be eligible for MGIB if discharged early for one of the following
reasons:  convenience of the government with 30 months of service for an
obligation of 3 or more years; disability; hardship; a medical condition
that existed prior to service; a condition that interfered with performance
of duty; and a reduction-in-force (RIF) in certain situations.  Any
voluntary separation short of 36 months disqualifies a Soldier from
obtaining MGIB benefits.

9.  AR 635-200 (Enlisted Separations) sets forth the basic authority for
the separation of enlisted personnel.  Paragraph 16-5 deals with Soldiers
who voluntarily separate because they were denied reenlistment by
Department of the Army, or locally-imposed bars.

10.  AR 635-5-1 (Separation Program Designator Codes) provides that
Soldiers separated under the provisions of AR 635-200, paragraph 16-5 shall
receive a separation code of KGH and a narrative reason for separation of
"Non-Retention on Active Duty."

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the RA for 3 years and 17 weeks.  He entered
active duty on 17 July 1991.  He was honorably discharged on 24 June 1994
with 2 years, 11 months, and 8 days of creditable active Federal service.

2.  The applicant's MGIB-AD benefits were covered by the rules in effect
for Soldiers who served on active duty between 1 July 1985 and 1 November
2000.  Those rules mandated completion of a full 36 months in order to
qualify for MGIB benefits unless involuntarily discharged early for a
specific set of reasons.

3.  The applicant voluntarily chose to separate because he did not believe
he could overcome the reason for his bar to reenlistment – physical fitness
shortcomings.  He was properly discharged by reason of non-retention on
active duty under the provisions of paragraph 16-5.  He was properly
assigned a separation code of KGH.

4.  The applicant was counseled concerning his MGIB benefits and the
ramifications of his decision to voluntarily separate.  He signed a
statement on his ACES Record indicating that he knew he did not meet MGIB
qualifications.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 June 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 23 June 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __ecp___  __bkk___  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.



                                        Raymond J. Wagner
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104677                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050127                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0000                                |
|2.                      |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]