IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013750 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) by amending item 15a (Member Contributed to Post-Vietnam Era Veterans Educational Assistance Program (VEAP)) to show "Yes" and item 28 (Narrative Reason for Separation) to show “medical discharge” instead of “disability, severance pay.”

2.  He states his DD Form 214 needs to show he received a medical discharge in lieu of disability with severance pay in order to receive his full education benefits under the Montgomery GI Bill (MGIB) Act of 1984.  He adds that he paid the full amount of $1200.00 into the MGIB, but is not able to receive his full benefits because item 15a does not show he contributed to the fund, and item 28 does not show he received a medical discharge. 

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.  His record shows he enlisted in the Regular Army on 20 February 2003 for 
4 years.  

3.  On 25 February 2003, he completed and authenticated a DD Form 2366 (Montgomery GI Bill (MGIB) Act of 1984).  This document shows he acknowledged that his basic pay would be reduced $100 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.  He acknowledged he must complete 36 months of active duty service before he was entitled to the current rate of monthly benefits for a period of 36 months.  He also acknowledged that he must receive an honorable discharge for service establishing entitlement to the MGIB.

4.  On 18 December 2003, during the period of his transition processing, the applicant and a Transition Counselor completed a DD Form 2648 (Pre-Separation Counseling Checklist).  Item 18 (Education/Training) of this document shows he indicated he desired counseling on the MGIB education benefits.

5.  He was reassigned from his unit to the U.S. Army Transition Center, Schofield Barracks, HI, in accordance with Orders 084-0003, Headquarters, Troop Command, Military Personnel Division, dated 24 March 2004, with a reporting date of 19 April 2004.

6.  The additional Instructions in the order states, in part:

"a. You are authorized disability severance pay in the pay grade private first class/E-3.  b. Percentage of disability – 10%.  c. Your scheduled separation date is:  20 April 2004.  d. Disability is based on injury or disease received in LOD [line of duty] as a Result of Armed Conflict or cause by an instrumentality of war and incurred in the LOD during war period as defined by law:  No.  e. Disability resulted from combat related injury as defined in 26 U.S. Code 104:  No."

7.  His DD Form 214 shows he was honorably discharged on 20 April 2004, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3), for disability with severance pay.  He had served 1 year, 2 months, and 1 day of total active service.  Item 15a of his DD Form 214 is checked "No" and item 18 (Remarks) shows he was assigned a 10% disability rating and was paid $2814.00 in disability severance pay.  This item also shows he had not completed his first full term of service at the time of his separation. 

8.  Army Regulation 635-5 (Separation Documents), currently in effect, provides in paragraph 2-4 (Completing the DD Form 214) that for any Soldier who enlisted after 1985 the entry in item 15 is "No."

9.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

10.  Chapter 4 of the Department of Veterans Affairs (VA), Veterans Benefits Manual prescribes the education and training benefits of veterans and their family members.  It states veterans who did not complete the required period of service may be eligible for entitlements under category 1 if discharged for a service-connected disability.

11.  This manual also states that active duty personnel could participate in VEAP if they entered active duty for the first time after 31 December 1976 and before 
1 July 1985 and made a contribution prior to 1 April 1987.

12.  Category 1 of the New MGIB was for veterans who entered active duty for the first time after 30 June 1985, did not decline MGIB in writing, and had their military pay reduced by $100 for a 12 month period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he elected to participate in the MGIB and paid $1,200 during his first 12 months of active service.  In addition, he acknowledged he must complete 36 months of active duty service before he was entitled to the current rate of monthly benefits for a period of 36 months.  He also acknowledged that he must receive an honorable discharge for service establishing entitlement to the MGIB.  

2.  Item 15a of the DD Form 214 refers to the VEAP that was in effect for those service members who enlisted after 31 December 1976 and before 1 July 1985.  He enlisted on 20 February 2003 and therefore, he could not have participated in the VEAP and the entry in item 15a of his DD Form 214 is correct.  Currently, there are no provisions to show a Soldier elected to participate in the MGIB on the DD Form 214.

3.  The evidence and his DD Form 214 show he was honorably discharged for disability (i.e., a medical discharge), with severance pay, which shows he was discharged with a service-connected disability.  

4.  The VA operates under its own policies and procedures and the Army has no jurisdiction over the VA.  He should seek further guidance from a qualified VA, Education Benefits counselor, who will be able to give him further guidance on his full VA education entitlements.

5.  As a result, there is no reason to change item 15a or item 28 of his DD Form 214. 

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)                                         AR20110013750





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ABCMR Record of Proceedings (cont)                                         AR20110013750



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