MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 May 2000
	DOCKET NUMBER:   AR2000038561

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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)

APPLICANT REQUESTS:  In effect, that he be enrolled in the Montgomery G.I. Bill (MGIB).

APPLICANT STATES:  In effect, that he was never given the opportunity to enroll when he entered the Army. 

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed a 2nd lieutenant in the USAR on 31 July 1983 and served on active duty until 19 October 1991 when he was released from active duty (REFRAD), in the rank of captain, as a result of his request for continued active service being denied.  On 5 January 1992, he entered active duty in an Active Guard/Reserve (AGR) status and he was promoted to the rank of major on 
2 June 1995.  

The available records do not make clear the applicant’s source of commission nor do they contain any documents related to his initial enlistment and entry on active duty.  In addition, there are no documents on file which relate to the applicant’s initial enlistment processing upon his entering on active duty on 
31 July 1983 and his initial processing prior to his attendance at the Officer Basic Course at Fort Benjamin Harrison, Indiana.  

Army Regulation Army Regulation 621-202 (Army Educational Incentives and Entitlements) prescribes Army unique policies, responsibilities, and procedures for the administration of veterans' education programs and education incentives authorized by law.  Section 1 of chapter 2 of the regulation provides guidance pertaining to the MGIB, which was established by Public Law (PL) 98-525 and chapter 30, Title 38, of the United States Code (USC), which provides the basic guidance and criteria for the program.  

Paragraph 2-3 of the regulation provides the basic eligibility criteria for participation in the MGIB.  It indicates that soldiers must have entered active duty for the first time on or after July 1, 1985; that they must serve 24 months on a two-year enlistment and 36 months on a three-year or greater enlistment; that they must have received a high school diploma or equivalency before completing initial period of service obligation; and that they must receive a fully honorable discharge. 

Paragraph 2-4 provides the eligibility exclusions which prohibit participation in the MGIB.  It states, in pertinent part, that commissioned officers are not eligible for the MGIB if they received a commission in the Armed Forces upon graduation from the U S Military, Naval, Air Force, or Coast Guard Academies after December 31, 1976 or if they completed a program of educational assistance from a Reserve Officer Training Corps (ROTC) scholarship. 

Title 38, Chapter 30, Section 3011(b) specifies that officers are not automatically enrolled in the MGIB and that they must enroll/disenroll prior to attending the Officer Basic Course (OBC), within three working days of entering active duty. Individuals entering active duty for the first time (excluding active duty for training (ADT) from the Selected Reserves are not automatically enrolled and enrollment action must be accomplished within the first three days after entering active duty. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that he was never given the opportunity to enroll in the MGIB when he entered active duty.  However, after carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found no facts to either corroborate or disprove this claim.  Therefore, the Board could not determine what specific error or injustice on which the applicant was basing his request for relief.  Since the Board is not an investigative body and since there is a rebuttable presumption that what the Army did in the applicant’s case was correct, the Board found no basis on which to grant relief in this case.

2.  By law, a member must have entered his first period of active on or after 
1 July 1985 in order to qualify for enrollment in the MGIB.  The record clearly establishes that the applicant entered his first period of active duty on 31 July 1983, almost 2 years prior to the MGIB being established.  Therefore, the Board determined, given the applicant was not eligible for the MGIB upon entering his first period of active duty, that relief is not warranted in this case.

3.  Based on the available evidence it does not appear that the applicant would be eligible for MGIB benefits based on his entry in the AGR program.  In addition, he has not established or provided evidence to show that he ever attempted to meet normal enrollment provisions of the law, which would have required that he at least attempt to enroll in the MGIB within 3 days of his initial entry on active duty.  The record contains no evidence to show that the applicant ever even attempted to obtain MGIB benefits upon his entering active duty in an AGR status or that he was even eligible for those benefits at that time.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__ewl ___  ___klw __  ___eja __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038561	
SUFFIX		
RECON		
DATE BOARDED	2000/05/25	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1018	103.0100	
2.		
3.		
4.		
5.		
6.