IN THE CASE OF:
BOARD DATE: 7 October 2010
DOCKET NUMBER: AR20100010542
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 correction of item 15a (Member Contributed to Post-Vietnam Era Veteran's Education Assistance Program (VEAP)) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 March 2005 to show "Yes" instead of "No" which will allow him to use his Montgomery GI Bill (MGIB).
2. He states his claim for his MGIB benefits was denied and he thinks the error on his DD Form 214 could be the reason. He paid $100.00 every month while he was in the service.
3. He provides a copy of his DD Form 214.
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 10 February 2001. Paragraph 5 of his DA Form 3286-67 (Statement of Understanding), dated 10 February 2001, shows he placed his initials in the "Yes" block indicating he enlisted for the following educational incentive programs: the MGIB and the Army College Fund.
3. He enlisted in the Regular Army (RA) on 6 July 2001 for 4 years. He completed a DD Form 2366 (MGIB) on 10 July 2001 for participation in the MGIB Act of 1984.
4. He was discharged on 2 March 2005 for misconduct with a general discharge.
He was credited with completing 3 years, 7 months, and 27 days of net active service. He was issued a DD Form 214 that shows the "No" block is marked in item 15a. Item 18 (Remarks) shows he had not completed his first full term of service).
5. Army Regulation 635-5 (Separation Documents), then in effect, 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. The regulation specified that if a Soldier contributed to the VEAP and did not get money back, the "Yes" block would be marked. For those who enlisted before 1984, contributed to the VEAP, and received their money back, the "No" block would be marked. For any Soldier who enlisted after 1985, the "No" bock will be marked.
6. 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 and 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. An exception to completing the first qualifying term of enlistment is when the Soldier was discharged or released from active duty for a service-connected disability, for a medical condition which 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.
7. Army Regulation 621-202 also specifies that 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 2 March 2005 should be marked.
2. The evidence shows he enlisted in the RA for 4 years on 6 July 2001. He was discharged on 2 March 2005 for misconduct with a general discharge. In accordance with regulatory guidance the "No" block would be marked in item 15a of the DD Form 214 for individuals who enlisted after 1985. Therefore, item 15a of his DD Form 214 is appropriately marked "No."
3. Pertinent regulations specify that Soldiers who do not complete the qualifying term of service and who do not qualify as an exception have no educational benefits.
4. 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) AR20100010542
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ABCMR Record of Proceedings (cont) AR20100010542
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