IN THE CASE OF: BOARD DATE: 1 September 2009 DOCKET NUMBER: AR20090004553 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his military pay records to restore monies wrongfully deducted for participation in the Montgomery GI Bill (MGIB). The applicant requests to personally appear before the Board. 2. The applicant states that upon his initial entry into the Army he opted not to participate in the MGIB. The Defense Finance and Accounting Service (DFAS) withheld $100.00 per month for a period of 12 months. He submitted multiple claims to DFAS for reimbursement, even while still on active duty. He was continuously passed between the installation finance office, education office, and the Department of Veterans Affairs but never got any resolution from DFAS. 3. The applicant provides copies of his DD Form 2366 (MGIB Act of 1984) and his DFAS Leave and Earnings Statements from 1 February 1997 through 31 January 1998 in support of his application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. During the period from August 1992 to May 1996, the applicant was enrolled in the Reserve Officers' Training Corps (ROTC) at Western Kentucky University. He had received a 2-year Category II scholarship which was terminated in January 1996 for academic deficiency. He was discharged from ROTC in June 1996. Accordingly, he incurred a debt to the U.S. Government and had the option to either repay the monies or be ordered to active duty. His initial option was to repay the debt. 3. In December 1996, the applicant was granted a Bachelor of Science Degree from Western Kentucky University. 4. On 26 August 1996, the applicant enlisted in the U.S. Army Reserve for a period of 8 years in the rank of private first class, pay grade E-3. As part of his contract, he completed DD Form 2366 stating that he did not desire to participate in the MGIB and that he understood that he would not be able to enroll at a later date. 5. On 6 January 1997, the applicant enlisted in the Regular Army for 4 years. He completed his initial training and was awarded military occupational specialty 11B (Infantryman). 6. The applicant's DFAS Leave and Earnings Statements for the period from 1 February 1997 through 31 January 1998 show that $100.00 per month for 12 months was deducted from his military pay for the purpose of MGIB enrollment. 7. In June 2000, the applicant applied to this Board for relief of his ROTC debt to the U.S. Government based on his active duty service. The Board granted him full relief to include a refund of any monies already paid towards the debt. 8. On 10 March 2005, the applicant was released from active duty due to completion of required service. He had attained the rank of staff sergeant, pay grade E-6, and had completed 8 years, 2 months, and 5 days of creditable active duty service. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he declined participation in the MGIB and that monies deducted from his Army pay should be refunded. 2. The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted. 3. The available evidence shows that the applicant declined participation in the MGIB at the time of his enlistment. Therefore, his military pay should not have been reduced for the purpose of paying MGIB premiums. 4. In view of the above, the applicant's request should be granted. BOARD VOTE: ____x____ ____x____ _____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that he properly completed the DD Form 2366 declining to participate in the MGIB in a timely manner and showing that his DD Form 2366 was received in and processed by the appropriate office in a timely manner; b. auditing his DFAS records and refunding all monies deducted for the purpose of paying MGIB premiums and c. paying the applicant any monies due him as a result of this correction and subsequent audit of his pay records. ____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090004553 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004553 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1