IN THE CASE OF:	  

		BOARD DATE:	  16 September 2008

		DOCKET NUMBER:  AR20080009983 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show eligibility for federal benefits based on his contributions to the Montgomery G.I. Bill (MGIB) or refund of the monies he paid into the MGIB.

2.  The applicant states, in effect, that he contributed to the MGIB by paying
$100 per month for 12 months while he served on active duty in the U.S. Army from 9 October 1990 through 14 January 1994.  He also states that his company commander did not allow him to use the MGIB because the unit went on field exercises a lot.  The applicant further states that his discharge was upgraded on 12 February 1999 to an honorable discharge and he is entitled to the benefits, or refund of the monies that he contributed to the MGIB.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 21 May 2008 and DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 14 January 1994.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records show that he enlisted in the U.S. Army Reserve for a period of 8 years on 20 June 1990 and entered active duty in the Regular Army (RA) for a period of 4 years on 9 October 1990.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).

3.  The applicant’s military service records contain a DA Form 2366 (Veterans’ Educational Assistance Act of 1984 (New GI Bill).  Item 2 (Statement of Understanding), block e, states, “I understand that if enrolled in the New GI Bill, my basic pay will be reduced $100 per month for EACH of the first full 12 months of active duty and CANNOT BE REFUNDED, SUSPENDED OR STOPPED.”  Item 2, block g, states, “If I have a two year obligation, I understand that I must complete two years of active duty to receive $250 per month for 36 months.”  Item 2, block h, states, “I must complete two years of active duty service and join the Selected Reserve for a minimum four year service agreement before I am entitled to $300 per month for 36 months.”  Item 2, block j, states, “I must use my benefits within 10 years of my separation or discharge from active duty for the entitlement in paragraph 2.g., or complete my Selected Reserve obligation for the entitlement in paragraph 2.h.”  Item 2, block k, states, “I must receive an honorable discharge for service which established entitlement to the New GI Bill.” Item 2, block l (Service Member) and block m (Witnessing Official) show that the applicant and a witnessing official placed their signatures on the document on
20 June 1990.  Item 3 (Statement of Enrollment) states, “I am enrolling in the ‘New GI Bill’ and ACCEPT THE TERMS OF 2a. through k.”  Item 3, block a (Service Member), and block b (Witnessing Official), show that the applicant and a witnessing official placed their signatures on the document on 11 October 1990.

4.  The applicant’s military service records contain a copy of the applicant’s administrative separation packet that shows the Commander, 1st Cavalry Division, Fort Hood, Texas, approved the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, Section II, paragraph 14-5, under honorable conditions, on 23 November 1993.  

5.  The applicant’s military service records contain a DA Form 669-1-R (Army Continuing Education System (ACES) Record Continuation Sheet).  This document shows the applicant initialed the statement, “I have been counseled at the education center about my educational assistance benefits and the procedures for and advantages of affiliating with the selected reserve.”  This document also shows that the applicant initialed the statement, “I understand that I am not eligible to receive education benefits (MGIB) and will not receive a refund of monies previously reduced from pay.”  This document further shows the applicant placed his signature on the document on 8 December 1993.

6.  The applicant’s military service records contain a Fort Hood Texas (FHT) Form 635-X7 (Army Career and Alumni Program - Transition Counseling Checklist).  Item 1 contains the statement, “Educational assistance benefits under the Montgomery GI Bill and other educational programs to which I am entitled based on my service in the armed forces.  (Mandatory).”  Under the column, “Counseled By ACAP Counselor” this document shows the counselor initialed Item 1.  This document also shows that the applicant placed his signature on the document on 14 January 1994.

7.  The applicant’s military service records contain a copy of Headquarters,
1st Cavalry Division, Fort Hood, Texas, Orders 008-123, dated 12 January 1994. These orders show, in pertinent part, that the applicant was discharged from the Regular Army, effective 14 January 1994.

8.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 18 November 1998, that shows he requested upgrade of his general, under honorable conditions, discharge to an honorable discharge.  On 12 February 1999, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper, but inequitable as to the characterization of service.  Accordingly, the ADRB directed that the characterization of the applicant’s discharge be changed to honorable.  On
15 March 1999, the applicant was notified by the ADRB that his original DD Form 214 was declared void and he was issued a new DD Form 214 reflecting the ADRB’s decision.

