PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            23 June 1999
	DOCKET NUMBER:   AC98-08834/
                                              AR1998013791

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Juanita I. Williams		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be granted an adjustment of his service dates in order to restore Department of Veterans Affairs (VA) educational benefits which were denied him due to an unintentional oversight by the Board in a previous decision. 

3.  The applicant contends that it is directly due to the injustice of a faulty urinalysis that he is barred from receiving an education that he has earned through many years of often arduous service.  He states that upon his length of service retirement, he submitted an application to the VA for educational benefits, and his application was denied on the grounds that he was not on active duty during the period 30 June 1985 through 30 October 1986.  He states he was not on active duty during this period due to the initial wrong committed against him by the Army.  In the years following his return to active duty, he was never informed by any agent or agency of the government or by the Army that he would not be entitled to educational benefits from the VA. 
   
4.  In support of his application the applicant submits a copy of the VA’s decision denying his application for educational benefits and a copy of the VA “Statement of the Case” prepared in response to his appeal of the VA decision.  

5.  The applicant’s military records show that he had active service in the Army from 26 August 1971 through 20 August 1974, 19 August 1976 through 
18 August 1980, and 28 January 1982 through 26 August 1983.  (The latter separation date was later changed to 27 January 1985 pursuant to the approved recommendation of the Army Board for Correction of Military Records).  His records also show he subsequently served on active duty from 30 October 1986 through 31 October 1996, when he was retired for length of service in pay grade E-6.   

6.  On 22 January 1986 the Board considered a prior application from the applicant under the urinalysis records review program.  As a result, the applicant’s records were corrected, in part, by voiding his prior discharge of 
26 August 1983 and by showing that he continued to serve on active duty until 
27 January 1985, the date that would have been the normal expiration of his term of service (ETS).  The Board concluded at that time that it would not be appropriate or proper to extend the applicant on active duty beyond his normal ETS or to order him directly to active duty on the assumption that had he been able, he would have reenlisted at his normal ETS.  The Board observed that reenlistment requires acts on the part of both the applicant and the Army which could not merely be assumed.  However, the Board’s corrective action did include the removal of any impediments to the applicant’s reenlistment in the Regular Army in pay grade E-5, provided he was morally and physically qualified.  
7.  After all the preliminary administrative actions were taken by the Department to implement the Board’s approved action and to process the applicant for reenlistment, he reenlisted on 30 October 1986.  As a result, his military records show a break in active service from 28 January 1985 through 29 October 1986. This break in service is the basis for the VA’s denial of the applicant’s request for educational benefits.  

8.  The Veterans Educational Assistance Program (VEAP) was established and implemented on 1 January 1977, as a contributory education program designed to replace the Vietnam Era (pre-1977) GI Bill.  Any soldier entering service between 1 January 1977 and 30 June 1985 was eligible to participate in the program. 

9.  The Montgomery GI Bill (MGIB) replaced the VEAP and covers soldiers who entered military service after 30 June 1985.  The provisions of the MGIB are set forth in Title 38, U. S. Code, section 1411.  Soldiers entering military service after 30 June are automatically enrolled in the MGIB unless they specifically decline.  Those who are enrolled contribute $1,200.00, which is nonrefundable during their first 12 months of service.  After completion of their service, they are entitled to receive up to $300.00 per month in educational benefits for 36 months.  These benefits are administered by the VA.  

10.  The law governing the MGIB also provides that an individual establishes eligibility for the MGIB based on service on active duty if (1) the individual first becomes a member of the Armed Forces or enters on active duty after 30 June 1985, (2) serves at least 3 years of continuous active duty, and (3) after completing the service requirement, the individual must continue on active duty or be honorably discharged or placed on the retired list.   

11.  Public Law 98-525 authorized the conversion of the Vietnam Era GI Bill to the Montgomery GI Bill (MGIB).  To be eligible for the conversion, a soldier must have been eligible for the Vietnam Era GI Bill as of 31 December 1989, must have had no break in service since 19 October 1984, and must have served at least 3 years of continuous active duty after 30 June 1985.  

12.  When considering the applicant’s request for educational benefits, the VA determined that the applicant was ineligible for MGIB benefits because (1) he did not first enter active duty on or after 30 June 1985, (2) he did not serve on active duty 3 continuous years from 30 June 1985 through 30 June 1988 and (3) he was not involuntarily separated from service after 31 December 1990 nor was he separated under a voluntary separation incentive.  

CONCLUSIONS:

1.  The Board’s intent in recommending favorable action in any case is to make the individual as whole as possible consistent with the facts and circumstances of the case and to restore the individual to the position he would have attained, had the error or injustice never occurred.  The applicant’s future eligibility for veterans educational benefits was not an issue at the time the Board considered his original application.   

2.  Subsequent to implementation of the Board’s prior corrective action, the applicant, after being off active duty for 1 year and 9 months, reenlisted and returned to active duty on 30 October 1986.  At that time and throughout the following 10 years, the applicant never perceived that he was ineligible for VA educational benefits nor apparently was he ever counseled or informed concerning his ineligibility for VA educational benefits.  

3.  The applicant’s ineligibility for educational benefits stems from the fact that the MGIB, the educational program currently in effect, covers only individuals who entered active duty for the first time after 30 June 1985.  Although provisions were made in Public Law 98-525 for the conversion of the Vietnam Era GI Bill to the MGIB, to be eligible for the conversion a soldier must have had no break in service since 19 October 1984 and must have served at least 3 years of continuous active duty after 30 June 1985.  The applicant was not eligible for the conversion because he had a break in service after 19 October 1984.  

4.  Consequently, it does not appear, as the applicant contends, that an oversight on the part of the Board in its previous decision is the basis for the VA’s denial of educational benefits to him.  The Board’s prior decision not to extend the applicant or active duty or to order the applicant directly to after duty was appropriate at the time and still is.

5.  Nonetheless, the Board is of the opinion that the predicament in which the applicant now finds himself can be traced back to the faulty urinalysis, which resulted in his erroneous separation from active duty, resulting in a break in service, which now disqualifies him for educational benefits administered by the VA. 

6.  Considering the fact that the applicant completed 20 years of active service and is now retired but is not entitled to VA educational benefits, it would be appropriate to correct his records in such as a manner as would eliminate this break in service.  To this end, the Board concludes that the applicant’s records should be corrected by showing that his 3-year enlistment contract of 28 January 1982 was extended for the convenience of the Government through 29 October 1986, the day prior to his reenlistment in the Regular Army.     
7.  In view of the foregoing and in the interest of justice the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by voiding the discharge of 27 January 1985 of the individual concerned and by showing that his 3-year enlistment contract of 28 January 1982 was extended for the convenience of the Government through 29 October 1986.  

2.  That the Department issue to him a DD Form 215 correcting his final separation document and showing 28 January 1982 in item 12a (date entered active duty this period) and in item 18 (Remarks) “Extension of service was at the request and for the convenience of the government.”  
 
BOARD VOTE:  

____X___  ____X___  ___X____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson        
		        CHAIRPERSON

INDEX

CASE ID	AC AC98-08834
AR1998013791	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990623	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1. 	230	
2.		
3.		
4.		
5.		
6.