MEMORANDUM OF CONSIDERATION  

	IN THE CASE OF:      

	BOARD DATE:           24 April 2003                  
	DOCKET NUMBER:   AR20002077424  

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Terry L. Placek		Member	
	Mr. Robert L. Duecaster 		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 item 15a (Member contributed to post-Vietnam era veteran’s educational assistance program [VEAP]) of his DD Form 214, separation document, be changed from No to Yes.  The correction will allow him to enroll in the Montgomery GI Bill (MGIB) program, as of the date he enlisted. 

APPLICANT STATES:  He believes the restoring of his eligibility for MGIB benefits would cure an injustice.  He signed up for the MGIB when he entered the Delayed Entry Program on 29 September 1997.  On 24 June 1998, he reported for processing into the active Army.  The following day, 25 June, he had a reaction to immunizations shots that left him distracted and disoriented.  Years later as he was preparing to separate from the Army he discovered for the first time that during his initial inprocessing he rejected the MGIB education benefits.  He has no memory of signing the form and never had any intention of rejecting MGIB benefits.  He can only surmise that his disorientation due to the reactions to the immunizations must have contributed to his erroneously signing the disenrollment form.  It should be obvious to the Board, as it is to him now, that his chain of command failed its responsibilities by allowing him to choose disenrollment and making an irrevocable decision to reject benefits that only a fool would refuse.  At a minimum, the sergeant should have counseled him on the effect of signing the declination line, or verified that he was mentally alert enough to make knowledgeable decisions.

He does not expect something for nothing and is aware that $1200.00 should have been deducted from his pay during his first year of service.  He did know this; therefore, he did not think it strange that nothing was deducted from his pay. He offers to now pay the $1200.00.

In support of his request, he submits an extract from his medical records that indicates that he received immunizations on 25 June 1998.  A statement of the form reports no reactions to the immunizations were observed in the applicant for 20 minutes after taking the shots.

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

He enlisted in the Regular Army on 24 June 1998, trained as an infantryman and achieved pay grade E-4.  He served until his honorable separation on 23 June 2002.

On 29 September 1997, he signed a DA Form 2366 (MGIB) enrolling in the MGIB program.  On 26 June 1998, he signed the same form disenrolling from the MGIB program.  Above his signature is the statement: “I do not desire to participate in the MGIB.  I understand that I WILL NOT be able to enroll at a later date.”  The form also informs the applicant that unless he disenrolls from the MGIB, his basic pay will be reduced $100.00 for the first 12 months of active service.

In the processing of this case, U.S. Total Army Personnel Command provided an advisory opinion.  They noted the applicant was asking for educational benefits under the Veterans Education Assistance Program (VEAP).  A program that terminated 30 June 1985 and prior to the applicant’s 24 June 1998 entry into the Army, therefore his DD Form 214 is correctly annotated.  They concluded the applicant declined MGIB enrollment, a decision irrevocable under Title 38, 
U.S.C. 3011.  The advisory was provided to the applicant with no response.

The MGIB, as outlined in Title 38, United States Code, chapter 30, section 1411(b) (change to section 3011), 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 Department of Veterans Affairs (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 serve 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.

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 applicant contends he does not remember signing the MGIB form, disenrolling from the program because he was disoriented due to immunizations shots taken.  The Board cannot conclude from the evidence available the applicant’s mental capacity several years ago.  The immunization record does reflect that he received shots the day before but it also indicates that the applicant was observed by medical personal for 20 minutes for reaction to the immunizations and no reactions were observed.  The applicant by his signature disenrolled from the MGIB program and his monthly pay was not reduced by $100.00, as required for enrollment.  The applicant’s statement that he was 

drowsy the day he disenrolled and that he was unaware of the $100.00 monthly deduction is not persuasive.  He states that his chain of command failed by allowing him to sign a statement of disenrollment.  The fact that there is a disenrollment option indicates that those that developed the law that governs the MGIB program believed that disenrollment was a logical choice for some.  Therefore his chain of command were not obligated to stop him from exercising his legal right to disenroll and not obligate himself to a monthly $100.00 deduction.  The applicant has not submitted sufficient evidence or persuasive argument to overcome that evidence that he voluntarily disenrolled from the MGIB program.

2.  As for the applicant’s request to change item 15a of his DD Form 214 and enrollment in the VEAP program.  The Board concludes the applicant mistakenly thought that enrollment in VEAP would also enroll him in the MGIB program.  As pointed out in the advisory opinion the VEAP terminated prior to the applicant’s enlistment.  His DD Form 214, item 15a; is correct and requires no correction. 

3.  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

__tlp ____  ___rd ___  ___rvo __  DENY APPLICATION

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

INDEX

CASE ID	AR2002077424	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030424	
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.	128.14	
2.		
3.		
4.		
5.		
6.