IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013161 


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, the daughter of a former service member (FSM), by Power of Attorney, requests, in effect, correction of her father's discharge.  She also requests reinstatement of her father's Army College Fund (ACF).

2.  The applicant states she believes her father was not in the right state of mind at the time of his discharge.  He was wrongfully discharged and cheated out of his college fund.  She also contends she was not aware that her father was wrongfully discharged until her grandfather became her father’s legal guardian.

3.  The applicant provides the following:

* A notarized Power of Attorney giving her authorization over all military interests concerning her father, the FSM
* A copy of her Birth Certificate
* A copy of a memorandum for the Army Discharge Review Board (ADRB), dated 12 August 1988

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 FSM’s DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the U. S. Army Reserve (USAR) on       20 June 1985 for a period of 8 years under the Delayed Entry Program (DEP).  He was discharged from the USAR DEP on 17 September 1985 and he enlisted in the Regular Army on 18 September 1985 for a period of 4 years.  He completed the required training and he was awarded military occupational specialty (MOS) 31C (single channel radio operator).

3.  Item F (Discharge from DEP/Enlistment Program) of his DD Form 4 shows the following statement, “No changes have been made to my enlistment options OR if changes were made they are recorded on Annex(es) B, C, D which replace(s) Annex(es) A.”

4.  An excerpt from his DA Form 3286-40 (Annex A) (Statements for Enlistment – Delayed Entry Program), dated 20 June 1985 shows the following statement:  

	“I UNDERSTAND THAT IF I ENTER ACTIVE DUTY AFTER 30 JUNE 1985 I WILL NOT BE ELIGIBLE FOR THE VETERANS’ EDUCATIONAL ASSISTANCE PROGRAM (VEAP) OR THE ARMY COLLEGE FUND, BUT THAT I WILL BE ELIGIBLE TO ENROLL IN A SIMILAR PROGRAM.  SHOULD I ELECT TO PARTICIPATE, IN RETURN FOR MY INDIVIDUAL CONTRIBUTION (NON-REFUNDABLE) OF $1,200.00 OR $100.00 PER MONTH FOR MY INITIAL 12 MONTHS, I WILL RECEIVE UP TO $_____ PER MONTH FOR 36 MONTHS, A TOTAL ENTITLEMENT OF UP TO $______ FOR A ______YEAR ENLISTMENT.  I WILL BE INFORMED OF THE BENEFITS AND REQUIREMENTS OF THE NEW PROGRAM IN MORE DETAIL BEFORE I ENTER ACTIVE DUTY.”

5.  The same form shows he authenticated the document on 20 June 1985 indicating he viewed/read and understood the description for MOS 31C, and the description contained in Annexes B and C for the Army College Fund.  


6.  Item 1d shows the FSM volunteered to serve on active duty for 4 years in any job specified by the Army.  Item 1e shows, in pertinent part, in lieu of performing the active duty specified in 1d, he may enlist in the Regular Army for not less than 2 years with the following understanding:

* Option 9-3 - U.S. Army Training of Choice Enlistment Option
* Option 9-17 - U.S. Army Cash Bonus Enlistment Option
* Option 9-28 - Army College Fund

7.  His records contain a DA Form 3286-3 (Annex B) (Statements for Enlistment - U.S. Army Training of Choice Enlistment Option).  This document assured him that, provided he met the required prerequisites, he would receive the training of his choice in MOS 31C.  His term of enlistment indicated 4 years. 

8.  His records contain a DA Form 3286-17 (Annex C) (Statements for Enlistment - U.S. Army Cash Bonus Enlistment Option) which showed that upon completion of basic combat and advanced individual training for MOS 31C, he would be paid an enlistment bonus of $4,000.00.  His term of enlistment indicated 4 years. 

9.  The FSM's records are void of documentation showing he received the ACF option. 

10.  The FSM’s record contains a copy of a “VOIDED” DD Form 214 which shows he was discharged on 12 August 1988 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 9, by reason of alcohol abuse - rehabilitative failure.  Item 21 (Signature of Member Being Separated) shows he signed this form.  Item 24 (Character of Service) shows the entry "Under Honorable Conditions."  He served 2 years, 10 months, and 25 days of total active service, which equates to 34 months and 25 days (emphasis added) of net active service.

