BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100015274 


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 correction of his records to show he was authorized the Montgomery G.I. Bill (MGIB) Kicker.

2.  The applicant states he was promised the MGIB Kicker and requests that he be granted it due to extenuating circumstances and a clerical error that occurred at the time of his enlistment.  He states:

	a.  His recruiter and Military Entrance Processing Station (MEPS) personnel ensured him he was going to receive the MGIB Kicker at the time of his enlistment.  He states he was told that in accordance with (IAW) Strength Maintenance Operations Message (SMOM) 06-028 the Army National Guard College First Enlistment Option specifically states under paragraph 3 that College First applicants who enlist for at least 6 years will receive a monthly $350 MGIB Kicker for their enlistment.

	b.  The Recruiting Command also believes he should be given the MGIB Kicker as they submitted an exception to policy on his behalf.  The request for exception to policy was denied.  The reason for the denial was that a separate SMOM 07-002 stated that he had to be in a critical military occupational specialty (MOS) and that there was no mention of the MGIB Kicker in his contract.  As a rebuttal to the critical MOS issue, the applicant states he would have signed up for a critical MOS if he had been told that he needed it for the MGIB Kicker.  He states that at the time he was told he would receive the MGIB Kicker with his current MOS.

	c.  He continues by stating he has been a Soldier in good standing and has fulfilled his part of the contract, but the Army National Guard (ARNG) has not held true to what he was promised when he first enlisted.  

3.  The applicant provides:

* Memorandum of Record from the Recruiting Retention Office, dated 
8 March 2010
* National Guard Bureau (NGB) Disapproval of the Request for an Exception to Policy for MGIB Kicker
* Washington ARNG (WAARNG) request for exception to policy for the applicant
* Unsigned Printout of SMOM 07-002, dated 6 October 2006
* NGB Form 600-7-1-R-E (Annex E to DD Form 4, Non-prior Service Enlistment Bonus Addendum)
* DD Form 4 (Enlistment or Reenlistment Agreement) with Guard Annex
* DD Form 1966 Series (Record of Military Processing)
* Policy Memorandum #06-028 (listed, not attached)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the ARNG on 3 July 2007 with no prior service.  He completed initial entry training, was awarded the military occupational specialty (MOS) of 27D (paralegal specialist), and he was promoted to pay grade E-4.

2.  The applicant's DD Form 4 shows he enlisted in the WAARNG for 6 years as a unit member.  Page one of this form lists Annex A and Annex E as part of his enlistment contract.  At the time of his enlistment, his guidance counselor, who signed all of the applicant’s enlistment documents, did not complete an NGB Form 5435 (Annex K to DD Form 4 - MGIB Kicker Incentive Addendum) and this annex is not listed with the other annexes on the DD Form 4.  The following is included with the DD Form 4:  

	a.  Annex E shows the applicant enlisted in MOS 27D for 6 years with an enlistment bonus.  This Annex contains a bonus control number indicating the bonus was approved for the applicant.

	b.  The Guard Annex shows he agreed to serve 6 years in MOS 27D.

* Section IV of this annex shows he was enlisting for the ARNG College First Program and he would receive 24 months of non-deployability.
  
* (2)  Section VII - Addendums - shows the MGIB was attached as part of the applicant's enlistment agreement.

* (3)  Section VIII - Statement of Acknowledgement and Understanding states:  "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.  I hereby state that I have NOT been promised anything other than what is written on this form and hereby waive any claim based upon any promise or representation not annexed in my contract."

3.  The applicant's DD Form 1966, page 3, item 32a (Specific Option/Program Enlisted For) entry includes a 6x2 - Enlistment Bonus and the ARNG Standard Training Program.

4.  An NGB Memorandum, subject:  Exception to Policy for MGIB Eligibility (applicant), dated 18 August 2009, states the WAARNG's exception to policy request for an MGIB Kicker for the applicant was disapproved.  Paragraph 3 of this memorandum states the applicant enlisted in a non-critical MOS and unit. Therefore, he did not meet the eligibility criteria in place for an MGIB Kicker at that time.  The memorandum further states the applicant's enlistment contract made no mention of an MGIB Kicker.

5.  The NGB MGIB Kicker Program policy is detailed in a memorandum subject:  FY07 National Guard College First (NGCF) Enlistment Option which states that applicants who enlist under the ARNG College First Enlistment Option will receive a $350 ARNG MGIB Kicker if they enlist in a critical MOS and a deployable Table of Distribution and Allowances (TDA) or Modified Table of Organization and Equipment (MTOE) unit.  It further states that a Kicker bonus control number must be entered on the ARNG Kicker contract for an applicant to be eligible to receive the ARNG Kicker.

