IN THE CASE OF:	  

		BOARD DATE:	        15 OCTOBER 2008

		DOCKET NUMBER:  AR20080012971 


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 reconsideration of his request to correct his discharge document to show he contributed to the Montgomery G.I. Bill (MGIB).

2.  The applicant has also broadened his initial issue to include a request for a change in his narrative reason for discharge in order to be eligible for the MGIB. In his initial application the applicant eluded to the issue of a change in narrative reason for discharge, but he did not fully develop it as an issue for consideration by the Board.

3.  The applicant states, in effect, that he possesses his Leave and Earnings Statements (LESs) showing that he made the full contribution to the MGIB, and that he was not confusing the VEAP (Veterans' Educational Assistance Program) with the MGIB.  He also contends that he was not discharged for his own convenience but because he sustained a back injury which led to his local bar to reenlistment and his early separation.  He wants to change his narrative reason for discharge to a reason that would authorize him entitlement to the MGIB in accordance with Department of Veterans Affairs (DVA) policies.

4.  The applicant provides copies of his LESs showing his contributions to the MGIB; copies of DD Forms 689 (Individual Sick Slips); a copy of his Army Physical Fitness Test (APFT) Scorecard; and a copy of a waiver request for run portion of the APFT due to his back problem and hypertension.  



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070007720, on 6 November 2007.

2.  The applicant served in the Regular Army from 15 September 1986 through
4 January 1988, for a period of 1 year, 3 months, and 20 days.  The evidence of record shows that a local bar to reenlistment was imposed against the applicant. He voluntarily requested early separation under the provisions of Army Regulation 635-200, chapter 16-5, because he believed he could not overcome the bar to reenlistment.  In making his choice, the applicant's request stated:  "I understand that if my request for separation before my normal ETS [Expiration Term of Service] is approved, it will be for my own convenience (emphasis added)."

3.  Based upon his voluntary request, the unit commander initiated separation action.  The reasons for the separation action cited by the unit commander were that the applicant was flagged based on a bar to reenlistment that was imposed for apathy.  His official record shows he received a summarized Article 15 for assaulting another Soldier, and a Article 15 for disrespect to a noncommissioned officer.  

4.  The applicant's military service records contain a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of
4 January 1988.  Item 15 (Member Contributed to Post-Vietnam Era Veterans’ Educational Assistance Program) (VEAP) of the DD Form 214 contains an “X” in the “No” block.  The DD Form 214 shows that he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-5b, on the basis of a locally imposed bar to reenlist.  The DD Form 214 also shows he completed 1 year, 3 months, and 20 days net active service during the period under review. In addition, Item 21 (Signature of Member Being Separated) shows that the applicant placed his signature on the document.

5.  The applicant's military service records contain a SF 93 (Report of Medical History), dated 7 October 1987, which was completed by the applicant at the time of his medical examination prior to his separation.  In response to Item 11 (Have You Ever Had or Have You Now), the applicant placed an “X” in the “Yes” column indicating “Recurrent back pain.”

6.  The applicant's military service records contain a Standard Form (SF) 88 (Report of Medical Examination), dated 7 October 1987, which was completed for the purpose of his separation from the Army under the provisions of Army Regulation 635-200, Chapter 16.  Item 77 (Examinee) of the SF 88 contains an "X" in the box indicating “Is Qualified For” and the medical doctor entered “Separation.”  This document is also signed by the captain serving as the physician who examined the applicant.

7.  The applicant provided copies of his LESs showing that he paid into his MGIB for a period of 12 months.  This is new evidence which was not considered in the Board's previous decision.

8.  The applicant provided copies of sick slips showing he received treatment for a pulled muscle in his back and hypertension.  On 27 February 1987, the examiner noted that his back pain was purely muscular and medication had been given to him.  He would benefit from more stretching and remedial PT to aid in his training effort.  A 21 August 1987 note indicates that a PT walk, bicycle, or swim could be substituted for a period of 4 weeks.  His APFT scorecard shows he failed the run portion of the AFPT on 18 February 1987 and 26 February 1987.  This is new evidence which was not considered in the Board's previous decision.

9.  The VEAP was an educational incentive program offered to individuals who enlisted between 1 January 1977 and 30 June 1985.  The program was designed for the post-Vietnam Era Soldier as a means of establishing a fund to support their educational objectives following their military service.  For every dollar contributed by a Soldier, the government matched with a two dollar contribution to the individual's VEAP account.  Participation in the VEAP was a voluntary option and was replaced, in July 1985, by the MGIB and the Army College Fund (ACF) Program.

10.  Title 38, United States Code, Chapter 30, 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 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 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.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 15 (Member Contributed to Post-Vietnam Era Veterans’ Educational Assistance Program) specify, in pertinent part, if the Soldier contributed to 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.”  The instructions for Item 21 (Signature of Member Being Separated) states, in pertinent part, that the signature indicates the Soldier has reviewed the form and accepts the information as being correct to the best of their knowledge.  

13.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he contributed to the MGIB and this should be reflected on his DD Form 214.  As he was advised in the Board's previous decision, the DD Form 214 in use at the time of his discharge was not designed to show an individual's contributions to the MGIB.  The question asked in Item 15 of his DD Form 214 is whether he contributed to the VEAP and the correct answer is no; he contributed to the MGIB as shown on his LESs.  

2.  The applicant's reason for discharge is fully supported in the official record.  He voluntarily requested discharge prior to his ETS because he believed he could not overcome the bar to reenlistment.  Nothing prohibited him from serving until his ETS even with a local bar to reenlistment in place, and thereby, becoming fully eligible for the MGIB.  He forfeited his entitlement to the MBIG when he voluntarily requested discharge for his own convenience and failed to complete his initial enlistment.  

3.  The medical evidence submitted by the applicant does not show that he was found unfit due to any medical condition or that he could not perform the duties and functions of his primary military occupational specialty.  He was not referred by his command for medical processing and he was found medically qualified for separation.

4.  Given the above, there is no basis upon which to change the Board's prior decision.  In addition, there is no basis upon which to change the applicant's narrative reason to entitle him to receipt of the MGIB.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070007720, dated 6 November 2007, or to change his narrative reason for discharge.




      _______ XXX _______   ___
               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)                                         AR20080012971





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