RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 FEBRUARY 2007
	DOCKET NUMBER:  AR20050014616 


	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.


	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, correction of her military records to allow her to receive educational benefits associated with the Montgomery GI Bill (MGIB) and the Army College Fund (ACF). 

2.  The applicant states, at the time of enlistment, her guidance counselor promised her $25,000.00 under the ACF in addition to the MGIB.  She maintains that all the terms of her DA Form 3286-66 (United States Army Incentive Enlistment Program) were met.  The applicant said the letter from the Department of the Army stating they have combined the MGIB and the ACF is false based on the fact that the Department of Veterans Affairs has no control over the ACF.  

3.  The applicant provides her DA Form 3286-66, DD Form 214 (Certificate of Release or Discharge From Active Duty), Veterans Affairs (VA) letter, enlistment application, and information from the internet.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 July 2001.  The application submitted in this case is dated         30 September 2005.

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 limitations 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 she enlisted in the Regular Army for a period of 3 years on 14 July 1998.  As part of her enlistment contract, she was eligible to participate in the US Army Incentive Enlistment Program which consisted of $25,000.00 for the Army College Fund.  

4.  The applicant's DD Form 2386-67 (Statement of Understanding) shows that she enlisted for the MGIB and the ACF education incentive programs.  

5.  The applicant’s enlistment application verifies that she enlisted for 3 years and choose the ACF as an incentive.  Additionally, the internet information provided by the applicant verifies that she received education benefit payments from VA.

6.  The applicant was honorably discharged on 13 July 2001.

7.  The letter from the Department of VA, dated 26 July 2006, explained that the Department of the Army determined the applicant’s eligibility to the ACF (kicker) and the amount.  The information is reported to VA.  Therefore, the Department of VA has no control over these issues.

8.  On 26 October 2004, the Education Incentives Branch responded to the applicant’s letter to President Bush concerning her ACF.  In their letter they stated that the dollar amounts reflected on the applicant’s enlistment contract combined MGIB and ACF benefits.  The Branch explained that when the applicant entered active duty in July 1998, the veteran’s rate for the MGIB basic benefits for full time students was $15,834.60 which equated to $439.85 per month for the 36 months of benefits.  The Branch stated that the ACF is an enlistment incentive only and the value was frozen at the time the applicant entered active duty.  The Branch concluded that the applicant’s ACF portion of the $25,000.00 was $9,165.40 which equated to $254.59 per month for 36 months of benefits.  Therefore, as a full time student, the applicant is entitled to $1,004.00 per month for the MGIB plus $254.59 for the ACF. 

9.  In the processing of this case, the Board obtained an advisory opinion from the Human Resources Command, Chief, Education Incentives Branch.  The Branch stated that the applicant's enlistment contract reflects $25,000.00 which includes the combined MGIB and ACF benefits.  The applicant's enlistment contract does not clarify this information and is blatantly misleading.  When the applicant entered active duty in July 1998, for a 3-year enlistment, the veteran's rate for basic MGIB benefits was $15,834.60 for a 3-year term of service obligation.  The ACF portion of her combined benefits was $9,165.40 which equates to $254.59 per month for up to 36 months worth of benefits.  Therefore, the Branch recommends approval of the applicant's request and total payment in the amount of $15,834.60 for the MGIB.  The advisory opinion was forwarded to the applicant on 11 April 2006.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), Table 9-4 of the version, in effect at the time, explained the ACF.  It stated that applicants for enlistment would be advised of the following:  The ACF provided additional educational assistance in addition to that earned under the GI Bill.  The money earned would be deposited in the Soldier's Department of Veterans Affairs account.  Normally, the funds would be disbursed to the participant in 36 equal monthly installments while the person was enrolled in an approved program of education.  

11.  The Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, 2006 edition, states the Department of Veterans Affairs will pay $1,034.00 a month for training in college, technical, or vocational school to eligible veterans.  Benefits are reduced for part-time training.  The Department of Veterans Affairs will pay an additional amount, commonly called a "kicker" or "college fund" if directed by the Department of Defense.  The maximum number of months veterans can receive MGIB benefits is 36 months at the full-time rate or the part-time equivalent.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.  

2.  While it is acknowledged that nowhere in his contract does it state the ACF includes the MGIB, in the absence of evidence to the contrary (such as sworn statements or affidavits from his recruiting officials) there is insufficient evidence to show he was not advised that the $25,000.00 listed as his ACF benefit was the total combined amount of the MGIB and the ACF.

3.  Regrettably, there is insufficient evidence which would warrant granting the relief requested.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 July 2001; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         12 July 2004.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM___  ___JM  __  __QS___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




______Mark Manning________
          CHAIRPERSON




INDEX

CASE ID
AR20060014616
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
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.
103.00
2.

3.

4.

5.

6.