IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100007428 


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, that the “Yes” block in Item 15a (Member Contributed to Post-Vietnam Era Veteran’s Educations Assistance Program (VEAP)) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 October 2002 be checked instead of the “No” block which will allow him to use his Montgomery GI Bill (MGIB).

2.  The applicant states, in effect, due to this clerical error on his DD Form 214 he was denied use of his MGIB benefits.

3.  The applicant provides copies of his 1991 and 2002 DD Forms 214 and a change of name court order and memorandum.

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's military records show he enlisted in the Delayed Entry Program on 19 February 1987.  He enlisted in the Regular Army (RA) on 22 July 1987.  He completed training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was released from active duty, in pay grade E-4, on 19 July 1991, at the expiration of his term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He was credited with completing 3 years, 11 months, and 28 days of net active service.

3.  He was issued a DD Form 214 that shows the “Yes” block is marked in Item 15a.  

4.  Paragraph 5 of his DA Form 3286-67 (Statement of Understanding), dated 16 September 1996, shows he placed his initials in the “No” block indicating he did not enlist for the following Educational Incentive Programs:  the MGIB, the Army College Fund, and the Loan Repayment Program.  He annotated his signature in the appropriate block authenticating the form.  His records do not contain a DD Form 2366 (MGIB Act of 1984).

5.  He again enlisted in the RA, in pay grade E-3, on 31 October 1996, for 6 years.  He completed training and was awarded MOS 67R (AH-64 Attack Helicopter Repairman).  He was honorably discharged from active duty, in pay grade E-5, on 30 October 2002, for completion of required active service.  He was credited with completing 3 years, 11 months, and 28 days of net active service.

6.  He was issued a DD Form 214 that shows the “No” block is marked in Item 15a.  His records contain a DD Form 2648 (PreSeparation Counseling Checklist) showing he was referred to a toll-free telephone number for information on MGIB benefits.  

7.  Army Regulation 635-5 (Separation Documents), dated 1 August 1981, governed the preparation of the DD Form 214.  It stated the DD Form 214 was a summary of a Soldier's most recent period of continuous service.  It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The regulation in effect at the time of the applicant’s 1991 release from active duty specified yes or no as provided by the individual would be entered in Item 15a.

8.  Army Regulation 635-5, current edition, specifies if a Soldier contributed to the VEAP and did not get money back, the “Yes” block will be marked.  For those 
who enlisted before 1984, contributed to the VEAP, and received their money back, the “No” block will be marked.  For any Soldier who enlisted after 1985, the “No” bock will be marked.

9.  Army Regulation 621-202 (Army Educational Incentives and Entitlements) Chapter 2, specifies that Soldiers who entered active duty for the first time after 30 June 1985, served 3 or more years of continuous active duty if the initial obligated period of service was 3 or more years, and completed a qualifying term of enlistment are qualified for the MGIB.  Exceptions to completing the first qualifying terms of enlistment are as follows:  (1) the Soldier had been discharged or released from active duty for a service-connected disability, for a medical condition which pre-existed prior to active duty, or for hardship.  Soldiers who do not complete the qualifying term of service and who do not qualify as an exception have no education benefits.

10.  Army Regulation 621-202, also specifies usually eligibility extends 10 years from the date of last discharge or release from active duty.  Veterans and Soldiers may receive an extension of the eligibility period if a physical or mental disability prevents veterans and Soldiers from initiating or completing their chosen program or education.  The program is administered by the Department of Veterans Affairs (VA) after the Soldier is separated from active duty.  Applicants may apply to the nearest VA Regional Office for extensions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the “Yes” block in Item 15a of his DD Form 214 for the period ending 30 October 2002 should be marked.  

2.  The evidence shows the applicant served in a RA status from 22 July 1989 through 19 July 1991 and again from 31 October 1996 until he was honorably discharged on 30 October 2002.  In accordance with regulatory guidance the “No” block will be marked in Item 15a of the DD Form 214 of individuals who enlisted after 1985.  Therefore, Item 15a of the applicant's 30 October 2002 is appropriately marked "NO."  

3.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100007428



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ABCMR Record of Proceedings (cont)                                         AR20100007428



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