RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 AUGUST 2006
      DOCKET NUMBER:  AR20050015157


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. James Hastie                  |     |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, in effect, correction of his records to permit
utilization of his Montgomery GI Bill education benefits.

2.  The applicant states he has been denied his education benefits for the
past 10 years.  He states he fully contributed to the program but was later
denied benefits due to an injustice that occurred while he was on active
duty.  The applicant states that he was called up to serve in Somalia and
upon departure for that assignment was instructed by his supervisors to
draft a final will and testament and to give general power of attorney to
his former spouse.

3.  He states it was during his deployment that his former spouse abused
the general power of attorney and destroyed his military career along with
his future education.  He states during his 3 months of deployment his
former spouse abused his credit and good name which then caused him to
become mired in debt.  He states that upon his redeployment he divorced his
spouse and attempted to recover from this debt.  He notes that during this
time a new commander and unit first sergeant were assigned and were unaware
of his situation and when they were told he states they were embarrassed of
him and the situation that had befallen them.  He states he was then
harassed and threatened with judicial proceedings.  He states he was left
with no choice but to contact his congressional representative who assisted
in obtaining his release from active duty so he could pursue corrective
measures without persecution.

4.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 September 1994.  The application submitted in this case
is dated
8 October 2005.

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 limitations 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.  Records available to the Board indicate the applicant married on 5
September 1991 and entered active duty as a Regular Army Soldier for a
period of 5 years on 15 October 1991.  His enlistment documents contain a
form on which he acknowledged his responsibilities associated with
entitlements to the GI Bill education benefits.  He acknowledged that he
would have $100.00 per month deducted from his basic pay for the first 12
months of active duty and that the funds would not be refunded.  He
acknowledged that he was required to complete 3 years of service before he
would be entitled to benefits.

4.  The applicant was deployed to Somalia between January and April 1993.
In September 1993 his unit commander, Captain P, recommended approval of an
Army Achievement Medal based on his service in Somalia.  In December 1993
he was promoted to pay grade E-4.

5.  A Record of Emergency Data, signed by the applicant on 3 June 1994
indicated he was divorced.

6.  On 22 July 1994 the applicant’s unit commander, Captain P, recommended
the applicant be barred from reenlisting.  She cited an April 1994 record
of nonjudicial punishment for failing to obey a lawful order, four
counseling statements rendered between 13 March and 20 May 1994, and two
memorandums for record dated in April and May 1994 as the basis for her
recommendation.  She noted the applicant demonstrated conduct which was
unsuitable for continued military service.  None of the documents which
served as the basis for the bar to reenlistment were available to the
Board.

7.  The applicant acknowledged receipt of the proposed bar to reenlistment
and did not submit a statement in his own behalf.

8.  The bar to reenlistment was approved on 8 August 1994 and that same day
the applicant submitted a request to be administratively discharged due to
the local bar to reenlistment which he felt he would be unable to overcome.
 He signed a statement acknowledging that he understood that his voluntary
separation action would result in his forfeiting all of his education
entitlements under the GI Bill and that he would not receive a refund of
the monies he had contributed.

9.  His request was approved and on 1 September 1994 the applicant was
discharged.




DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, which
confirms that there was any error or injustice in the denial of his
education benefits.

2.  The evidence which is available indicates the applicant was aware of
the requirements for entitlement to education benefits at the time of his
enlistment and that by requesting an administrative separation in 1994 that
he would lose entitlement to those benefits.

3.  His argument that a new commander and unit first sergeant harassed him
to the point that he felt he had no choice but to request separation is not
supported by the evidence available to the Board.  The commander which
recommended the applicant receive a bar to reenlistment was the same
commander who just months earlier had recommended him for an award of the
Army Achievement Medal and saw him promoted to pay grade E-4.

4.  Although the specifics of the applicant’s bar to reenlistment were not
available to the Board, it is unlikely that the applicant’s chain of
commander would not have provided him with assistance in resolving his debt
problem.  Clearly, if the counseling statements noted in the bar to
reenlistment were associated with a debt problem, is evidence that the
applicant’s chain of command was attempting to assist the applicant and
turned to a bar to reenlistment only after counseling had failed.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 September 1994; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
31 August 1997.  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

___JA  __  __DB ___  __JH  ___  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.




                                  ____James Anderholm______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015157                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060808                                |
|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.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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