BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013607 


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 he is eligible for the Selected Reserve Montgomery G.I. Bill (MGIB) under chapter 1606 of Title 10, U.S. Code (USC), and the Reserve Education Assistance Program (REAP) under chapter 1607 of Title 10, USC.

2.  The applicant states that his unit commander at the 414th Civil Affairs (CA) Battalion gave him an unsatisfactory participation for a drill weekend without trying to contact him.  He adds that what his commander did not know at the time was that he, the applicant, was undergoing medical treatment and/or disability processing.  His commander agreed that he had made an error and told him he would fix it.  He also states the following:

	a.  After returning from deployment in December 2003 and being released from active duty to his U.S. Army Reserve (USAR) unit in Utica, NY, in March 2004, he was found to have ulcerative colitis which ultimately led to a 30-percent service-connected disability rating by the Department of Veterans Affairs (DVA).  When he approached his unit in 2006 with this information, the unit sent him to Fort Drum, NY, to see a military doctor.  He was found non-deployable.  He informed his unit of this finding and was told he would be medically discharged.  He then moved to NC in July 2006 with the impression that his unit administrator would take care of his paperwork.  However, his unit did not follow through with the paperwork and he was unable to contact the unit or obtain accurate information. 

	b.  As he was unable to contact anyone, he decided to go to school in NC and pursue higher learning.  He was receiving MGIB benefits with no problems until he received a letter from his immediate commander in December 2007 informing him that he was being reported as an unsatisfactory participant.  At the same time, he received a letter informing him that his MGIB and REAP benefits were suspended.

	c.  His company commander promised that he would fix the problem if and when he (the applicant) made up one drill weekend.  He did so by drilling with a unit in NC, but his benefits did not start back.  His unit then placed him in the Individual Ready Reserve (IRR) a year later, and honorably discharged him on his expiration term of service date.  

3.  The applicant provides a self-authored supplementary letter; a DVA rating decision, undated; his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 March 2004; a 414th Civil Affairs Battalion, memorandum, dated 3 December 2007, Subject: Letter of Instructions-Unexcused Absence; a DVA letter, dated 20 December 2007, regarding REAP; a DA Form 4856 (Developmental Counseling Form), dated 17 December 2008; a DA Form 1380 (Record of Individual Performance of Reserve Duty Training), dated 9 February 2008; a Leave and Earnings Statement (LES), issued in November 2007; and copies of various emails and/or correspondence regarding his servicemember's group life insurance (SGLI), in support of his request.

4.  On 5 January 2010, the applicant submitted a copy of Orders 055-007, issued by the Albany Military Entrance Processing Station, Albany, NY, on 19 March 2001, and a copy of Orders 08-023-00027, issued by Headquarters, Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, on 23 January 2008. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s records show he enlisted in the USAR for a period of 8 years on 19 March 2001.  His DA Form 5435-R (Statement of Understanding-The Selected Reserve Montgomery GI Bill), Section III (Qualifications) provides in pertinent part that:  Effective 1 July 1985, the Selected Reserve Montgomery GI Bill prescribed by AR 135-7 [Incentive Programs], chapter 8, and codified in law (Title 10, USC, Chapter 1606) provides financial assistance for the pursuit of educational programs approved by the DVA to qualified officers, warrant officers, and enlisted Soldiers serving in the Selected Reserve.  To qualify for entitlement under the Selected Reserve MGIB, I understand that on or after 1 July 1985, a Soldier must, in pertinent part: 

	a.  Contract to serve at least 6 years in the Selected Reserve by enlisting, reenlisting, or extending an enlistment or reenlistment in the Army National Guard (ARNG) or the USAR with concurrent assignment to the Selected Reserve.  

	b.  Not be an unsatisfactory participant.

2.  Section VII (Termination of Entitlement) of this form states, in pertinent part, that the incentive will be terminated should he become an unsatisfactory participant per Army Regulation 135-191 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), if he fails to meet qualification for membership in the Selected Reserve under law and regulation to include medical unfitness, or if he is not assigned, at the time of transfer or discharge, to an authorized position in the Selected Reserve which qualified him for basic pay or compensation for inactive duty training.  The termination of the incentive is effective on the date of suspension.

