RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060000510 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 his enlistment contract be honored as written, and that he receive a full payment of the Army College Fund (ACF) in the amount of $40,000.

2.  The applicant states, in effect, that he joined the Regular Army on 29 March 1999 for training in military occupational specialty 95B (Military Police).  During basic training, he was offered an opportunity to change his MOS to 95C (Correctional Specialist).  As an incentive, he was offered the ACF in the amount of $40,000, and was told this was in addition to and separate from any Montgomery GI Bill (MGIB) incentives.  After completing his active duty service, he was told by the Veterans Affairs that he was only entitled to receive $40,000 (ACF and MGIB combined). This allowed him approximately half of the ACF that he was promised.

3.  The applicant provides a copy of his Certificate of Transfer or Discharge from Active Duty (DD Form 214), Statement of Understanding, United States Army Incentive Enlistment Program (DA Form 3286-66), and Waiver of Enlistment Contract in support of his request.

CONSIDERATION OF EVIDENCE:

1.  On 29 March 1999, the applicant enlisted in the Regular Army for 5 years.  In connection with this enlistment, he acknowledged and understood that he would receive a Seasonal Incentive Bonus of $3,000.

2.   On 27 May 1999, the applicant was afforded the opportunity to waive his initial enlistment contract, and did so.  He voluntarily waived the commitments made to him at the time of his enlistment which included training in MOS 95B, an obligation to serve on active duty for 5 years, and receipt of a $3,000 Seasonal Incentive Bonus.

3.   At the same time, the applicant indicated that he understood that, as a result of waiving his original enlistment contract, he would receive training in MOS 95C, be obligated to serve on active duty for 4 years, and receive a $40,000 ACF.  

4.   On 31 October 2003, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement).  He had completed 4 years, 7 months and 2 days of active duty.

5.   In the processing of this case, a staff advisory opinion was obtained from the Office of the Education Incentives Branch, United States Army Human Resources Command, located at 200 Stovall Street, Alexandria, Virginia.  It opined, that from 1 April 1993 to 30 September 2004, the United States Army Recruiting Command (USAREC) utilized a form of their contract that was blatantly misleading.   It did not clarify that the dollar amounts as reflected on a soldier's contract included both the MGIB benefit and the ACF incentive.  In this case, the applicant's contract reflects $40,000.  This includes the basic MGIB.  When the applicant entered active duty on 29 March 1999, his MGIB benefit was $19,008.00 for an enlistment of more than four years.  Therefore, the ACF portion of his combined benefits was $20,992.00 which equates to $583.11 per month for up to 36 months worth of benefits.  Many soldiers entering active duty were erroneously led to believe that they would receive the MGIB plus the dollar amount indicated on their enlistment contract.  The USAREC has since revised the contract.   It further opined that any decision to grant compensation be based upon the information in the applicant's paperwork, which supports a payment of $19,008.00, and that any amount so authorized be sent directly to the Soldier.  It recommended, if the Board decided to grant compensation, that the computation of any payment be based on the information in the individual's paperwork and that any amount so authorized be sent directly to the Soldier. 

6.  On 24 August 2006, the applicant concurred with the advisory opinion.  

7.  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.  

8.  USAREC Message 98-080, dated 12 November 1998, increased the total amounts of the ACF (to $40,000 for a 4-year enlistment) effective 12 November 1998.  This message stated, in part, "No attempt will be made to describe or provide applicants a breakdown of the MONTGOMERY GI BILL AND ARMY COLLEGE FUND amounts.  The amounts reflected above are the total combined amounts of the MGIB and ACF authorized as of 12 Nov 98."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.
2.  It is acknowledged that nowhere in his contract does it state the ACF amount includes the MGIB.  However, in the absence of evidence to the contrary (such as sworn statements or affidavits from his recruiting officials) administrative regularity regarding the regulatory requirement for applicants for enlistment to be properly advised of the ACF is presumed.

3.  Army Regulation 601-210, Table 9-4 explains the ACF and states applicants for enlistment will be advised the ACF provides additional educational assistance in addition to that earned under the MGIB.  USAREC message 98-080 dated 12 November 1998 clarified that the amount reflected was to be the total combined amount of the MGIB and the ACF.  The applicant enlisted in March 1999. There is insufficient evidence to show he was advised that the $40,000 listed as his ACF benefit was the total combined amount of the MGIB and the ACF.   

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WFC__  __DED__  __HOF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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





__       Hubert O. Fry, Jr.______
          CHAIRPERSON




INDEX

CASE ID
AR20060000510
SUFFIX

RECON
 
DATE BOARDED
20070213
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
112.0000
2.

3.

4.

5.

6.