RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070006497 


	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.




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 his Montgomery G.I. Bill (MGIB) benefits be reinstated.

2.  The applicant states that in January 2003, he was assigned to labor as a missionary of The Church of Jesus Christ of Latter-Day Saints for a period of 24 months in a foreign country.  This mission required him to be in an Inactive National Guard (ING) status.  He further adds that due to medical reasons, he returned home for a period of 5 months, during which he returned to his Army National Guard unit in an active status.  He subsequently returned to his mission which required him to once again be in the ING.  As a result of being in an inactive status twice, he was denied payment of his MGIB benefits. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Letter, dated 5 November 2002, The Church of Jesus Christ of Latter-Day Saints, Salt Lake City, Utah, call to serve as an overseas missionary.

	b.  Undated letter, applicant's request to change his Army National Guard status from inactive to active. 

	c.  Letter, dated 10 May 2004, The Church of Jesus Christ of Latter-Day Saints, Salt Lake City, Utah, reinstatement as a full-time missionary.

	d.  Letter, dated 20 April 2005, The Church of Jesus Christ of Latter-Day Saints, Salt Lake City, Utah, formal release as a missionary.

	e.  Electronic mail (email), dated 6 October 2005, from the Utah Army National Guard (UTARNG) MGIB Manager, denying the applicant his MGIB benefits. 

	f.  Letter of Support, dated 10 March 2006, from the applicant's immediate commander.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the UTARNG for a period of 8 years on 13 October 2000.  He agreed to be a member of an Army National Guard unit for a period of 6 years and a member of Individual Ready Reserve (IRR) or Inactive National Guard (ING) for 2 years.
2.  In connection with his enlistment in the UTARNG, the applicant elected enlistment for the Civilian Acquired Skills Program (CASP) for military occupational specialty (MOS) 02H (Oboe Player).  He also elected enrollment in the MGIB.

3.  Item 5 (Authorized Non-Participation) of the applicant's DD Form 2384-1 [Notice of Basic Eligibility (NOBE)] states "If I am not able to continue to serve in the Selected Reserve for a valid reason approved by my Reserve component, following a period of satisfactory Reserve participation, I may be authorized up to one year of non-availability, or up to three years in cases of religious missionary obligation or with prior approval of the Service Secretary.  I understand that I must re-obligate for any approved period of non-availability upon re-affiliation with a Reserve component.  Failure to affiliate with the Selected Reserve at the end of this period will result in permanent ineligibility to benefits.  Only one approved release is permitted during the 10 year benefit period."

4.  On 3 September 2002, he was ordered to initial active duty training (IADT).  He completed basic combat and advanced individual training and was awarded MOS 02H.  He was released from active duty and returned to his UTARNG unit on 13 December 2002.  

5.  On 5 November 2002, by letter, The Church of Jesus Christ of Latter-Day Saints, Salt Lake City, Utah, informed the applicant that he was called to serve as missionary in Slovenia and was ordered to report to the Missionary Training Center, Provo, Utah, on 22 January 2003.

6.  The facts and circumstances surrounding the applicant's return from Slovenia to Utah for medical treatment are not available for review with this case.  However, on an unknown date after his return, the applicant submitted a letter to "Whom it may concern" stating that he had been on "Inactive National Guard" status for the previous 11 months and that he returned early from a mission for The Church of Jesus Christ of Latter-Day Saints.  He further requested to change his inactive status to active and stated that he would remain at home until he was cleared for release by The Church of Jesus Christ of Latter-Day Saints and that once he is cleared, he would reenter the mission field and again declare Inactive National Guard status. 

7.  On 30 December 2003, Headquarters, Utah National Guard, Office of the Adjutant General, Draper, Utah, published Orders 364-022, releasing the applicant from the ING and transferring him to the "Active National Guard" of the 23rd Adjutant General Army Band, West Jordan, Utah, effective 22 December 2003.  
8.  On 10 May 2004, by letter, The Church of Jesus Christ of Latter-Day Saints, Salt Lake City, Utah, informed the applicant that he was reinstated as a full-time missionary and was assigned to the Connecticut Hartford Mission.

9.  On 9 June 2004, Joint Forces Headquarters, Utah Army National Guard, Draper, Utah, published Orders 161-002, releasing the applicant from the active National Guard of the 23rd Adjutant General Army Band and transferring him to the ING for a period of 1 year and 2 months, effective 6 May 2004, to complete his Church of Jesus Christ of Latter-Day Saints mission.

