IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110023146 


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, in effect, payment of the $40,000.00 Army College Fund (ACF) kicker.

2.  The applicant states he was told by his recruiter that if he signed up for the ACF in lieu of an enlistment bonus, he would receive a total of $40,000.00 over
4 years while attending college.  This educational benefit would be in addition to his Montgomery GI Bill (MGIB) benefits.

	a.  In preparing for his separation from the Army, he submitted his claim for educational benefits to the Department of Veterans Affairs (VA).  He was informed that a DD Form 3286 (Statement of Understanding, U.S. Army Incentive Enlistment Program) was supposed to have been completed at the time of his enlistment.  He adds that he was never given the form.

	b.  He states he has a DD Form 2366 (MGIB of 1984) and a Military Entrance Processing Station (MEPS) reservation form that show he was to receive the ACF.  However, these forms are not sufficient for the VA to process his claim.

	c.  He states he was promised the ACF benefit and, if he is denied the benefit, then it is a breach of contract.  He adds he has since learned that this is a common problem among veterans who feel they were duped into giving up an enlistment bonus in favor of the non-existent ACF.

3.  The applicant provides copies of his DD Form 2366 and reservation form.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR), Delayed Entry Program (DEP) on 19 March 2003.  He was discharged from the DEP on 
23 June 2003 and he enlisted in the Regular Army (RA) on 24 June 2003 for a period of 4 years.

2.  A DD Form 1966-Series (Record of Military Processing - Armed Forces of the United States), dated 19 March 2003 and updated on 24 June 2003, was prepared by the Army recruiter on the occasion of processing the applicant for his entrance into the U.S. Army.

	a.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), section a, shows he enlisted for the U.S. Army Training Enlistment Program (Military Occupational Specialty (MOS) 52C1O -Utility Equipment Repairman).

	b.  Section VI (Remarks) shows the entry "Applicant received ACF request option 384 ACF $40,000.00.  This did not populate DD [Form] 1966 or the Annex form.  Authorized as per USAREC [U.S. Army Recruiting Command] message 03-033, date-time-group 142014Z March 2003, effective 17 March 2003."

3.  A DD Form 2366, dated 19 March 2003, shows in item 2 (Statement of Understanding), section c (All Other Service Members), the applicant was eligible for the MGIB and understood he was automatically enrolled in the MGIB unless he exercised the option to disenroll by signing item 4 of the document.

	a.  The applicant affixed his signature to section c of the statement indicating he was enrolled in the MGIB, as required for eligibility of the ACF incentive.

	b.  Item 3 (Service Unique Education Assistance Options) contains the entries "Term of Enlistment:  4 Years 00 Weeks" and "MOS:  52C."

	c.  Item 4 (Statement of Disenrollment) of the document is absent the applicant's signature.

4.  A Statement for Enlistment, U.S. Army Enlistment Program (DEP-OUT), dated 24 June 2003, shows in:

	a.  item 1 (Acknowledgement) he enlisted for the U.S. Army Training Enlistment Program (MOS 52C, Utility Equipment Repairman);


	b.  item 2 (Associated Options), "in connection with my enlistment into the RA, I hereby acknowledge and understand":

		(1)  No Associated Options;

		(2)  Education Program Montgomery GI Bill (MGIB); and

		(3)  "I certify that I have read, reviewed, and understand the Information for Applicants (Table 9-1 of Army Regulation 601-210) for the enlistment programs I am enlisting for."

	c.  The applicant affixed his signature to the statement on 24 June 2003.

5.  A DD Form 2366, dated 27 June 2003, shows in item 2, section c, the applicant was eligible for the MGIB and understood he was automatically enrolled in the MGIB unless he exercised the option to disenroll by signing item 4 of the document.

	a.  The applicant affixed his signature to section c of the statement indicating that he was enrolled in the MGIB, as required for eligibility of the ACF incentive.

	b.  Item 3 contains the entry "I understand that I am enlisting for the Army College Fund; therefore, I must remain enrolled in the Montgomery GI Bill."

	c.  Item 4 of the document is absent the applicant's signature.