6.  A Memorandum of Record from a Recruiting and Retention Noncommissioned Officer (NCO), Lakewood, WA, dated 8 March 2010, states the applicant enlisted under the NGCF Option.

7.  In the processing of this case an advisory opinion was obtained from the NGB, Personnel Division.  NGB recommended approval of the applicant's request for the MGIB Kicker for $350 per month for 36 months.  NGB states the 


recommendation is based on the memorandum requesting a waiver from the WAARNG Recruiting and Retention Command, dated 8 July 2009.  NGB stated a memorandum from the Washington ARNG Recruiting and Retention Office, dated 8 March 2010, indicates the applicant "enlisted under the college first option."  This is supported by the Enlistment/Reenlistment Agreement, Guard Annex, document signed by the applicant on 3 July 2007, which states on page 2, (a), "I am enlisting for a 6 (six) or 8 (eight) year Troop Program Unit enlistment into the Army National Guard College First Program and will receive 24 months of non-deployability."

8.  NGB continues by stating a request for a waiver by the WAARNG was denied by NGB-EDU per their memorandum, dated 18 August 2009.  The NGB Personnel Division states the determination was based on the fact that the applicant's MOS was not a designated critical MOS and unit and the MGIB Kicker was not referenced anywhere in his enlistment contract.

9.  The NGB further states the MGIB Kicker Program (NGB-ARM Policy #07-12), dated 20 April 2009, paragraph 5c, states in part, "College First Enlistment Option, $350 ARNG MGIB Kicker Rate.  Applicants who enlist under this option will receive a $350 ARNG MGIB Kicker if they enlist for at least 6 years into a critical MOS and a deployable TDA or MTOE unit."

10.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not submit a response. 

11.  Army Regulation 601-210, paragraph 6–5, Procedures Applicable to Regular Army, Army Reserve, and ARNG, states that the guidance counselor will:

	a.  review the DD Form 1966 and supporting documents with the individual for errors or missing data, and make corrections where applicable.

	b.  review the enlistment Annex for Regular Army, U.S. Army Reserve, and ARNG.  Initiate and review forms with individual.  This review is an important part of the enlistment process.  The statements, completed correctly, prevent the possibility of erroneous enlistment, broken enlistment commitments, and misunderstanding on entitlements, assignments, and other matters relating to the enlistment agreement.  

	c.  ensure that statements for enlistment entered in the above document and in the DD Form 1966 Remarks section, when applicable, accurately reflect the enlistment commitment.

	d.  counsel individual on the benefits of the Veteran’s Educational Assistance Act of 1984 (MGIB).

	e.  ensure applicant completes statement on enlistment annex for Educational Incentive Programs for which contracting.

DISCUSSION AND CONCLUSIONS:

1.  While it is not annotated on all prescribed documents, based on page 2 of the applicant's Guard Annex and the Memorandum of Record from a Recruiting and Retention NCO it appears he enlisted for the ARNG College First Program and would receive 24 months of non-deployability.  However, there is no mention of the MGIB Kicker on this or any other document in his enlistment agreement.

2.  Notwithstanding the NGB Personnel Division advisory opinion, based in part on the 2009 Kicker Program policy, the fact remains that the applicant did not enlist in a critical MOS and unit and his enlistment contract did not include an ARNG MGIB Kicker contract.  Additionally, all documents in the applicant’s enlistment agreement were signed or initialed by him and his guidance counselor indicating there were no other (verbal or otherwise) promises or representation not annexed to his enlistment contract and that he had not been promised anything other than what was written on those forms and thereby waived any claim based upon any promise or representation not annexed in his contract.

3.  To be eligible for the MGIB Kicker the applicant was required to enlist in a critical MOS and unit and be deployable.  NGB's Education, Incentives and Employment Division disapproval of the request for exception to policy states the applicant enlisted in a non-critical MOS and unit and that his enlistment contract did not include an Annex K (MGIB Kicker contract).  In addition, the Guard Annex indicated he would receive 24 months of non-deployability.  As such, there is insufficient evidence to show he is entitled to the MGIB Kicker.

4.  While the applicant states he would have signed up under a critical MOS if he had been told that he needed it for the MGIB Kicker, there is no evidence to support this contention.

5.  The applicant's enlistment contract does not show he contracted for the MGIB Kicker.  The Comptroller General of the United States has ruled in similar cases that although a service member may have been misinformed about his or her entitlements, the Government is not liable for erroneous actions of its officers, agents, or employees in the performance of their official duties.  In this case, the MGIB Kicker is not even listed on his enlistment contract.

6.  In view of the foregoing, there is no inequity or injustice and therefore no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x___  ___x____  ___x___  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.




      _______ _   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)                                         AR20100015274



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ABCMR Record of Proceedings (cont)                                         AR20100015274



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