RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20040010209


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      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 that he be paid the $26,500 Army College Fund
(ACF) kicker.

2.  The applicant states that it was his understanding upon enlistment that
he would receive an ACF kicker amount of $26,500 in addition to his
Montgomery GI Bill (MGIB) payout.

3.  The applicant provides copies of his enlistment documents including the
DA Form 3286-66 (Statement of Understanding United States Army Incentive
Enlistment Program).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Delayed Entry Program (DEP) on 26 June
2002. He was separated from the DEP and entered the Regular Army in pay
grade E-3 for a 2 years enlistment beginning 7 August 2002.  DA Form 3286-
59 (Statement for Enlistment, United States Army Enlistment Program, U.S.
Army Delayed Enlistment Program) states the applicant is enlisting under
program 9A Army Training Enlistment Program and 9C Army Incentive
Enlistment Program (ACF $26,500.00) and (Cash Bonus $8,000.00).

2.  The applicant's DD Form 1966 Record of Military Processing–Armed Forces
of the United States) item 32 specific Option/Program Enlisted For,
Military Skill, or Assignment to a Geographical Area  states "IAW AR 601-
210 program 9A-US Army Training Enlistment Program request option 26-13F10,
2 years 00 weeks UN 2616, program 9C US Army Incentive Enlistment Program
request option 16 372, ACF $26,000.00, Cash Bonus $8,000.00."

3.  The DA Form 3286-66 (Statement of Understanding-Army Policy USAREC
Addendum to DD Form 1966 Series) paragraph 1a states that he was enlisting,
in addition to the U. S. Army Training Enlistment Program, for the "US Army
College Fund $26, 500."  Paragraph 3 states that, if his incentive in
paragraph 1a was the ACF, he would be awarded the amounts indicated below
as they apply to the term for which he was enlisting:  2 years – up to
$8,000; 3 years – up to $12,000; and 4 years – up to $14,000.

4.  The applicant enlisted in the Regular Army on 13 August 1998 for 6
years.
Each section of his enlistment documents contains a variation of an
acknowledgement to the effect that only written promises therein are valid.

5.  U. S. Army Recruiting Command (USAREC) message 98-080 dated
12 November 1998 increased the total amounts of the ACF (up to $40,000 for
a 4-year enlistment) effective 12 November 1998.  This message stated, in
part, "The amounts reflected above are the total combined amounts of the
MGIB and ACF authorized as of 12 Nov 98."

6.  During the processing of this case an advisory opinion was obtained
from the Army Human Resources Command (HRC) recommending disapproval of the
applicant's request.  The Acting Chief, Education Incentives Branch noted
that, since 1 April 1993, the amount shown on the DA Form 32-66 is intended
to be the combined total of the MGIB and the ACF; however; the form does
not make that information clear.  The advisory opinion states that for
years a change to the document has been requested. The Chief also noted
that, "Many Soldiers entering active duty are erroneously led to believe
that they will receive this MGIB rate plus the dollar amount on their
contract."  If the Board decided to grant relief, direct compensation to
the individual in the amount of $23, 400.00 (the amount substantiated by
his paperwork) was recommended.

7.  An advisory opinion was also provided by the Policy Integrator,
Incentives and Budget Branch, Enlisted Accessions Division, Office of the
Deputy Chief of Staff, G-1 who observed "we believe the enlistment contract
language…was misleading at the time, but believe the concept was
explained…upon enlistment." He also noted that the enlistment contract form
has since been modified.  In effect, he recommends that the applicant's
request be denied.

8.  The advisory opinions were provided to the applicant for possible
rebuttal.  His 3 May 2005 response pointed out that, although the advisory
opinions recommend denial, the information provided supports the idea the
relief is warranted.  He noted that the HRC opinion provided no support for
the recommended denial and observed that the G-1 argument hinged on the
belief that soldiers had been properly counseled.  He recalls that, while
going through the enlistment process, he was cautioned that only
information in writing was enforceable and notes that there is nothing in
his enlistment documents to indicate that the $26,500 figure is derived
from combining the MGIB and the ACF.

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program), Table 9-4 explains the ACF.  It states that applicants for
enlistment will be advised of the following:  The ACF provides additional
educational assistance in addition to that earned under the GI Bill.  The
money earned is deposited in the Soldier's DVA account.  Normally, the
funds will be dispersed to the participant in 36 equal monthly installments
while the person is enrolled in an approved program of education.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's enlistment documents state that he was enlisting, in
addition to the U. S. Army Training Enlistment Program, for the "US Army
College Fund $26,500."  This paragraph sounds like he would receive
$26,500.00 for the ACF. There is no reference to or mention of the MGIB and
no indication that this amount included whatever amount he would be
entitled to under the MGIB.

3.  To add further confusion, Army Regulation 601-210, Table 9-4 explains
the ACF and states that applicants for enlistment will be advised that the
ACF provides additional educational assistance in addition to that earned
under the MGIB.  The regulation did not clarify that the amount reflected
was to be the total combined amount of the MGIB and ACF.  It appears this
fact was not clarified until USAREC message 98-080 dated 12 November 1998
which stated, in part, "The amounts reflected above are the total combined
amounts of the MGIB and ACF authorized as of 12 Nov 98."

4.  The above lends credence to the applicant's contention that he was not
told by recruiting officials that the $26,500 figure included funds
received under the MBIG.

5.  The advisory opinions admit that the recruiting documents are
misleading, but nevertheless recommend denial of relief although the
rationale provided clearly supports the opposite conclusion.  The G-1
official maintains, without any
supporting evidence or logic, that the true meaning of the words had been
adequately explained to the applicant.  However, in the face of warnings
that only written promises are enforceable, it is irrational to believe
that a prospective recruit would have even grasped such an explanation.

6.  The applicant should receive the funds promised in his enlistment
documents and not the amounts that someone believes he was told.  He should
be paid $26,500.00 the amount specified in his enlistment documents.

BOARD VOTE:

__REB__  __LF  ___  __LMD __  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
paying the applicant $26,500.00, the amount specified in his enlistment
contract, minus any benefits he has received from ACF not counting payments
he would have derived from MGIB.





                                  __   Ronald E. Blakely__________
                         CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040010209                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050927                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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