IN THE CASE OF:	  

		BOARD DATE:	  	  17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011613


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 that he completed his initial enlistment honorably to establish eligibility for Montgomery GI Bill (MGIB) benefits and receipt of MGIB benefits.

2.  The applicant states that he finished his initial 3-year enlistment term of service for MGIB benefits and then reenlisted.  He continues to state that he desires his MGIB benefits to which he feels he is entitled.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a copy of his honorable discharge certificate, and a copy of his oath of reenlistment certificate in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the Regular Army on 17 November 1997 for a period of 3 years.  He completed basic training and advanced individual training and was awarded the military occupational specialty 13B (Cannon Crewmember).

2.  The applicant executed a DD Form 2366 (Montgomery GI Bill Act of 1984) enrollment request on 3 November 1997 in connection with his initial enlistment.  The DD Form 2366 specifies that he “must receive an HONORABLE discharge for service establishing entitlement to the MGIB.”

3.  The applicant reenlisted on 25 April 2000 for a period of 3 years.  His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows that he completed 2 years, 5 months, and 8 days of his previous military service commitment at the time of his reenlistment.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he received a bad conduct discharge by reason of court martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) on 28 April 2006.  His DD Form 214 shows that he served a total of 7 years, 6 months, and 15 days of creditable active military service with 331 days of lost time during this period.

5.  Item 18 (Remarks) of the applicant’s DD Form 214 shows the entry “CONTINUOUS HONORABLE ACTIVE SERVICE 19971116-20000424// IMMEDIATE REENLISTMENTS THIS PERIOD – 20000425-20060428.”

6.  Title 38, U.S. Code, chapter 1, section 3.13(c), provides that, “Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when the following conditions are met:  (1) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (2) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

7.  The MGIB provides a program of education benefits administered by the Department of Veterans Affairs that may be used while on active duty or after separation from active duty.  Veterans must receive a fully honorable military discharge for the period of service on which MGIB eligibility is based.  Discharges "under honorable conditions" and "general" discharges do not establish eligibility.  Veterans who do not receive a qualifying discharge from one period of service may qualify based on a discharge from another qualifying period of service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 (Character of Service/Description of Separation) of this regulation provides, in pertinent part, that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of his records to show that he completed his initial enlistment honorably to establish eligibility for MGIB benefits was carefully considered and determined to be without merit.

2.  The applicant's DD Form 214 shows that he received a bad conduct discharge by reason of court martial on 28 April 2006.

3.  Item 18 of the applicant’s DD Form 214 shows the entry “CONTINUOUS HONORABLE ACTIVE SERVICE 19971116-20000424”; therefore, his previous period of honorable service is accurately represented.

4.  The applicant’s military service records do not show that he was previously honorably discharged from any period of active military service as he contends.

5.  Since the applicant would have been eligible for an honorable discharge on 25 April 2000 on the date of his reenlistment, it appears that the Department of Veterans Affairs is statutorily required to consider his first period of honorable service in determining his eligibility for veterans’ benefits.

6.  The MGIB provides a program of education benefits administered by the Department of Veterans Affairs.  Eligibility for veterans’ benefits, to include educational benefits under the MGIB, does not fall within the Army Board for Correction of Military Record’s purview.  Therefore, the Board has no authority to restore MGIB benefits.

7.  To justify correction of a military record, the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  There is no evidence that the applicant’s records contain erroneous information or that the characterization of his service is unjust, and the applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief in this case.

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 pertaining to 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)                                         AR20080011613





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ABCMR Record of Proceedings (cont)                                         AR20080011613



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