RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070001185 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Robert Soniak

Member

Ms. Karmin Jenkins

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 he be paid $40,000 in Army College Fund (ACF) benefits as outlined in his enlistment contract.

2.  The applicant states, in effect, that he enlisted in January 2003 for a period of four years, the Montgomery G.I. Bill (MGIB), and the ACF ($40,000).  He contends that he was told by his recruiter, the Department of Veterans Affairs counselor, and other recruiters that his MGIB was a separate benefit from the ACF.  He states that it was his understanding that he would receive the MGIB plus $40,000 for the ACF.  He intended to use the funds for a Masters degree in nursing.  He also states that he is very upset with the conditions that he had to endure during his two deployments in Iraq and now he finds out that he will not be getting the benefits he had believed he signed up for.  

3.  The applicant provides his enlistment contract.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant enlisted in the U.S. Army Reserve on 17 October 2002 for a period of 8 years under the delayed entry program.  He enlisted in the Regular Army on 14 January 2003 for a period of 4 years.  His DA Form 3286-66 (Statement of Understanding, United States Army Incentive Enlistment Program), paragraph 1a states that he enlisted for, in addition to the U.S. Army Training Program and a cash bonus ($2,000), the ACF.  Paragraph 3 states that, if his incentive in paragraph 1a was the ACF, he would be awarded the amount of $40,000 for a 4-year enlistment.  He enrolled in the MGIB on 21 January 2003, as required for eligibility of the ACF incentive.

3.  On 29 December 2006, the applicant was released from active duty to attend school.

4.  In the processing of his case, an advisory opinion was prepared by the Chief, Education Incentives Branch of the U.S. Army Human Resources Command (USAHRC).  The advisory opinion recommended approval of the applicant’s request as stated on his enlistment contract.  The opinion states that from 1 April 1993 to 30 September 2004 the dollar amounts reflected on a Soldiers’ enlistment contract, DA From 3286-66, have combined the MGIB and ACF benefits.  This form did not clarify this information and was blatantly misleading to the applicant entering active duty.  The proponent of the form is the U.S. Army Recruiting Command who has since revised the form and produced it in an electronic format to include appropriate changes.  That office states that the applicant’s contract reflects $40,000.  This dollar amount included the basic rate of the MGIB at the time of his enlistment on 14 January 2003 which was $32,400. The remainder, $7,600, is his ACF incentive which equates to $211.11 per month for up to 36 months worth of benefits for full time training. 

5.  A copy of the advisory opinion was provided to the applicant for comment; however, he did not respond within the given time frame.   

6.  In a previous case, the Education Incentives Branch, USAHRC confirmed that the ACF is a fixed amount based on the month and year the member entered active duty.

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 MGIB.  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.  U. S. Army Recruiting Command (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 January 2003.  There is insufficient evidence to show he was not 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:

CG_____  __RS____  __KJ____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff’s above DISCUSSION/CONCLUSION, it is noted that the advisory opinion indicated that the enlistment contract was “blatantly misleading to the applicant entering active duty.”  The applicant believes he was misled, either deliberately or not, by his recruiter.  As a result of the misleading enlistment contract, the U. S. Army Recruiting Command has changed the enlistment contract.  The applicant has stated he intends to use the Army College Fund for a Masters degree in nursing.  Providing the applicant the amount of the Army College Fund indicated in his enlistment contract would be the correct thing to do.

2.  The MGIB/ACF benefit is disbursed to the applicant in 36 equal monthly installments while enrolled in an approved program of education.  The MGIB/ACF benefit is $40,000 pro-rated over 36 months.  The MGIB portion is $900.00 per month and the ACF benefit is $211.11 per month while enrolled in an approved program of education.  The Department of Veterans Affairs will/should pay the applicant that amount.

3.  The Board recommends that the applicant’s DA Form 3286-66 be amended to include the sentence “If ACF benefits in the amount of $40,000.00 were authorized by the official processing you for enlistment and the Government fails to pay the full amount under the appropriate provisions and such failure results in nonpayment of ACF benefits in the amount of $40,000.00, the Army Board for Correction of Military Records may pay said benefits, at its sole discretion, in accordance with Title 10, U. S. Code, section 1552.”

4.  The above correction will allow the Board to pay the applicant an additional ACF payment up to $32,400 or $900 per month in 36 monthly installments, for the time he was/is enrolled in an approved program of education.  

5.  That as a result of the correction outlined in paragraph 3 above, the applicant will be required to provide to the Defense Finance and Accounting Service (DFAS) documentation from the Department of Veterans Affairs showing when they paid him his MGIB/ACF payments.  DFAS shall then remit to the applicant the amount of $900.00 for each month up to 36 months based on the Board’s decision to pay additional ACF payments up to $32,400.

6.  DFAS may use this Record of Proceedings as authorization to make the applicant’s current authorized payment, if any, as a result of this records correction and all future required payments.  The applicant must provide DFAS documentation from the Department of Veterans Affairs verifying or showing they paid him his MGIB/ACF payments for any period prior to the date of these Proceedings.

7.  The applicant must provide the required Department of Veterans Affairs documentation and a copy of this Record of Proceedings each time he applies to DFAS (Director, DFAS-Denver Center, ATTN:  Claims Br-POCC, 6760 East Irvington Place, Denver CO  80279-7000) for payment.

8.  It is recognized that DFAS may be limited by the barring statute from complying with this recommendation/directive if the applicant submits his request for payment more than 6 years after the date of this recommendation/directive.  (The barring statute may or may not be applicable in the case of the applicant.)   If DFAS notifies the applicant the barring statute prevents their compliance with this recommendation/directive, the applicant would need to apply again to this Board for payment.   He would need to provide all records of payments made by the Department of Veterans Affairs that were not paid by DFAS.




___Curtis Greenway____
          CHAIRPERSON




INDEX

CASE ID
AR20070001185
SUFFIX

RECON

DATE BOARDED
20070802
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
128.1400
2.

3.

4.

5.

6.