RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070000904 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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 $30,000.00 Army College Fund (ACF) kicker.

2.  The applicant states, in effect, that when he signed his contract for military service, DA Form 3286-66, in April 1995, there was no mention of the Montgomery GI Bill (MGIB) on his contract.  He signed up for the MGIB plus the ACF kicker of $30,000.00.  However, he has been told that this was not the case. There was no mention of the MGIB on his contract except to say that he must stay enrolled in the MGIB in order to receive the additional ACF kicker, of $30,000.00

3.  The applicant provides a copy of DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), dated 6 April 1995, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 14 November 2003, the date of his discharge by reason of physical disability.  The application submitted in this case is dated 5 January 2007.

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 enlisted in the U. S. Army Reserve (USAR) Delayed Entry Program (DEP) on 25 January 1995, for 8 years, in pay grade E-1.  He enlisted in the Regular Army on 6 April 1995 for 4 years and 17 weeks.  He was trained as a light weapons infantryman, in military occupational specialty (MOS), 11B. 





4.  His DA Form 3286-66, dated 6 April 1995, paragraph 1a states that he was enlisting for, in addition to the U. S. Army Station/Unit/Command/Area Enlistment Program, the ACF.  Paragraph 3 states that, if his incentive in paragraph 1a was the ACF, he would be awarded the amount of $30,000 for a 4-year enlistment.  He enrolled in the Montgomery GI Bill (MGIB) as required for eligibility for the ACF incentive.

5.  The applicant was advanced to pay grade E-4 effective 1 July 1998.

6.  On 8 December 1998, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-24B(3), for disability, with severance pay.  

7.  After a break in service, he reenlisted in the Regular Army on 28 October 1999, for 3 years, in pay grade E-4, in MOS 11B, Light Weapons Infantryman.

8.  The applicant’s DA Form 3286-67 (Statement of Understanding/Army Policy) shows that he enlisted for the U. S. Army Station/Unit/Command/Area Enlistment Program, and the ACF, with no Cash Bonus.  He enrolled in the Montgomery GI Bill (MGIB) as required for eligibility for the ACF incentive.

9.  The applicant was promoted to sergeant (SGT/E-5) effective 8 March 2001.

10.  The applicant was honorably discharged on 30 May 2002, for immediate reenlistment.  He reenlisted on 31 May 2002 for MOS 96B, Military Intelligence Analyst, with a selective reenlistment bonus, and current station stabilization for 1 year.  

11.  On 14 November 2003, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-24B(3), for disability, with severance pay.  

12.  The applicant did not provide college transcripts to show he was currently enrolled in a college or university pursuing his education.

13.  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.  

14.  The Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, 2006 edition, states the Department of Veterans Affairs will pay $1,034 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.  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 $30,000.00 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 14 November 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 November 2006.  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

___JI___  ____RML_  __JRH___  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.




_____John Infante_________
          CHAIRPERSON




INDEX

CASE ID
AR20070000904
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070724
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20031114
DISCHARGE AUTHORITY
AR 635-40, para 4-24b(3)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
112
2.

3.

4.

5.

6.


3