RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2007
      DOCKET NUMBER:  AR20070003745


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 she be paid $40,000 in Army College Fund
(ACF) benefits as outlined in her enlistment contract.

2.  The applicant states, in effect, that when she enlisted in July 2000
for a period of 4 years, she was promised $40,000 for college with the ACF.
 She was never made aware that part of the $40,000 included the amount she
was to receive for her Montgomery GI Bill (MGIB).  She was under the
impression that the ACF of $40,000 was a separate entity.

3.  The applicant provides her DA Form 3286-66 (Statement of Understanding,
United States Army Incentive Enlistment Program) and her DD Form 214
(Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant enlisted in the U.S. Army Reserve on 25 July 2000 for a
period of 8 years under the delayed entry program.  She enlisted in the
Regular Army on 22 August 2000 for a period of 4 years.

3.  The applicant’s DA Form 3286-66, paragraph 1a states that she enlisted
for, in addition to the Station of Choice Program, the ACF.  Paragraph 3
states that, if her incentive in paragraph 1a was the ACF, she would be
awarded up to $40,000 at the accrual rate of $1,111.11 for each month
served for a 4-year enlistment.  Paragraph 9 stated in part, “I have read
and understand the statements above and that these statements are intended
to constitute ALL promises and guarantees whatsoever concerning my
enlistment.  No other (verbal or otherwise) promise or representation not
annexed to my enlistment contract is valid or will be honored.”

4.  The applicant enrolled in the MGIB on 28 August 2000, as required for
eligibility of the ACF incentive.

5.  On 27 August 2004, the applicant was released from active duty.

6.  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 her enlistment contract.  The opinion states that from
1 April 1993 to 30 September 2004 the dollar amounts reflected on a
Soldiers’ enlistment contract, DA Form 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 (USAREC), 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 her enlistment on 22 August 2000, which was $19,296.00.  The
remainder, $20,704.00, is her ACF incentive, which equates to $575.11 per
month for up to 36 months worth of benefits for full time training.

7.  A copy of the advisory opinion was provided to the applicant for
comment.  On 19 July 2007, she concurred with the advisory opinion.

8.  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.

9.  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 (VA) 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.

10.  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."

11.  The Department of Veterans Affairs booklet, Federal Benefits for
Veterans and Dependents, 2007 edition, states the VA will pay education
benefits for training in college, technical, or vocational school to
eligible veterans.  Benefits are reduced for part-time training.  The VA
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.

12.  Title 10, U. S. Code, section 1552, the law which provides for the
Board, states, “The Secretary may pay, from applicable current
appropriations, a claim for the loss of pay, allowances, compensation,
emoluments, or other pecuniary benefits, or the repayment of a fine or
forfeiture, if, as a result of correcting a record under this section, the
amount is found to be due the claimant on account of his or another’s
service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the
case may be.”

13.  Title 31, U. S. Code, section 3702, also known as the barring statute,
prohibits the payment of a claim against the Government unless the claim
has been received by the Comptroller General within 6 years after the claim
accrues. Among the important public policy considerations behind statutes
of limitations, including the 6-year limitation for filing claims contained
in this section of Title 31, U. S. Code, is relieving the government of the
need to retain, access, and review old records for the purpose of settling
stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DA Form 3286-66 stated she was enlisting, in addition
to another enlistment incentive, for the ACF for $40,000.  This document
implied that she would receive $40,000 for the ACF in addition to whatever
she would be entitled to under the MGIB.  Army Regulation 601-210, Table 9-
4 of the version in effect at the time, explained the ACF and stated that
applicants for enlistment would be advised that the ACF provides additional
educational assistance in addition to that earned under the MGIB.

2.  USAREC’s 12 November 1998 message clarified that the MGIB and ACF
amounts reflected were the total combined amounts of the MGIB and ACF, and
it may be presumed that the applicant’s recruiter/counselor explained this
to her.  Nevertheless, the applicant’s DA Form 3286-66 also stated that the
[written] statements [in her enlistment contract] were intended to
constitute ALL promises and guarantees whatsoever concerning her
enlistment.  And, again, her DA Form 3286-66 clearly implies that the
$40,000 for the ACF would be in addition to the MGIB.

3.  The MGIB/ACF benefit is disbursed in 36 equal monthly installments
while enrolled in an approved program of education.  The MGIB/ACF benefit
is $40,000.00 pro-rated over 36 months.  The MGIB portion is $536.00 per
month and the ACF benefit is $575.11 per month while enrolled in an
approved program of education.  The VA will/should pay the applicant that
amount.

4.  The applicant’s military records may be corrected to show her DA Form
3286-66 was 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.”  This would allow the Board to invoke that
provision and pay her the funds due for the ACF that have been determined
ineligible for payment under other appropriations.

5.  The above correction will allow the Board to pay the applicant an
additional ACF payment up to $19,286.00 or $536.00 per month in 36 monthly
installments, for the time she was/is enrolled in an approved program of
education.

BOARD VOTE:

__le____  __jtm___  __rtd___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that Department of the Army records of the individual concerned be
corrected by amending her DA Form 3286-66 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.”

2.  As a result of the above correction, the applicant will be required to
provide to the Defense Finance and Accounting Service (DFAS) documentation
from the VA showing when they paid her MGIB/ACF payments to her.  DFAS
shall then remit to the applicant the amount of $536.00 for each month up
to 36 months based on the Board’s decision to pay additional ACF payments
up to $19,296.00.

3.  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 VA verifying or showing they paid her MGIB/ACF
payments to her for any period prior to the date of these Proceedings.

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

5.  It is recognized that DFAS may be limited by the barring statute from
complying with this recommendation/directive if the applicant submits her
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.  She would need to provide all records of payments made
by the VA that were not paid by DFAS.




                                  __Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003745                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070823                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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