RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060007072 


	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. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry

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, in effect, that he be paid the $50,000.00 Army College Fund (ACF) kicker.

2.  The applicant states, in effect, that his enlistment contract shows he was to receive the $50,000.00 ACF in addition to his MGIB entitlement.  He also states that he is now being told by Army officials he will only receive an additional $558.00 a month in addition to his MGIB payments, which equates to an ACF entitlement of $20,088.00; not the $50,000.00 ACF indicated in his enlistment contract.  He adds that nowhere in his enlistment contract does it state the ACF and the MGIB would total $50,000.00 or that the total ACF amount includes the base rate of the MGIB.  The applicant concludes by stating, in effect, this is a breach of his enlistment contract and appeals to this Board for equitable relief.

3.  The applicant provides a copy of his U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program (Annex A); DA Form 3286-67 (Statement of Understanding, Army Policy), Annex B; DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), Annex D; and DD Form 2366 (Montgomery GI Bill Act of 1984), all dated 19 September 2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the U.S. Army Reserve Delayed Entry Program on 19 September 2001 and entered active duty in the Regular Army (RA) on 27 June 2002, for a period of 4 years.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty 96H (Common Ground Station Operator).

2.  The applicant's military service records show that he served in Kuwait and Iraq in support of Operation Iraqi Freedom from 8 August 2004 through 2 August 2005.  He was honorably separated from the U.S. Army on 26 June 2006 after serving on active duty for a total of 4 years.

3.  The applicant's records contain a U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program (Annex A); dated 19 September 2001.  Item 1 (Acknowledgement) of this document shows that he enlisted for the U. S. Army Training Enlistment Program, U.S. Army Incentive Program, Cash Bonus (3,000.00), the ACF ($50,000.00), and that the date of his enlistment in the RA was scheduled for 27 June 2002.
4.  The applicant's records contain a DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), dated
19 September 2001.  Item 1a of this document shows that he was enlisting in the RA for, in addition to the U. S. Army Training Enlistment Program and Cash Bonus, the ACF.  Paragraph 3 states, if his incentive in paragraph 1a was the ACF, he would be awarded the amount of $50,000.00 (for a 4-year enlistment) provided that he remained enrolled in the GI Bill to retain this incentive.

5.  The applicant's records contain a DA Form 3286-67 (Statement of Understanding, Army Policy), dated 19 September 2001.  Item 5 of this document shows that he enlisted for the MGIB and ACF Educational Incentive Programs and contains the applicant's initials under the "Yes" column in this item.  This document also shows that it was authenticated by the applicant and the Army Guidance Counselor on 19 September 2001.

6.  The applicant's records contain a DA Form 2366 (Statement of Montgomery GI Bill Act of 1984), dated 19 September 2001.  Item 2 (Statement of Understanding), section c (All Other Service Members), of this document shows, in pertinent part, that the applicant was eligible for the MGIB and understood he was automatically enrolled in the MGIB unless he exercised the option to disenroll by signing Item 4 of the document.  This document also shows that the applicant affixed his signature to this section of the statement of understanding that he was enrolled in the MGIB, as required for eligibility of the ACF incentive.  Item 4 (Statement of Disenrollment) of this document is absent the applicant's signature.

7.  In the processing of this case, an advisory opinion was provided by the Education Incentives Branch, U. S. Army Human Resources Command (USA HRC), Alexandria, Virginia.  On 26 May 2006, that office noted that since 1 April 1993 (to 30 September 2004) the dollar amounts reflected in a Soldier's enlistment contract (i.e., on the DA Form 3286-66) have combined MGIB and ACF benefits.  It noted that the DA Form 3286-66 does not clarify that information and is misleading to the member entering active duty.  When the applicant entered active duty on 27June 2002, for a 4-year enlistment, the veteran's rate for basic MGIB benefits was $28,800.00 for a 4-year term of service obligation.  Therefore, the ACF portion of his combined benefits was $21,200.00, which equates to $588.89 per month for up to 36 months of benefits.  That office also confirmed that the ACF is a fixed amount based on the month and year the member entered active duty.  The advisory opinion adds that many Soldiers entering active duty are erroneously led to believe they will receive the MGIB rate plus the dollar amount as indicated on the enlistment contract (i.e., stipulated at time of enlistment).  They recommended that, if the Board grants the applicant's request, the computation of any payment be based on the information provided in his paperwork and adds that the total authorized ACF is $21,200.00.  They also recommended that any authorized compensation be sent directly to the applicant.

8.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 5 June 2006, the applicant concurred with the advisory opinion. (Note:  The applicant did not provide a copy of a schedule of classes for the 2006-2007 school year with his application or his concurrence indicating that he has enrolled in college subsequent to his separation from the U.S. Army.)

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), Table 9-4, of the version dated 28 February 1995 (the version in effect at the time of the applicant's enlistment), explains the ACF.  It states 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 Department of Veterans' Affairs account.  Normally, the funds will be disbursed to the participant in 36 equal monthly installments while the person is enrolled in an approved program of education.  

10.  U.S. Army Recruiting Command (USAREC) message 98-080, dated
12 November 1998, increased the total amounts of the ACF (to $50,000.00 for a
4-year enlistment), effective 12 November 1998.  This message stated, in pertinent 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 the Army in September 2001.  There is insufficient evidence to show he was not advised that the $50,000.00 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

__HOF __  __WFC__  ___DED_  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_____
          CHAIRPERSON




INDEX

CASE ID
AR20060007072
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/13
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. CHUN
ISSUES         1.
103.0100.0000
2.

3.

4.

5.

6.