10.  On 20 July 2005, the applicant's labor in the Connecticut Hartford Mission was ended and he was formally released as a missionary.

11.  On 6 September 2005, Joint Forces Headquarters, UTARNG, Draper, Utah, published Orders 249-011, releasing the applicant from the ING and transferring him to the active National Guard of the 23rd Adjutant General Army Band, effective 6 September 2005.

12.  On 6 September 2005, the applicant extended his initial enlistment in the UTARNG by a period of 1 year, 3 months, and 11 days. 

13.  On 6 October 2005, by electronic mail (email), the MGIB Manager for the UTARNG, informed the applicant that his MGIB benefits were terminated because he went into an inactive status more than once during the period of his eligibility for the MGIB.

14.  In a letter of support, dated 10 March 2006, the applicant's immediate commander stated that he has known the applicant and his family for a long time. After the applicant's enlistment in the UTARNG, he was transferred to the ING to complete a 2-year missionary assignment.  However, he became ill about a year into his mission and returned home for medical treatment.  The Church did not release him from his assignment as a missionary.  The commander further added that he encouraged the applicant to perform in the 23rd Band within the limits of his medical profile and transferred him out of the ING into the active National Guard.  Once the applicant finished his medical treatment, the commander released him back into the ING and he was returned to full time missionary service.  The commander concludes that he did not know the impact of his actions on the applicant's educational benefits and that had he (the commander) understood the rules associated with two periods of ING, he would have counseled the applicant not to return to the band during his brief medical treatment.  The commander concluded with an appeal to reinstate the applicant's educational benefits.
15.  An advisory opinion was obtained on 10 March in the processing of this case.  The Chief, Personnel Division, National Guard Bureau, Arlington, Virginia, recommended approval of the applicant's request to reinstate his MGIB benefits. The Chief stated that the applicant lost his MGIB benefits because he entered into the ING on two occasions.  Soldiers are only allowed one period of non-availability within the 10-year MGIB benefit and that the period of time cannot exceed 1 year, or 3 years in cases of a religious missionary obligation.

16.  The Chief further stated that the applicant was originally transferred to the ING in order to complete a 2-year missionary assignment.  He returned after 12 months due to illness and asked his commander to transfer him out of the ING.  The applicant's commander requested the applicant participate to the extent that his illness would allow and transferred him out of the ING to cover pay and liability of the drills.  Once the applicant recovered, his commander returned him to the ING.  Once the applicant was finished with his missionary assignment, he returned to an active status with the National Guard.  The period of time from the applicant's initial entry into the ING and final exit from the ING was thirty one and a half months.  The thirty one and a half months is within the 3 year limit of non-availability for missionary assignments.  

17.  The applicant was provided with a copy of this advisory opinion on 18 March 2007.  He concurred with the opinion on 23 March 2008.

18.  Title 10, U.S. Code, section 16131, provides that to encourage membership in units of the Selected Reserve of the Ready Reserve, the Secretary of each military department, under regulations prescribed by the Secretary of Defense, and the Secretary of Homeland Security, under regulations prescribed by the Secretary with respect to the Coast Guard when it is not operating as a service in the Navy, shall establish and maintain a program to provide educational assistance to members of the Selected Reserve of the Ready Reserve of the armed forces under the jurisdiction of the Secretary concerned who agree to remain members of the Selected Reserve for a period of not less than six years.

19.  Title 10, U.S. Code, section 16132, provides that a person who after 30 June 1985, enlists, reenlists, or extends an enlistment as a Reserve for service in the Selected Reserve for a period of not less than six years; or is appointed as, or is serving as, a Reserve officer and agrees to serve in the Selected Reserve for a period of not less than six years in addition to any other period of obligated service in the Selected Reserve to which the person may be subject; and before applying for benefits under this section, has completed the requirements of a secondary school diploma (or an equivalency certificate); is entitled to educational assistance under section 16131 of this title. 
20.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNGUS)
and the U.S Army Reserve (USAR) incentive programs.  Chapter 8 of this regulation covers the Selected Reserve Montgomery G.I. Bill.  It states, in pertinent part, that a Soldier is eligible for educational assistance under the Selected Reserve MGIB when he or she, after 30 Jun 85, contracts to serve for not less than 6 years in the Selected Reserve.  When the Soldier meets all of the eligibility criteria, he or she will be issued a DD Form 2384 (Selected Reserve Educational Assistance (GI Bill) Notice of Basic Eligibility) or, DD Form 2384–1 (Notice of Basic Eligibility) (NOBE).  Following issuance of a NOBE, the Soldier may apply to the Department of Veterans Affairs for educational assistance.  

