RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060013256 


	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.


x
	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, that his DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected to show in block 15a. that he paid into the Montgomery G.I. Bill (MGIB).  

2.  The applicant states, in effect, that he signed up for the MGIB when he enlisted, and that he paid 100 dollars a month for 12 months, but that it was never reflected in his military records and his DD Form 214 reflects in block 15a. that he did not contribute to the Post-Vietnam Era Veterans’ Educational Assistance Program. 

3.  The applicant provides copies of his separation documents and leave and earnings statements (LES) showing he paid $100.00 per month for the first year for his GI Bill. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 1 June 1992.  The application submitted in this case is dated 5 September 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 enlisted in the Regular Army in Seattle, Washington on 6 October 1988 for a period of 5 years and training as an attack helicopter repairer.  He was transferred to Fort Dix, New Jersey to undergo his basic combat training (BCT) and on 12 October 1988, he signed and executed a
DD Form 2366 (Montgomery G.I. Bill Act of 1984 [MGIB]), which clearly shows that he did not disenroll from the MGIB when he entered active duty. 
  
4.  He completed his BCT and was transferred to Fort Eustis, Virginia to undergo his Advanced Individual Training (AIT).  He successfully completed his AIT and was transferred to Fort Hood, Texas.  During the first year of his service $100.00 per month was deducted from his pay for his contribution to the MGIB.  He departed Fort Hood on 9 May 1990 and was transferred to Germany for assignment to an aviation regiment.  He was advanced to the pay grade of E-4 on 1 October 1990 and was deployed to Southwest Asia from 23 December 1990 to 1 May 1991 in support of Operation Desert Shield/Storm.

5.  On 1 June 1992, he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, paragraph 16-8 and the 1992 Early Transition Program.  He had served 3 years, 7 months, and 26 days of total active service and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  His DD Form 214 issued at the time of his REFRAD shows in block 15a. (Member Contributed to Post-Vietnam Era Veteran’s Educational Assistance Program) the entry “No.”  His DD Form 214 shows that he entered active duty on 6 October 1988 and that he was a high school graduate or equivalent.  

6.  He enlisted in the North Carolina Army National Guard on 29 December 1997 and served until he was honorably discharged on 28 December 2000, due to the expiration of his term of service (ETS). 

7.  Paragraph 2-4 of Army Regulation 635-5 (Separation Documents) states, in pertinent part, that in Item 15a of the DD Form 214, if Soldier contributed to the Veteran’s Educational Assistance Program (VEAP) and did not get money back, mark "Yes."   For those who enlisted before 1984, contributed to VEAP, and received their money back, mark "No."  For any soldier who enlisted after 1985, mark "No."

8.  Chapter 30 of Title 38, United States Code established, in pertinent part, the MGIB.  To be eligible under Category 1, Soldiers have met the following requirements:

a.  first entered active duty after 30 June 1985, and didn’t decline the MGIB in writing upon entry into active duty.

b.  must receive a fully honorable discharge.

c.  complete high school, obtain an equivalency certificate, or complete 
12 hours toward a college degree before applying for MGIB benefits.

9.  MGIB benefits are administered by the Department of Veterans Affairs (DVA), and the DVA administers its benefit programs under its own regulations and policies.


DISCUSSION AND CONCLUSIONS:

1.  Army Regulation 635-5 states, in pertinent part, that an entry of “No” is the only possible entry in Item 15a of the DD Form 214 for a Soldier who enlisted after 1985.  Also, there is no regulatory requirement to include a statement on the DD Form 214 which shows whether or not a Soldier contributed to the MGIB or not.  Therefore, there is no basis for correcting the applicant’s DD Form 214 to show that he paid into the MGIB.

2.  The Board does not question that the applicant did not disenroll from the MGIB when he entered active duty, and that he paid $1,200.00 into the MGIB.  However, MGIB benefits are administered by the DVA, and the DVA administers its benefit programs under its own regulations and policies.  Granting DVA benefits is not within the purview of the ABCMR.  

3.  Eligibility requirements for MGIB benefits are set by law and are complex.  To receive a formal decision from the DVA regarding any possible entitlement to MGIB benefits, the applicant may apply online at www.gibill.va.gov, and clicking on Education Benefits, then How to Apply for Benefits.  After completing the form, the applicant should click on the Submit button and submit it electronically to the DVA.  A hard copy of an Application for VA Education Benefits is also enclosed in the event the applicant wishes to mail his application.  
  
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 June 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 May 1995.  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

__x__  __x__  x ___  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.




_____x_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013256
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
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         1.110.0000
189/CORR 214
2.

3.

4.

5.

6.