RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060009229 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. William d. Powers

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 she be paid the $40,000.00 Army College Fund (ACF) kicker.

2.  The applicant states, in effect, that nowhere in her enlistment contract does it state that the Montgomery GI Bill (MGIB) would be included with her $40,000.00 ACF.

3.  The applicant provides a copy of USAREC Form 1150-R-E (Statement of Understanding - Army Policy, USAREC Addendum to DD Form 1966 Series), dated 21 August 2001; DA Form 3286-59 (Statement for Enlistment, U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program), Annex A, dated
2 October 2001; and DA Form 3286-66 (Statement of Understanding, U.S. Army Incentive Enlistment Program), Annex D, dated 8 January 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that she enlisted in the U.S. Army Reserve Delayed Entry Program on 21 August 2001 and entered active duty in the Regular Army (RA) on 8 January 2002 for a period of 4 years.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty 98H (Communications Locator/Interceptor).

2.  The applicant's service records contain a DA Form 3286-59 (Statement for Enlistment, U.S. Army Enlistment Program, U.S. Army Delayed Enlistment Program), Annex A, dated 2 October 2001.  Item 1 (Acknowledgement) of this document shows that she enlisted for the U. S. Army Training Enlistment Program, U.S. Army Incentive Program, Cash Bonus ($1,000.00), the ACF ($40,000.00), and that the date of her enlistment in the RA was scheduled for
8 January 2002.

3.  The applicant's service records contain a DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), dated
8 January 2002.  Item 1a of this document shows that she was enlisting in the RA for, in addition to the U. S. Army Training Enlistment Program and Army Cash Bonus, the ACF.  Paragraph 3 states, if her incentive in paragraph 1a was the ACF, she would be awarded the amount of $40,000.00 (for a 4-year enlistment) provided that she remained enrolled in the MGIB to retain this incentive.

4.  The applicant's service records contain a DA Form 3286-67 (Statement of Understanding, Army Policy), Annex B, dated 21 August 2001.  Item 5 of this document shows that she 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 21 August 2001.

5.  The applicant's records contain 2 DD Forms 2366 (Montgomery GI Bill Act of 1984), dated 21 August 2001 and 11 January 2002.  Item 2 (Statement of Understanding), section c (All Other Service Members), of these documents show, in pertinent part, that the applicant was eligible for the MGIB and understood she was automatically enrolled in the MGIB unless she exercised the option to disenroll by signing Item 4 of the document.  The documents also show that the applicant affixed her signature to this section of the statement of understanding that she was enrolled in the MGIB, as required for eligibility of the ACF incentive.  Item 4 (Statement of Disenrollment) of the documents is absent the applicant's signature.

6.  The applicant's military service records show that she served 23 months in Germany from August 2002 to July 2004.  She was honorably released from the RA on 7 January 2006 after completing a total of 4 years active service.

7.  The applicant's military service records show that she enlisted in the Army National Guard (ARNG) on 8 January 2006 and is currently serving in the Louisiana ARNG.

8.  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 27 February 2007, 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.  The advisory official adds that the proponent of the form, the U.S Army Recruiting Command, has since revised the form and produced it in an electronic format, to include appropriate changes.

9.  The advisory opinion states that the applicant's contract reflects $40,000.00 ACF.  This dollar amount included $28,800.00, which was the basic rate of the veteran's MGIB when the applicant entered active duty on 8 January 2002.  The remaining amount (i.e., $11,200.00) is her ACF incentive.  To determine the monthly rate for the applicant's ACF incentive, $11,200.00 is divided by
36 months of benefits and therefore equates to $311.11 per month for up to
36 months of benefits for full time training.  The advisory recommended that, if the Board grants the applicant's request, the computation of any payment be based on the basic rate of the MGIB when she entered active duty and adds that total was $28,800.00.  It also recommended that any authorized compensation be sent directly to the applicant.

10.  On 1 March 2007, a copy of the advisory opinion was provided to the applicant for comment or rebuttal.  To date, the applicant has failed to provide a response.

11.  Table 9-4 of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), 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.  

12.  Headquarters, U.S. Army Recruiting Command (USAREC) message 98-080, dated 12 November 1998, increased the total amounts of the ACF (to $40,000.00 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."

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

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

2.  It is acknowledged that nowhere in her 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 her 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 Regular Army in January 2002.  There is insufficient evidence to show she was not advised that the $40,000.00 listed as her 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

___WDP_  ___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.




_____William D. Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20060009229
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/26
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20060107
DISCHARGE AUTHORITY
AR 635-200, Chapter 4
DISCHARGE REASON
Completion of Required Active Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
103.0100.0000
2.

3.

4.

5.

6.