21.  Eligibility for educational assistance under the Selective Reserve MGIB ceases if an enrolled Soldier is declared an unsatisfactory participant or is discharged or separated from the Selected Reserve except in cases of appointment as a commissioned officer or warrant officer as a Reserve of the Army with assignment to the Selected Reserve, due to disability, and certain other exceptions.  Only one “voluntary” release from the Selected Reserve may be permitted during the 10-year benefit period for the purpose of regaining eligibility to educational assistance benefits authorized in this regulation.  Following a period of satisfactory service, a Soldier who is released from the Selected Reserve for voluntary separation or reassignment, may regain eligibility for educational assistance.  This is provided re-affiliation in the Selected Reserve occurs within 1 year, except in cases involving a religious missionary obligation where the Soldier has up to 3 years in which to re-affiliate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to reinstatement of his MGIB benefits.

2.  The applicant was originally transferred to the ING to complete a 2 year missionary assignment.  He returned after 1 year due to illness and asked his commander to allow him to drill with his unit.  Once he recovered, he was transferred to ING status again.  He returned to an active status in the National Guard upon completion of his missionary assignment.

3.  Evidence of record shows that the applicant requested voluntary release from an active National Guard status for missionary assignments on two occasions during the period of eligibility for the educational assistance benefits.  However, in each instance, the applicant was re-affiliated with his ARNG unit.  

4.  Evidence of record further shows the applicant was not counseled properly by his immediate commander regarding non-availability due to missionary assignments.  The applicant's commander submitted a statement explaining that he did not know the applicant would lose his MGIB benefits if he allowed him to work during his break in missionary service.  Had the company commander known and counseled the applicant appropriately, the applicant would have stayed in an inactive National Guard status for the entire duration of the missionary assignment and the applicant would have maintained eligibility for the MGIB benefits.  

5.  It appears that upon his return on 30 December 2003 for medical treatment, the applicant was erroneously advised by his commander to change his military status from ING to active National Guard and remain in the active National Guard for a period of 5 months and 5 days, until 9 June 2004.  This period of status change is the primary reason he was disqualified from receiving the MGIB benefits.

6.  In those cases involving a religious missionary obligation, a Soldier has up to 3 years to re-affiliate with his/her National Guard unit.  The period from the applicant's initial entry into the Inactive National Guard (January 2003) and final exit from the Inactive National Guard (September 2005) is nearly 32 months, which is well within the 3 years allowed for cases involving religious missionary obligations.  

7.  In view of the foregoing and as a matter of equity, it would be appropriate in this case to authorize the applicant payment of his MGIB benefits, provided he is otherwise qualified.  

8.  While relief is called for in this case, the manner in which this relief is provided remains problematic.  In order to provide the applicant with the requested relief, the records should be corrected to revoke the orders transferring him from inactive to active National Guard status on 30 December 2003 and the orders transferring him from active to inactive National Guard status on 9 June 2004.  However, in order to retain the pay, retirement points, and other benefits he earned during this period, the orders that transferred him to active National Guard status on 6 September 2005, should be amended to include the period covered by the two revoked orders.  Additionally, any drills he performed during the period in question, should be considered as having been performed during the newly established period. 



BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  revoking Headquarters, Utah National Guard, Office of the Adjutant General, Draper, Utah, Orders 364-022, dated 30 December 2003;

	b.  revoking Joint Forces Headquarters, Utah Army National Guard, Draper, Utah, Orders 161-002, dated 9 June 2004; 

	c.  amending Joint Forces Headquarters, Utah Army National Guard, Draper, Utah, Orders 249-011, dated 6 September 2005, to show the effective date as 2 April 2005 instead of 6 September 2005; and

	d.  showing that any retirement points and pay earned during the period 30 September 2003 to 9 June 2004 were earned during the period 2 April 2005 to 6 September 2005, thus capturing the 5 months and 5 days of active National Guard service from 30 December 2003 to 9 June 2004.



								XXX
      ______________________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070006497



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DEPARTMENT OF THE ARMY
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