PROCEEDINGS

	IN THE CASE OF        

	BOARD DATE:            18 July 2000                  
	DOCKET NUMBER:    AR2000042324

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchannon		Member	
	Ms. Margaret V. Thompson		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 his reentry (RE) code be corrected to a code which would allow him to use his benefits under the Montgomery GI Bill (MGIB).

3.  The applicant states that when he was separated from the Regular Army he was told that his discharge wouldn’t affect him in any way in the future.  This has proven untrue.  A couple of years after his discharge from the Regular Army he enlisted in the Regular Marine Corps.  At that time he was promised the MGIB and had the required $1,200.00 contribution deducted from his pay.  He served with distinction in the Marine Corp, serving 6 years on active duty and being honorably discharged at the expiration of his term of service (ETS).  After his discharge from the Marine Corps he enrolled in college only to have the Department of Veterans Affairs (DVA) tell him that he isn’t entitled to MGIB benefits because he didn’t serve in the Army for at least 1 year, because he received an uncharacterized discharge from the Army, and because the RE code he was given by the Army denoted conduct problems.

4.  In support of his application he submits numerous certificates of achievement that he was given while he was on active duty in the Marine Corps.

5.  The applicant’s military records show that he enlisted in the Regular Army on 9 August 1989 at age 17.  On 22 September 1989 he was notified by his commander of his intent to recommend his discharge by reason of Entry Level Status Performance and Conduct.  The reasons for that recommendation were his immaturity, his inability to cope with the stress of a training environment, and his unwillingness to make an honest effort to adapt to the military regimen or environment.  The applicant acknowledged receipt of that notification and completed the notification’s waiver endorsement.

6.  On 27 September 1989 the applicant was given an uncharacterized separation for Entry Level Status Performance and Conduct.

7.  The Board was not provided the applicant’s Marine Corps records other than his DD Form 214 which shows that he enlisted in the Regular Marine Corps on 4 May 1993, served as a tank crewman, was promoted to pay grade E-5, contributed $1,200.00 to the MGIB, and was honorably discharged at his ETS on 3 May 1999.

8.  The MGIB, as outlined in Title 38, United States Code, chapter 30, section 1411(b), provides for soldiers who first entered the service after 30 June 1985, to be automatically enrolled into the MGIB and to contribute $1,200.00 during their first 12 months service, which is nonrefundable.  The program is administered by the DVA.  DVA regulations specify that if a soldier is separated prior to the soldier’s normal ETS, the separation must be for hardship, medical disability or for the convenience of the government.  Also, he or she must have served at least 20 months for a 2-year enlistment, and at least 30 months for an enlistment of 3 years or more.  In all cases, the soldier’s service must be considered fully honorable.

9.  In the processing of this case the staff of the Board determined that it was necessary to contact the applicant.  In that conversation the applicant was informed that the correction that he has requested, changing his RE code, would not establish entitlement to MGIB benefits since the law limits MGIB benefits for soldiers who first enter on active duty.  His first period of service was in the Regular Army, not the Marine Corps.  The applicant was asked by the staff of the Board if he would be willing to have his enlistment in the Regular Army voided if that correction was recommended by the Board, since that would be the only way to have his Marine Corps service, the service which would establish MGIB eligibility, his first service in the military.  The applicant stated that he would accept that correction if it were to be recommended by the Board and approved by the Secretary of the Army.

CONCLUSIONS:

1.  The applicant is not entitled to the MGIB for his service in the Regular Army since he did not complete his enlistment or complete a designated portion of his enlistment with a convenience of the Government separation.  He is not entitled to the MGIB for his service in the Regular Marine Corps since it was not his first service in the military.

2.  However, an injustice indisputably exists in this case.  The applicant was promised the MGIB by the Marine Corps, $1,200.00 was collected from his pay for the MGIB, and that $1,200.00 was held by the Government for his entire 
6-year enlistment, an enlistment which he served with distinction. 

3.  Under the circumstances in this case Federal law prohibits the applicant from receiving MGIB benefits.  The only method of establishing MGIB benefits for the applicant at this point is to void his enlistment in the Army, which would establish his Marine Corps service as his first entry into the military.  If the Board were to void the applicant’s service in the Regular Army, it would create a debt to the Government by the applicant of the pay he received for that service.  The Board does not consider it equitable for the applicant to suffer monetarily to establish MGIB benefits which were used to induce him to enlist, so the Board will remit any debt that will be created by this correction.

4.  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 by:

	a.  showing that the enlistment of the individual concerned into the Army Delayed Entry Program on 11 February 1989 is null and void;

	b.  showing that his enlistment into the Regular Army on 9 August 1989 is null and void;

	c.  voiding his DD Form 214 for the period of service ending on 27 September 1989; and

	d. remitting any debt to the Government this correction will create.

2.  It is also directed that the military records of the individual concerned be retained with a copy of this directive and the corrections made as a result of this directive for historical reference.

BOARD VOTE:  

__gdp___  __eb____  ___mvt__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________George D. Paxson____
		        CHAIRPERSON

INDEX

CASE ID	AR200042324	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000718	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.