BOARD DATE:	 1 December 2009  

		DOCKET NUMBER:  AR20090020291 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be paid $42,000.00 in Army College Fund (ACF) benefits as outlined in his enlistment contract.

2.  The applicant states, in effect, that when he enlisted, he was promised $42,000.00 for college with the ACF.  He was never made aware that part of the $42,000.00 included the amount he was to receive for his Montgomery GI Bill (MGIB).  He was under the impression that the ACF of $42,000.00 was a separate entity.

3.  The applicant provides a copy of his Statement for Enlistment - United States Army Enlistment Program, dated 2 March 2004; a copy of his DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)), dated 8 March 2004; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 2008, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 2 March 2004 for a period of 3 years.

2.  The applicant’s Statement for Enlistment - United States Army Enlistment Program, paragraph 1a, states that he enlisted for the ACF.  Paragraph 2a states that, if his incentive was the ACF, he would be awarded the amount indicated, as it applies to the term of enlistment he is enlisting for.  Paragraph 13 states 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."

3.  The applicant enrolled in the MGIB as required for eligibility of the ACF incentive.

4.  On 1 March 2008, the applicant was released from active duty.

5.  The Education Incentives Branch of the U.S. Army Human Resources Command (USAHRC) has determined that from 1 April 1993 to 30 September 2004 the dollar amounts reflected on a Soldier's enlistment contract combined the MGIB and ACF benefits.  This form did not clarify this information and it was blatantly misleading to the applicant entering active duty.  The proponent of the form is the U.S. Army Recruiting Command, which has since revised the form and produced it in an electronic format to include appropriate changes.

6.  The applicant’s contract reflects $42,000.00.  This dollar amount included the basic rate of the MGIB at the time of his enlistment on 2 March 2004, which was $35,460.00.  The remainder, $6,540.00, is his ACF incentive, which equates to $181.67 per month for up to 36 months worth of benefits for full-time training.

7.  The Education Incentives Branch, USAHRC, confirmed that the ACF is a fixed amount based on the month and year the member entered active duty.

8.  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 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.

9.  The Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, 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.

10.  Section 549, Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Public Law 110-417, authorizes the Secretary of the Army to consider through the Army Board for Correction of Military Records a request for the correction of military records relating to the amount of the ACF benefit to which a member or former member may be entitled under an Army Incentive Program contract.  If the Secretary of the Army determines that the correction of military records is appropriate, the Secretary may pay such amounts as the Secretary considers necessary to ensure fairness and equity with regard to the request.

11.  Public Law 110-417 provides that payment of the ACF benefit may be made without regard to any limits on the total combined amounts established for the ACF and the MGIB.  Payments shall be made solely from funds appropriated for military personnel programs for fiscal year 2009.  No payment may be made after 31 December 2009.

12.  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 Statement for Enlistment - United States Army Enlistment Program stated he was enlisting for the ACF for $42,000.00.  This enlistment document implied that he would receive $42,000.00 for the ACF in addition to whatever he would be entitled to under the MGIB.

2.  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 educational assistance in addition to that earned under the MGIB; nevertheless, the applicant’s enlistment contract also stated that the written statements in his enlistment contract were intended to constitute ALL promises and guarantees whatsoever concerning his enlistment.  Again, his Statement for Enlistment - United States Army Enlistment Program clearly implies that the $42,000.00 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 
$42,000.00 pro-rated over 36 months.  The MGIB portion is $35,460.00 (or $985.00 per month for 36 months) and the ACF benefit is $6,540.00 (or $181.67 per month for 36 months) while enrolled in an approved program of education.  The VA should pay the applicant that amount.

4.  The applicant’s military records may be corrected to show his Statement for Enlistment - United States Army Enlistment Program was amended to include the sentence, "If ACF benefits in the amount of $42,000.00 (exclusive of MGIB benefits) 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 $42,000.00 over the amount of the MGIB benefits, the Army may pay said benefits in accordance with the guidance in Public Law 110-417."

5.  The above correction will allow the Army to pay the applicant an additional ACF payment up to $35,460.00 or $985.00 per month in 36 monthly installments, for the time he was/is enrolled in an approved program of education.  This amount, plus the ACF in the amount of $6,540.00 the VA should pay, totals the $42,000.00 ACF benefit listed in his enlistment contract.

BOARD VOTE:

___x____  ___x____  ___x____  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 his Statement for Enlistment - United States Army Enlistment Program, dated 2 March 2004, to include the sentence, "If ACF benefits in the amount of $42,000.00 (exclusive of MGIB benefits) 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 $42,000.00 over the amount of the MGIB benefits, the Army may pay said benefits, at its sole discretion, in accordance with Public Law 110-417."
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 it paid MGIB/ACF payments to him.  DFAS shall then remit to the applicant the amount of $985.00 for each month up to 36 months based on the Board’s decision to pay additional ACF payments up to $35,460.00.

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 it paid MGIB/ACF payments to him 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 he applies to DFAS (Director, DFAS-Indianapolis, Department 3300, ATTN:  COR/Claims, 8899 East 56th Street, Indianapolis, IN  46249-3300) for payment.

5.  Although the ABCMR has directed relief in this case, Public Law 110-417 provides that payment shall be made solely from funds appropriated for military personnel programs for fiscal year 2009 and that no payment may be made after 31 December 2009.  This application was received after the 1 October 2009 deadline provided by the ABCMR and if the correction directed cannot be accomplished by the 31 December 2009 deadline during normal processing; there is no effective relief available to the applicant in this case.

6.  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 its 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 VA that were not paid by DFAS.



      __________x_____________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20090020291



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020291



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1