6.  The applicant's service records do not contain a DA Form 3286-66.

7.  In support of his application, the applicant provides the following documents:

	a.  a copy of the DD Form 2366, dated 19 March 2003, that was previously considered; however, item 3 of the copy provided also shows the handwritten entry, "ACF $40,000.00 as per USAREC msg 03-033, dtg 142014Z March [2003]; and

	b.  an Army reservation form, dated 19 March 2003, that shows a successful reservation was completed for the applicant to enlist in the RA for a period of
4 years for the following options:

* U.S. Army Training of Choice - MOS 52C (Utility Equipment Repairman - Heating and Air Conditioning)
* U.S. Army College Fund  (4 Years / $40,000.00)


8.  The applicant reenlisted in the RA for a period of 3 years on 22 June 2009.

9.  In connection with the processing of this case, on 5 January 2012, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.

	a.  The advisory official recommends the applicant be granted relief and authorized the ACF option at the $40,000.00 level.

	b.  The advisory official noted the applicant's DEP-OUT form is, in fact, the predecessor to the DA Form 3286 (dynamic annex, copy B).

	c.  The applicant's DEP-OUT form is missing the ACF data; however, the
DD Form 2366, dated 19 March 2003, clearly shows the applicant enlisted for the $40,000.00 ACF option at the 4-year rate (then $40,000.00).  As such, it should have been listed on his contract annex.

10.  On 11 January 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant indicated that subsequent to submitting his request to the Board requesting a DA Form 3286, the VA advised him he was eligible to receive the ACF subject to the VA receiving a DA Form 3286-66 (vice a DA Form 3286).  He added, if the DA Form 3286 is sufficient to receive his educational benefits, then he concurs with the advisory opinion.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), Table 9-4, dated 28 February 1995 (the version in effect at the time of the applicant's enlistment), explains the ACF.  It states applicants for enlistment will be advised of the following:  The ACF provides additional educational assistance in addition to that earned under the GI Bill.  The money earned is deposited in the Soldier's VA account.  Normally, the funds will be disbursed to the participant in 36 equal monthly installments while the person is enrolled in an approved program of education.

12.  USAREC message 03-033, date-time-group 142014Z March 2003, mirrored HQDA message, dated 14 March 2003, subject:  Enlistment Incentive Program Changes, effective 17 March 2003.  Paragraph 8 provides guidance on the ACF.  It states, "The ACF (when combined with the MGIB) maximum amounts are
$40,000.00 for a 4 or more year term of service."  It also states that guidance counselors will annotate the correct amount on the DA Form 3286-66 and will 


ensure Soldiers understand the importance of maintaining the DA Form 3286-66 for verification to VA of ACF benefits.  Applicants may combine the ACF with all other incentives except the Loan Repayment Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.

2.  The applicant's enlistment contract (i.e., DD Form 1966 and DD Form 2366, dated 27 June 2003) clearly shows the applicant enlisted for the $40,000.00 ACF option at the 4-year rate.  However, the applicant's DEP-OUT (annex) form, which is the predecessor to the DA Form 3286-66, is missing the ACF data.  Therefore, it would be appropriate to correct the DEP-OUT annex to show he enlisted for the ACF option and provide the applicant a DA Form 3286-66 showing he enlisted in the RA for 4 years for the ACF ($40,000.00) option.

3.  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 is presumed regarding the regulatory requirement for applicants for enlistment to be properly advised of the ACF.

4.  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.  An HQDA message, dated 14 March 2003, clarified that the amount reflected was to be the total combined amount of the MGIB and the ACF.  The applicant enlisted in the USAR in March 2003 and entered the RA in June 2003.  There is insufficient evidence to show he was not advised that the $40,000.00 listed as his ACF benefit was the total combined amount of the MGIB and the ACF.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X ___  ____X___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to his DEP-OUT annex form the entry:  "Request Option 384, ACF $40,000.00, authorized per U.S. Army Recruiting Command, message 03-033, date-time-group 142014Z March 2003, effective 17 March 2003."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to him receiving a total of $40,000.00 under the Army College Fund, in addition to his Montgomery GI Bill benefits.



      __________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)                                         AR20110023146



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ABCMR Record of Proceedings (cont)                                         AR20110023146



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