3.  The applicant's records further show he entered active duty for training (ADT) on 16 October 2001, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 38A (Civil Affairs Specialist).  He was released from ADT to the control of his USAR unit on 14 March 2002.  He was assigned to a Troop Program Unit (TPU), the 402nd CA Battalion, Tonawanda, NY.

4.  On 14 February 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom and subsequently served in Kuwait/Iraq from 29 Mach to 28 December 2003.  He was honorably released from active duty to the control of his USAR unit on 30 March 2004. 

5.  The applicant's records also show he was promoted to sergeant (SGT)/E-5 on 11 March 2004 and he performed duties as a CA SGT from 1 March through 
31 December 2004 with the 414th CA Battalion, Utica, NY.

6.  The applicant’s retirement points detail statement shows he did not perform any drills during the period 5 December 2005 to 8 February 2008.  His records contain a memorandum, dated 22 February 2007, originating from his unit commander at the 414th CA Battalion, Southfield, MI, to the Commander, 354th CA Brigade, Riverdale, MD, requesting that the period from 30 March 2004 through 29 March 2007 be counted as non-rated time due to the applicant's non-participation with the unit.


7.  On 3 December 2007, by memorandum, the applicant's immediate commander at the 414th CA Battalion notified the applicant that he had been absent from scheduled unit training assemblies (UTA's) or multiple unit training assemblies (MUTA's) on 1 and 2 December 2007.  The memorandum also stated that unless his absences were excused, he would have accrued 14 unexcused absences within a 1-year period.  The commander also notified the applicant that an accumulation of nine (9) unexcused absences within 1 year would declare him an unsatisfactory participant and would result in processing him for separation from the Selected Reserve either by reassignment or discharge and that a separation could result in a termination of educational assistance programs, loan repayment, or other scholarships.

8.  On 17 December 2008, by letter, the DVA notified the applicant that his claim for education benefits under the REAP (chapter 1607, Title 10, USC) was denied. Eligibility for this program is determined by the Reserve Component (RC) and the denial was based on information provided that indicated his eligibility had been suspended.  Benefits could not be paid until his eligibility had been resumed.  

9.  On 17 December 2008, the applicant's battalion commander counseled the applicant regarding rescheduling training (RST) of battle assemblies (BA's) in NC instead of MI.  He indicated the following:

	a.  The applicant had moved to NC in 2006 and no longer communicated with his unit about performing RST for BA.  He was also trying to apply for service-connected disability through the DVA since 2006.  

	b.  The 414th CA Battalion started action to transfer the applicant to the IRR in early 2007 and the unit was coding his attendance as a pending loss (code Z instead of an unsatisfactory participant (code U).

	c.  In November 2007, the higher headquarters indicated that the applicant did not qualify for a transfer to the IRR and recommended coding him as an unsatisfactory participant as a plan of action to get him off the books.  

	d.  The 414th CA Battalion started coding him as an unsatisfactory participant.  The applicant contacted the unit as soon as he received the first unsatisfactory participant letter in December 2007 and after his MGIB benefits were denied due to being an unsatisfactory participant.

	e.  the applicant and his immediate commander worked out a plan to RST for the applicant until his transfer to the IRR became effective.  The immediate 

commander would also change the December 2007 codes from unsatisfactory to satisfactory which would probably restore his educational benefits.

10.  On 23 January 2008, Headquarters, Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, issued Orders 08-023-00027, directing the applicant's reassignment from his TPU (the 414th CA Battalion) to the USAR Control Group (Reinforcement), effective 15 February 2008. 

11.  On 9 February 2008, the applicant submitted a DA Form 1380 to his company commander that indicates he performed RST drills with the 2125th Garrison Support Unit (GSU) on 9 and 10 February 2008.

12.  On 24 March 2008, the U.S. Army Human Resources Command (USAHRC)- St. Louis, published Orders D-03-906111, directing the applicant's honorable discharge from the USAR effective 24 March 2009.

