MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:    

		BOARD DATE:          6 November 2003                   
		DOCKET NUMBER:  AR2003087262

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Mae M. Bullock		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:  That he “be entitled to the G.I. Bill.”

APPLICANT STATES:  He was told by personnel at the education center at Fort Hood, Texas, his commanding officer, and a Reserve Officers Training Corps (ROTC) instructor that if he accepted the ROTC scholarship he would still be entitled to the Montgomery G.I. Bill (MGIB).

In a letter to a U.S. Senator, the applicant explains that he was told while he was on active duty that, since he had two months of active duty as a reservist prior to his enlistment into the Regular Army, he would have the 30 months required to qualify for the MGIB.  After his release from active duty and enrollment into college, he was told that the 30 months of active duty had to be consecutive.  As such, he is not entitled to MGIB benefits.  The applicant contends that if he had known that he required 30 consecutive months of active duty to qualify for the MGIB, he would have delayed his release from active duty.

In response to that letter, the Human Resources Command, Alexandria Virginia, stated that the active duty for training the applicant completed as a reservist did not qualify under law for time served for the purpose of establishing benefits under the MGIB.

EVIDENCE OF RECORD:  The applicant's U.S. Army Reserve (USAR) military records show:

He enlisted in the USAR with no prior service on 29 January 1994 for the alternate training program (the reservist attends basic combat training [BCT] one summer, and attends advanced individual training [AIT] the next summer).  He apparently completed BCT in 1994, and was scheduled to attend AIT on 8 June 1995.

When the applicant failed to report for AIT as ordered, he was given an uncharacterized discharge on 12 November 1995 for Entry Level Performance and Conduct.

The Board was not provided a copy of the applicant’s Regular Army military records.

The GI Bill, as outlined in Title 38, United States Code, Section 3011, provides for soldiers who entered the service after 30 June l985, to be automatically enrolled into the GI Bill and to contribute $1,200.00 during their first 12 months service, which is nonrefundable.  After completion of their service obligation, he or she is entitled to receive monthly educational benefits for 36 months.  The program is administered by the Department of Veterans Affairs (VA).  This law also specifies that if a soldier is separated prior to the normal expiration of his or her term of service, the separation must be for hardship, medical disability or for the convenience of the government.  Also, he or she must have served in excess of 20 months for an enlistment of less than 3 years, and in excess of 30 months for an enlistment of 3 years or more.  In all cases, the soldier’s service must be considered fully honorable.

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

1.  It would appear that the applicant served two months of active duty while in the USAR.  Unfortunately, the law which provides benefits under the MGIB specifies that the period of active service must be continuous.

2.  While the applicant states that he was told he would be eligible for MGIB benefits with 28 months of continuous active service, based on the two months of prior active duty he served in the USAR, he has not submitted any documentation to substantiate his claim.  

3.  Also, it is unclear whether the applicant had to be separated from active duty on a specific date in order to enroll in school, and therefore establish eligibility for his ROTC scholarship.

4.  Since the MGIB eligibility is established by law, and the Board is not empowered to violate law, the Board is unable to grant the applicant’s request as written.  However, the Board could otherwise establish the applicant’s eligibility to the MGIB by showing that he served on active duty for another two months, or by changing the reason and authority for his separation.  Unfortunately, because of the reasons cited above, there is currently insufficient basis on which to recommend such corrections.

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

___mmb _  ___sk __  ___rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087262	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031106	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.