IN THE CASE OF:	  

		BOARD DATE:	    2 September 2010

		DOCKET NUMBER:  AR20100006974 


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 entitlement to the Montgomery GI Bill (MGIB) or that she be reimbursed for her MGIB participation cost ($1,200.00).

2.  The applicant states:

* per the Army representatives during her outprocessing, she was advised to enroll in the MGIB as she qualified with her involuntary discharge
* she paid the $1,200.00 participation cost and was denied benefits
* she checked with Army regulations and found she is eligible per Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 3-13 (MGIB)
* paragraph 3-13 states that if a service member is separated from the service for reasons other than those within an individual's control (that is, void, erroneous enlistment because of an administrative error, hardship, release from Presidential Call, demobilization, and so forth), the U.S. Army Recruiting Command (USAREC) or equivalent personnel in the Army National Guard (ARNG) will be contacted to determine MGIB and other incentive eligibility for those applicants
* the record shows she is not eligible for MGIB benefits due to inattention to the Army regulations
* several attempts to use the MGIB for college have been made
* on the first attempt the records office of education said there was no file or record of her payment of $1,200.00 to the Army for the MGIB enrollment
* later she was told she did not qualify as she elected in her contract to have the loan repayment plan
* when she requested a refund of her payment she was told she did not qualify for the MGIB and could not get a refund    

3.  The applicant provides no documentary evidence in support of her application. 

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 enlisted in the U.S. Army Reserve on 11 May 2001 under the Delayed Entry Program.  Her service personnel records contain a DD Form 2366 (MGIB Act of 1984) which shows that on 21 May 2001 she understood she was automatically enrolled in the MGIB unless she exercised the option to disenroll by signing item 4 (Statement of Disenrollment) by the date designated by her Service.  She also understood that unless she disenrolled from the MGIB, her basic pay would be reduced $100.00 per month or the current monthly rate for each of the first 12 full months of active duty and this basic pay reduction could not be refunded, suspended, or stopped.

3.  The applicant enlisted in the Regular Army on 21 May 2001 for a period of 5 years.  Her enlistment contract shows she enlisted for the Loan Repayment Program (LRP) and states, "I understand that I must DISENROLL from the GI Bill in order to qualify for this program.  DISENROLLMENT MUST BE ACCOMPLISHED at the time I enter active duty.  If I fail to complete the disenrollment portion of the DD Form 2366, I will not be eligible for the LRP and will become automatically enrolled in the GI Bill."  Her enlistment contract also shows she initialed the entry "NO" for the MGIB in the section "I have enlisted for the following Educational Incentive Programs."  

4.  On 21 May 2001, the applicant signed item 4 of the DD Form 2366 disenrolling from the MGIB.  This form states, in pertinent part, "I DO NOT desire to participate in the MGIB.  I understand that I WILL NOT be able to enroll at a later date."

5.  The applicant served as a network switching systems operator/maintainer and was honorably discharged on 11 April 2004 for parenthood.

6.  Paragraph 3-13 of Army Regulation 601-210 states that any prior-service applicant who entered active duty for the first time after 1 July 1985 in any Regular Component of the Armed Forces and who has not declined MGIB during his/her initial term of service is eligible to participate in the MGIB.  Guidance counselors will ensure that these applicants understand their eligibility for enrollment in MGIB and ensure these applicants initial in the appropriate column of DA Form 3286.  Paragraph 3-13c states that if a service member is separated from the service for reasons other than those within an individual's control (that is, void, erroneous enlistment because of an administrative error, hardship, release from Presidential Call, demobilization, and so forth), USAREC or equivalent personnel in the ARNG will be contacted to determine MGIB and other incentive eligibility for those applicants.

7.  Paragraph 2-7 of Army Regulation 621-202 (Army Educational Incentives and Entitlements) states that all eligible Soldiers are automatically enrolled in the MGIB unless they choose to disenroll.  The Defense Finance and Accounting Service will automatically reduce $100.00 from basic pay for the first full 12 months of all eligible active Soldiers unless the individuals choose to disenroll; the MGIB enrollment is irrevocable and monthly reductions are non-refundable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she was advised by Army representatives during her outprocessing to enroll in the MGIB as she qualified with her involuntary discharge was noted.  However, her records contain a DD Form 2366 which shows she signed item 4 disenrolling from the MGIB and she acknowledged that she understood she would not be able to enroll at a later date.

2.  Although the applicant contends she is eligible for MGIB benefits per Army Regulation 601-210, this regulation states that any prior-service applicant who entered active duty for the first time after 1 July 1985 in any Regular Component of the Armed Forces and who has not declined the MGIB during his/her initial term of service is eligible to participate in the MGIB.  The applicant declined the MGIB during her initial term of service.

3.  Since the preponderance of evidence of record in this case shows the applicant elected not to participate in the MGIB and the governing regulation states that monthly reductions are non-refundable, and since her enlistment contract advised her of that fact, there is no basis for granting the applicant's request.

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)                                         AR20100006974



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20