13.  On 26 February 2009, by letter addressed to the applicant's Member of Congress, an official at USAHRC-St. Louis stated that:

	a.  Eligibility for Selected Reserve MGIB is based on the first time a Soldier commits to serve 6 years with the Selected Reserve after 30 June 1985.  Eligibility also requires the Soldier to continue to serve in the Selected Reserve.  If there is a break in the Selected Reserve service for 1 year or more, eligibility would be terminated.  

	b.  Eligibility for REAP is based on a member of the RC who served on active duty on or after 11 September 2001 for at least 90 consecutive days under a contingency operation.  If there is a break in Selective Reserve service eligibility would be suspended until the member affiliates with a unit of the Selected Reserve.

	c.  A review of the applicant's records indicates he transferred to the IRR on 15 February 2008.  His Selected Reserve MGIB benefits were terminated due to him being assigned to the IRR for 1 year or more.  His REAP benefits were suspended as well.  If the applicant chooses to affiliate with a unit in the Selective Reserve, he will regain eligibility for REAP.

14.  The Selected Reserve MGIB provides educational assistance for all qualifying Selected Reserve (TPU and Individual Mobilization Augmentation) members.  It was enacted by Congress on 1 July 1985 to attract high-quality men and women into the reserve branch of the Armed Forces.  To be eligible, 

Selected Reserve members must execute a contractual agreement to serve 6 years in the Selected Reserve, must have a high school diploma or equivalency, complete initial active duty for training, remain in good standing, and satisfactorily participate in training.

15.  Department of Defense Instruction 1322.17 implements the policies and procedures for management of education benefits under the Selected Reserve MGIB.  It states that entitlement to educational assistance is suspended on the date the Soldier is granted an authorized period of absence and transfers to     the IRR (Annual Training or Reinforcement) or the Inactive National Guard.  Authorized periods of absence shall not exceed one 3-year period for a missionary obligation or one period not to exceed 1 year for all other circumstances.  Suspended entitlement to education assistance shall be restored when the Soldier reaffiliates in the Selected Reserve before the expiration of an authorized period of absence provided the Soldier commits to serve in the Selected Reserve for a period that, with time already served for entitlement of the Soldier to the selected Reserve MGIB benefits, shall equal 6 years.

16.  The Department of Defense Instruction also states that a member entitled to Selected Reserve MGIB must be advised of their entitlement to benefits and issued a Department of Defense Form 2384-1 (Notice of Basic Eligibility) within 30 days of attaining entitlement.  The form becomes a permanent part of the Official Military Personnel Record.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board is limited; however, the documents that are available show the applicant initially entered military service as a member of the USAR on 19 March 2001, thereby acquiring an 8-year statutory service obligation.

2.  The applicant's records show he entered ADT on or about 3 October 2001, completed basic combat and advanced individual training, and was released from ADT to the control of his USAR unit on 14 March 2002.  He then entered active duty on 14 February 2003 and subsequently served in Kuwait/Iraq from 29 March to 28 December 2003.  He was honorably released from active duty to the control of his USAR unit on 30 March 2004. 

3.  There is evidence to show the applicant did not perform any drills during the period 5 December 2005 to 8 February 2008.  Therefore, it appears the memorandum addressed to his higher commander requesting the period from 

March 2004 through March 2007 be counted as non-rated time due to the applicant's non-participation with the unit contains an administrative error as to the dates.  Nevertheless, the evidence indicates the applicant did not perform drills for over 2 years.

4.  In December 2007, the applicant's commander notified the applicant that he had been absent from scheduled UTA's/MUTA's and that unless his absences were excused, he would have accrued 14 unexcused absences within a 1-year period.  The immediate commander then worked out a plan where the applicant would resume training at a different location.  The applicant did so for that one drill.

5.  The evidence of record shows that the applicant was released from his TPU unit on 15 February 2008 and was transferred to the USAR Control Group (Reinforcement).   Furthermore, given that he was discharged from the USAR Control Group (Reinforcement) on 24 March 2008, he clearly had 1 year or more in the IRR.  Accordingly, his Selected Reserve MGIB benefits were terminated and his REAP benefits were suspended due to him being assigned to the IRR for 1 year or more. 

6.  In the absence of additional documentary evidence that show the applicant fulfilled his contractual obligation, including documentary evidence that he performed drills from December 2005 to February 2008 or evidence that he was affiliated with another TPU, it is presumed the applicant did not fulfill his contractual obligation and as such he is disqualified from receiving further Selected Reserve MGIB or REAP benefits.  

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)                                         AR20090013607



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ABCMR Record of Proceedings (cont)                                         AR20090013607



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