RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           25 November 2003                  
	DOCKET NUMBER:   AR2003091823

	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. Raymond V. O’Connor		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Yolanda Maldonado		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his records be corrected in a manner which would establish his eligibility to the Montgomery G.I. Bill (MGIB).

2.  The applicant states the he was honorably discharged due to weight control failure.  His brother, who was discharged under honorable conditions, receives MGIB benefits.  He implies that he does not believe it to be equitable for his brother to receive MGIB benefits with a General Discharge Certificate when he is ineligible for those benefits with an Honorable Discharge Certificate.

3.  The applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice which occurred on 14 October 1998.  The application submitted in this case is dated 5 March 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s records show that he enlisted in the Regular Army for 3 years on 30 October 1996.

4.  He completed his initial entry training and was awarded the military occupational specialty of corrections specialist.

5.  On 31 August 1998, the applicant’s commander notified the applicant of his intent to recommend him for involuntary separation due to weight control failure and of his rights in conjunction with that recommendation.  In that notification it was also stated that “You are required to report to the Army Education Center to receive counseling concerning earned education benefits as required by law (10 USC 1046).”

6.  The applicant waived his rights.  Accordingly, on 14 October 1998 the applicant was honorably released from active duty and transferred to the Army Reserve Control Group (Reinforcement).  The reason for his separation was weight control failure.  He had 1 year, 11 months and 15 days of active duty.  While the applicant was outprocessing from active duty, he and a transition counselor completed a pre-separation counseling checklist.  In that checklist, the applicant indicated that he desired counseling on MGIB benefits.  The applicant later signed that pre-separation counseling checklist in the block indicating that he was offered counseling on all the issues he requested counseling.

7.  The MGIB, as outlined in Title 38, United States Code, provides for soldiers who 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.  Law 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 AND CONCLUSIONS:

1.  The applicant is not eligible for the MGIB because he did not complete his 
3-year enlistment.  He was not eligible for the MGIB with reduced service because he did not complete 30 months of his 3-year enlistment, and was not separated for hardship, medical disability or for the convenience of the government.

2.  The applicant should have been aware that he was not eligible to receive benefits under the MGIB because of the nature of his separation.  He was required by his commander to be counseled on how his separation would affect his MGIB benefits, and the applicant indicated on his pre-separation counseling checklist that he received educational benefits counseling.

3.  As such, unless the applicant can show that an error or injustice occurred in his separation, there is insufficient basis in which to grant his request.

4.  Whether the applicant’s brother receives MGIB benefits or not is not germane to this case.  A veteran either meets the requirements for MGIB benefits as prescribed by Title 38, US Code, or he or she doesn’t.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 14 October 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 October 2001.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___lem __  ____ym__  ____rvo_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		_________Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

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