PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 December 1998                 
	DOCKET NUMBER:   AC98-11570

	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.  The following members, a quorum, were present:

	Mr.	Ernest M. Willcher		Chairperson	
	Ms.	Lana E. McGlynn		Member	
	Ms.	Carol J. Suiter		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr. 	Ed Clark		Analyst	

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

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 “Immediate discharge from the Army with honorable discharge.  Injunction from being deployed from Fort Bliss until correction is decided.”  He states, in essence, that at the time of his enlistment he was misled into believing that he would be entitled to full Army College Fund (ACF) and Montgomery GI Bill (MGIB) benefits based on a 4-year enlistment; and that he has now discovered, because of his special circumstances at the time of enlistment, that he will not derive the full benefit from the enlistment options which were promised at the time.  (Education benefits for veterans are administered by the Department of Veterans Affairs [DVA] under the provisions of Title 38, United States Code).

3. He attended the University of North Texas from 1990 to 1993 using DVA educational benefits to which he was entitled as the surviving son of a disabled veteran.  He was subsequently enlisted in the Army Reserve Delayed Entry Program (DEP) on 27 September 1995.  On 29 March 1996 he was discharged from the DEP and was enlisted in the Regular Army, in pay grade E-4, vice
E-1, (based on his education) for a period of 4 years with entitlement to the ACF, and automatic entitlement to the MGIB.

4.  His enlistment documents, specifically, DA Form 2366, Montgomery GI Bill Act of 1984 (MGIB), which outlines specific details related to entitlements provided by the MGIB and was signed by the applicant, shows a total of 13 statements.  Statement number 12 shows “I cannot receive any combination of DVA benefits in excess of 48 months and if I have received 12 months or more of benefits under any other VA program, my MGIB benefits will be appropriately adjusted.”  

5.  Another enlistment document, DA Form 3286-66, Statement of Understanding -United States Army Incentive Enlistment Program, signed by the applicant and his recruiter shows (written in ink next to a chart drawn on the form) that an individual enlisting for 2 years would be entitled to $20,000 in education benefits under the ACF while an individual, such as the applicant, who was enlisted for 4 years would be entitled to $30,000 in educational benefits under the ACF.  Also written in ink are the figures $329.83 (the accrual rate per month of service under a 2-year enlistment) and $404.88 (the accrual rate per month of service under a 4-year enlistment.

6.  On 9 April 1998 he submitted a DA Form 4187, Personnel Action, requesting separation based on a breach of contract (defective or unfulfilled enlistment).  In support of the application, he submitted a statement which is not in the available records.

7.  On 19 May 1998 the Chief, Education Incentives, Total Army Personnel Command (PERSCOM), recommended that the request be denied.  He wrote, in an apparent response to the aforementioned statement, that the MGIB and the ACF are two separate amounts; that it is the intent of the Army to offer a total of $30,000 in education benefits; that at the time of the applicant’s enlistment, the MGIB was valued at approximately $15,000.00 and therefore the ACF would have been valued at approximately $15,000.00 (represented by the 
$404.88 monthly accrual rate shown in the DA Form 3286-66 which is based on a maximum of 36 months of benefits); and that the applicant’s enlistment documents show that he had only 15 months eligibility for the ACF because he had previously obtained college benefits based on his eligibility as the surviving son of a disabled veteran.

8.  On 28 May 1998 his request was disapproved by the Chief, Retirements and Separations Branch, PERSCOM.

9.  The applicant subsequently filed suit in the United States District Court for the Western District of Texas.  On 11 September 1998, a judge found that the PERSCOM’s denial of the applicant’s discharge request was consistent with applicable law and regulations and clearly supported by the evidence.  He ordered the case dismissed.

10.  On 2 November 1998 a staff member of the Board was further advised by the MGIB Team Leader, Education Incentives Branch, PERSCOM, that as of 
1 April 1993 all enlistment document figures related to the MGIB and the ACF portrayed combined figures; that retainment of the ACF requires that the individual also be enrolled in the MGIB (as confirmed in the DA Form 3286-66); that the $30,000 figure shown on the applicant’s enlistment document represents the total amount of MGIB funds and ACF entitlement for 48 months of service; that, by law, he can receive benefits for a total of 48 months; and that if he separated from active duty prior to completion of his initial term of service, he could only attain eligibility for MGIB and prorated ACF benefits if he completed a minimum of 30 months of active duty and was honorably discharged after that period of service by reason of convenience of the Government.

11.  On 2 December 1998 the Board was advised by the Army Review Boards Agency (ARBA) Senior Legal Advisor that he agreed with the decision of the court that the applicant is not entitled to relief as a matter of law; however, based on the DA Form 3286-66 signed by the applicant which indicated that he would receive up to $30,000.00 ACF benefits, he recommended that the Board exercise its equitable authority to grant relief.  He further recommended that the applicant’s records be corrected to show that he was enlisted for a period of at least 2 years; and that he be discharged as soon as possible.
12.  Title 38, United States Code, Chapter 30, established eligibility requirements for participation in the Veterans' Educational Assistance Act of 1984 (New GI Bill/MGIB).  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, 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 duty.  This amount had increased to $427 per month when he entered active duty and effective 1 Oct 98 increased to $528 per month.

CONCLUSIONS:

1.  By law, an individual may earn entitlement to education benefits for a total of 48 months.  Prior to his enlistment, the applicant attained eligibility for education benefits as the surviving son of a disabled veteran.  He then used 33 months of these educational benefits at the University of North Texas.  Accordingly, he could only attain eligibility for an additional period of 15 months.

2.  The applicant benefited from the aforementioned education benefit as he was permitted to be enlisted in the Army three pay grades higher than that of an enlistee who had not completed a similar amount of college credits.  However, the issue at hand is whether he clearly understood that despite a 4-year enlistment, he would not attain further benefits after completion of the second year of enlistment.  Accordingly, in the spirit of equity, the Board presumes that the applicant was not completely aware of these facts at the time of his enlistment and therefore for the Army to retain him for the entire term of his 
4-year enlistment is unjust.

3.  The applicant continues to receive pay and allowances.  Notwithstanding his request for immediate discharge, the Army requires a reasonable period of time to effect his discharge after the decision of the Board, and both the applicant and his unit need a brief transition period prior to his separation.  Accordingly, it is both reasonable and logical to correct his records to show that he was enlisted for a period of 3, vice 4 years, and to adjust his expiration of service (ETS) date to 28 March 1999.

4.  The foregoing is supported by the ARBA Senior Legal Advisor.

5.  In view of the foregoing, 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:

a.  by showing that the individual concerned was enlisted on 29 March 1996 for a period of 3 years; and

b.  by showing his adjusted ETS date as 28 March 1999.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

EMW____  LEM____  CJS  ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-11570	
SUFFIX		
RECON		
DATE BOARDED	1998 December 16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	112.04	
2.		
3.		
4.		
5.		
6.