IN THE CASE OF:	  

		BOARD DATE:	  	  17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012909


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.

2.  The applicant states, in effect, that he finished his initial enlistment contract for MGIB benefits, then reenlisted and received a general under honorable conditions discharge and lost his MGIB benefits.  He states that he received an honorable discharge from his first enlistment.  He continues that he completed his first contract and paid his MGIB enrollment terms in full; he received a general under honorable conditions discharge for his second enlistment which shouldn’t affect his MGIB benefits.  He requests restoration of his MGIB benefits stating, in effect, that he was an infantryman in the military and there isn’t much that he can do in the civilian world, that he took full responsibility for his misconduct and served his civilian punishment, that he will not waste his MGIB benefits, and that he was a good Soldier and that things [sic] fell apart when he returned from service in Iraq.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the Regular Army on 6 February 2002 for a period of 3 years.  He completed basic training and advanced individual training and was awarded the military occupational specialty 11B (Infantryman).

2.  The applicant executed a DD Form 2366 (Montgomery GI Bill Act of 1984) enrollment request on 12 February 2002 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 22 June 2004 for a period of 2 years.  His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows that he completed 2 years, 4 months, and 16 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 was discharged under honorable conditions for misconduct of a serious offense under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c, in the rank of specialist/pay grade E-4 on 8 June 2006.  His DD Form 214 shows that he served a total of 4 years, 4 months and 3 days of creditable active military service during this period.

5.  Item 18 (Remarks) of the applicant’s DD Form 214 shows the entry “CONTINUOUS HONORABLE ACTIVE SERVICE 20020206-20040621// IMMEDIATE REENLISTMENTS THIS PERIOD – 20040622-20060608.”

6.  On 30 July 2008, the Army Discharge Review Board (ADRB) determined that the applicant was properly and equitably discharged and denied his petition to upgrade his discharge.  The ADRB determined that he diminished the quality of his service below that meriting a fully honorable discharge.  The determination further stated that eligibility for veterans’ benefits, to include educational benefits under the MGIB, does not fall within the Board’s purview and advised him to contact a local office of the Department of Veterans Affairs for further assistance.

7.  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.”

8.  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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Paragraph 14-12c specifies that Soldiers are subject to discharge for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Manual for Courts Martial.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

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 was discharged under honorable conditions for misconduct of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, on 8 June 2006.

3.  Item 18 of the applicant’s DD Form 214 shows the entry “CONTINUOUS HONORABLE ACTIVE SERVICE 20020206-20040621”; 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 22 June 2004 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)                                         AR20080012909



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ABCMR Record of Proceedings (cont)                                         AR20080012909



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