9.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 14 January 1994.  This document shows that the applicant entered active duty this period on 9 October 1990 and he was honorably discharged on 14 January 1994, under the provisions of Army Regulation 635-200, Chapter 14, Section II, based on misconduct.  At the time, he was credited with completing 3 years, 3 months, and 4 days net active service this period.  Item 9 (Command To Which Transferred) contains the entry, “NA.”  Item 18 (Remarks), in pertinent part, contains the entry, “DISCHARGE UPGRADED ON 12 FEB 99 FOLLOWING APPLICATION DATED 18 NOV 98//NOTHING FOLLOWS.”

10.  Chapter 30, Title 38 of the U.S, Code, established eligibility requirements for participation in the Veteran's Educational Assistance Act of 1984 (New GI Bill).  It provided that individuals who entered an initial 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 could not be refunded, suspended or stopped.  An honorable discharge is required for receipt of entitlements, which amounted to $300.00 per month for 36 months, for individuals who completed at least 3 years of active duty.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Enlisted/Officer Record Brief (ERB/ORB), separation approval authority documentation or order, or any other document authorized for filing in the Official Military Personnel File (OMPF).

12.  Paragraph 2-4 (Completing the DD Form 214) of the separation documents regulation, contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 15a (Member Contributed to Post-Vietnam Era Veteran’s Educational Assistance Program) specify, in pertinent part, for any Soldier who enlisted after 1985, mark, “No.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show his eligibility for federal benefits because he contributed to the MGIB.  He also contends, if this correction is not approved, he should receive a refund of the monies he paid into the MGIB because his company commander did not allow him to use the MGIB.

2.  The evidence of record shows the applicant enlisted in the RA on 9 October 1990 for a period of 4 years and that he was enrolled in the MGIB.  The evidence of record also shows that the applicant was discharged on 14 January 1994 under honorable conditions.  The evidence of record further shows that, on
12 February 1999, the ADRB directed the characterization of the applicant’s discharge be changed to honorable.

3.  The evidence of record shows that, at the time of his enlistment, the applicant acknowledged that he understood that his basic pay would be reduced $100 per month for each of the first full 12 months of active duty, that the money cannot be refunded, that he must complete his Selected Reserve obligation for the entitlement to the MGIB, that he must use his benefits within 10 years of his separation or discharge from active duty for the entitlement to the MGIB, and he must receive an honorable discharge for the service which established entitlement to the New GI Bill.

4.  There is no evidence of record, and the applicant provides insufficient evidence, that his commander denied him the opportunity to use his MGIB benefits while he was serving on active duty.  In this regard, the evidence of record shows that a Soldier must receive an honorable discharge for the service which established entitlement to the MGIB.  Thus, the applicant’s claim is refuted by the evidence of record, as the applicant (while serving on active duty) had not yet satisfied the statutory requirements for the MGIB entitlement.

5.  The evidence of record shows that, at the time of his separation processing, the applicant was counseled at the education center about his educational assistance benefits, along with the procedures for and advantages of affiliating with the Selected Reserve, and that the applicant initialed the statement, “I understand that I am not eligible to receive education benefits (MGIB) and will not receive a refund of monies previously reduced from pay.”  In this regard, there is no evidence the applicant transferred to the Reserve Component to complete his Selected Reserve obligation for entitlement to the MGIB, or that he completed his 8-year statutory military service obligation.  Thus, the evidence of record clearly shows that the applicant was not entitled to MGIB benefits at that time.  Moreover, the evidence of record clearly shows the applicant understood he would not receive a refund of monies previously reduced from his pay.

6.  It is noted that the applicant’s general discharge, under honorable conditions, was upgraded to an honorable discharge on 12 February 1999, approximately
5 years after he was discharged from active duty.  However, there is no evidence the applicant sought to affiliate with the Selected Reserve or that he applied for a determination by the Veterans Administration of his entitlement to MGIB benefits based on the change in the characterization of discharge.  In any event, the applicant is not entitled to refund of monies previously paid into the MGIB.

7.  Records show the applicant’s DD Form 214, Item 15 (Member Contributed to Post-Vietnam Era Veterans’ Educational Assistance Program) is properly marked “No.”  Therefore, the applicant is not entitled to correction of his DD Form 214.

8.  In view of the foregoing, and considering all the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the applicant's request in this case.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009983



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009983



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1