RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060008019 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward M. Montgomery

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 eligibility for the Vietnam Era GI Bill (GI Bill) be reinstated or to allow a buy in to the Montgomery GI Bill (MGIB).

2.  The applicant states, in effect, that the MGIB was one of the primary benefits which attracted new enlistees.  He states, in effect, that he was eligible for the MGIB but was told by his Recruiter to decline the benefit.  He states after serving several years in the military the MGIB was grandfathered for those Soldiers that entered the military prior to his entry on active duty.  Also, he states, in effect, he was told that because he declined the MGIB upon his initial enlistment, he was no longer eligible for that benefit.

3.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 February 2002, the date of his retirement.  The application submitted in this case is dated 25 May 2006.

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.  The applicant entered active duty on 14 July 1981 for a period of four years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 74D1O (Computer/Machine Operator).

4.  His DD Form 1966/1-8 (Application for Enlistment-Armed Forces of the United States) that was completed when the applicant enlisted, shows the entry "I UNDERSTAND THAT I AM ELIGIBLE FOR THE ARMYS ENLISTMENT BONUS AND EDUCATION VEAP KICKER PROGRAMS BUT I DO NOT WISH TO ENLIST FOR THOSE OPTIONS."  That form was signed by the applicant.

5.  He was honorably retired on 28 February 2002 after serving a total of  
20 years, 7 months, and 17 days of active service.
6.  Based on the applicant's enlistment date, he was eligible to participate in Veterans Educational Assistance Program (VEAP) during the open season established for any soldier entering the service between 1 January l977 and  
30 June l985.

7.  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 and $7,200.00 for a 2-year enlistment.  Service must have been under honorable conditions.

8.  Public Law 98-525 authorized individuals entering active duty for the first time after 1 July 1985 to enroll in the MGIB.  However, due to widespread confusion an MGIB open season was authorized from 1 December 1988 to 30 June  
1989 for officers and enlisted personnel who entered active duty after 1 July 1985, but did not enroll in the MGIB.  To assist in getting the word out about this open season, the Defense Finance and Accounting Services authorized a message on all mid-month April 1992 LES’s.  In addition, the PERSCOM states that a message concerning the open season was forwarded to all Army education centers for widest dissemination; the Army Times ran articles; and local publications were advised through their local education centers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to reinstate his eligibility for the GI Bill, or to buy in to the MGIB.

2.  Based on the applicant's enlistment contract, he was eligible to participate in VEAP during the open season established for any soldier entering the service between 1 January 1977 and 30 June 1985.

3.  Evidence shows that the applicant was afforded the opportunity to participate in the VEAP upon his initial entry on active duty and he chose to decline that option.  Soldiers entering active duty for the first time between 1January  
1977 and 30 June 1985 were eligible for the program.

4.  There is no evidence in the applicant's records which proved that the Army Recruiter advised the applicant to decline his educational benefits.  Therefore, he is not entitled to buy in to the MGIB.

5.  The applicant was never eligible for the Vietnam Era GI Bill because he initially enlisted after 1977.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 February 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
27 February 2005.  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

____jea__  ____jlp__  ____emm_  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 E. Anderholm______
          CHAIRPERSON




INDEX

CASE ID
AR20060008019
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070206
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.