11.  Item 15a (Member Contributed to Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP)) of the FSM’s DD Form 214 indicates that he did not make any contributions to this particular program.

12.  The applicant provided a copy of a memorandum, dated 12 August 1988.  This document was addressed to the ADRB from a military attorney with the U.S. Army Trial Defense Service, Region IX on behalf of the FSM.  It requested upgrade of the FSM's under honorable conditions discharge to an Honorable Discharge.  The request noted that the brigade legal clerk was informed that pursuant to a discharge under the provisions of Army 


Regulation 635-200, chapter 9, only an honorable discharge could be given when the government introduces into the final discharge process limited-use evidence as in the FSM's case when he came up positive on a rehabilitation urinalysis test. 

13.  The memorandum also stated that the FSM contacted Trial Defense Services and informed them of the command’s decision to give him an under honorable conditions discharge, his desire to leave the Army, and the waiver of his rights to seek counsel on the non-judicial punishment (NJP) which was imposed against him on 30 June 1988 for the wrongful use of marijuana.

14.  The FSM’s military records contain a copy of decision letter from the ADRB Branch, U.S. Army Reserve Personnel Center, St. Louis, MO, dated 6 April 1993. This letter stated, in pertinent part, that the Secretary of the Army directed the FSM be informed that his discharge had been changed to "HONORABLE."  New separation documents had been prepared and were enclosed.  He was advised to enter his signature in item 21.

15.  This letter also informed the FSM to apply to the Chief, Centralization Pay Operations, U.S. Army Finance and Accounting Center, Indianapolis, IN, for any monetary benefits to which he may be entitled by virtue of the change in his discharge.

16.  His records contain a copy of a new DD Form 214 which amended the following entries to read:

* Item 21 - Member Unavailable for Signature
* Item 24 - Honorable

17.  Under Department of Veterans Affairs (DVA) regulations, service members must serve at least 20 months of a service obligation of less than 3 years, or 30 months of a service obligation of 3 years or longer to be eligible to qualify for the MGIB.  There are only four exceptions:

	a.  a discharge for a service-connected disability;

	b.  a hardship discharge;

	c.  a discharge for a pre-existing medical condition; or

	d.  an involuntary separation due to reduction in force.

In all cases, the Soldier’s service must be considered fully honorable.

18.  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 Veteran's Educational Assistance Act of 1984 (New GI Bill) and the ACF Program.

19.  Title 38, U.S Code, chapter 30, established eligibility requirements for participation in the 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 $100.00 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 $300.00 per month for 36 months, for individuals who completed at least 3 years of active service.

20.  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 Record Brief (ERB), separation approval authority documentation or order, or any other document authorized for filing in the Official Military Personnel File (OMPF).

21.  Army Regulation 635-5, paragraph 2-4 (Completing the DD Form 214), contains item-by-item instructions for completing the DD Form 214.  The instructions for item 15a (Member Contributed to Post-Vietnam Era Veteran’s 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, her father’s DD Form 214 should be corrected to upgrade his under honorable conditions discharge to an honorable discharge.  She also requests restoration of full educational benefits as a result of this upgrade.

2.  The evidence of record shows the FSM’s DD Form 214, which was issued to him upon his separation on 12 August 1988, was voided pursuant to his petition to the ADRB.  In accordance with the Secretary of the Army directive, the ADRB upgraded the FSM's discharge to an honorable discharge based on the introduction of limited-use evidence during his discharge processing.  However, the authority and reason for separation remained unchanged.  On 16 April 1993, a new DD Form 214 was issued reflecting an honorable character of service.

3.  The new DD Form 214 is the official document of record.  In accordance with regulatory guidance, the applicable copies of this document have been provided to each service organization, including the DVA.  By virtue of the fact that the FSM’s discharge has already been upgraded, there appears to be no effective relief for this portion of the request.  However, a copy of the previously issued new DD Form 214 will be furnished with these Proceedings.

4.  The DVA is the sole proponent for tracking enrollment and contribution to the new GI Bill (i.e., the MGIB).  The eligibility for education benefits does not fall within the purview of the ABCMR.  The applicant must visit the nearest DVA regional office to discuss her concerns pertaining to the educational benefits of her father.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100013161



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ABCMR Record of Proceedings (cont)                                         AR20100013161



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