RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 March 2007
DOCKET NUMBER: AR20060009864
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. Gerard W. Schwartz
Acting Director
Mr. Dean L. Turnbull
Analyst
The following members, a quorum, were present:
Mr. William F. Crain
Chairperson
Mr. Edward E. Montgomery
Member
Ms. Rea M. Nuppenau
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 the $1,200.00 that was deducted from his pay for the Montgomery G.I. Bill (MGIB) be refunded to him.
2. The applicant states, in effect, at the time of his application for the MGIB benefits (in 2004), he did not know his application was erroneous. He states, in effect, it was only after the results of a congressional review that he found out that he was not eligible for the MGIB benefits, so he would like to have his $1,200.00 refunded.
3. The applicant provides:
a. a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty);
b. a copy of a letter addressed to his elected representative, dated 20 March 2006 and a copy of a letter from the elected representative addressed to the Department of Veterans Affairs (DVA), dated 30 March 2006;
c. a copy of a letter from the DVA addressed to the elected representative, dated 17 April 2006; and
d. a copy of a letter from the elected representative addressed to the applicant, dated 9 May 2006.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show that he entered active duty on 9 May 1985 and was honorably released on 1 July 1991 after serving 6 years, 1 month, and
23 days of active service.
2. On 30 September 1991, the applicant entered active duty with the Army National Guard in an Active Guard Reserve (AGR) status for the state of California for a period of three years.
3. On 28 July 2000, the applicant's records show that he enrolled in the MGIB with the intent to further his education through the MGIB benefits upon leaving the service. On 30 August 2005, the applicant was honorably retired from AGR status after serving a total of 20 years of active federal service.
4. In the applicant's letter, dated 20 March 2006, it was stated that when he applied for the MGIB he was denied benefits, so he wrote to his elected representative for assistance. On 30 March 2006, the elected representative wrote to the DVA to inquire as to why the applicant was not eligible for education benefits under the MGIB-Active Duty Chapter 30 program.
5. In the letter from the DVA addressed to the elected representative, dated
17 April 2006, it was stated that even though the applicant contributed to the Chapter 30 program he was not eligible for benefits because he did not enroll during the open window between 1 November 2000 and 31 October 2001. The letter also stated that the applicant did not contribute the required $2,700.00 within 18 months from the date he made the election. He elected chapter 30 MGIB on 28 July 2000 and made a contribution of $1,200.00.
6. On 9 May 2006, the elected representative informed the applicant as to why his MGIB benefits were denied.
7. Title 38 U.S. Code, chapter 30, established eligibility requirements for participation in the Veterans' Educational Assistance Act of 1984 (New GI Bill). It provides that individuals who initially entered on an extended period of active duty on or after 1 July 1985 would be automatically enrolled in the program unless they opted to disenroll within a specific time frame established by the individual services. Once enrolled in the New GI Bill the individual's basic pay was reduced $100.00 per month for each of the first full 12 months of active duty and the deductions could not be refunded, suspended or stopped. An honorable discharge is required for receipt of entitlements.
8. Title 10, U. S. Code, section 1552, the law which provides for the Board, states that The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or anothers service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.
DISCUSSION AND CONCLUSIONS:
1. The evidence of records show that the applicant contracted for the MGIB on 28 July 2000 and contributed $1,200.00 during the first 12 months while on AGR status with the expectation that he would have education benefits upon leaving the service.
2. Although, the applicant is not entitled to a refund under Title 38 U.S. Code, Chapter 30 the records show that an administrative error was made at the time the applicant enrolled for the MGIB on 28 July 2000. Therefore, in the interest of justice, the applicant's records should be corrected to show he never enrolled in the MGIB and is due a refund of the $1,200.00 he contributed.
BOARD VOTE:
___rmn__ ___eem__ ___wfc__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show that he was never enrolled in the MGIB, and that the $1,200.00 deducted from his pay for the MGIB be refunded to him from Army funds.
_________William F. Crain_________
CHAIRPERSON
INDEX
CASE ID
AR20060009864
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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