IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120007821 


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, correction of his record to show a valid contract for a $40,000 Army College Fund (ACF) kicker and payment of ACF education benefits.

2.  He states when he requested payment of the ACF benefits he was told that his enlistment contract did state he was eligible for the ACF kicker; however, a form was missing that prevented payment of the benefit.  He believes a recruiter forgot to complete the necessary form for payment of the benefit.

3.  He provides no documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the U.S. Army Reserve (USAR), Delayed Entry Program (DEP) on 11 February 2003.  He was discharged from the DEP on 
31 March 2003.  On 1 April 2003, he enlisted in the Regular Army (RA) for a period of 4 years.

3.  A DD Form 1966 series (Record of Military Processing - Armed Forces of the United States), dated 11 February 2003 and updated on 1 April 2003, was prepared by an Army recruiter during the applicant's entrance processing.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or Assignment to a Geographical Area Guarantees), section a, shows, in part, the applicant enlisted for option 384 (ACF – $40,000 level) and for training in military occupational specialty (MOS) 91W (Healthcare Specialist, later converted to MOS 68W).

4.  A DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)), dated 4 April 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.  He signed section c indicating he was enrolled in the MGIB.

5.  His record does not include an addendum to his enlistment contract documenting the specific conditions he was required to meet for ACF eligibility.  

6.  His record shows he completed training in the MOS for which he enlisted and held this MOS throughout his active duty service.  

7.  On 31 March 2007, he was honorably released from active duty after completing 4 years of net active service.  

8.  On 7 May 2012, during the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, who recommends denial of the applicant's request.  

	a.  The advisory official confirms the applicant was guaranteed the ACF in the amount of $40,000 when he enlisted.  He notes the applicant's record does not contain a contract addendum, although item 32a of his DD Form 1966 series shows option 384, which is the ACF ($40,000-level).

	b.  The advisory official states the ACF is governed by statute in Chapter 30, Title 38, U.S. Code.  It is an incentive that includes the basic MGIB plus an additional stipend or "kicker."  When added together, MGIB plus the "kicker" equal the full ACF amount in the contract (in this case, $40,000).  In instances where Congress raises the basic GI Bill stipend, the impact of the ACF suffers since the MBIG plus ACF amount is capped at the level listed in the contract, and the MGIB amount alone exceeds the ACF amount.  

	c.  Contracts issued prior to 1 October 2004 were subject to a Department of Defense-imposed cap, which in most cases negated further "kickers."  Due to Congressional interest, the Fiscal Year 2009 National Defense Authorization Act gave the ABCMR the authority to rectify cases involving the ACF.  The authority expired on 31 December 2009 and was not renewed.  Because legal authority has expired, the advisory official recommends denial.

9.  On or about 31 May 2012, the applicant responded to the advisory opinion.  

	a.  He states, in part, that one of the reasons he enlisted was to receive "a special $40,000.00 signing bonus in addition to the usual G.I. bill to be given and used for my schooling after finishing my 4 years."  He gave the contract to the appropriate person during his enlistment processing, but when he applied for the benefit he was denied due to the absence of a form.  He believes the absence of the form is the result of a Soldier's failure to do his job.  

	b.  He notes the advisory opinion states he is not entitled to any more money, and he further notes he has not received "any of the bonus money."  He expects the bonus to be honored.

10.  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.

11.  U.S. Army Recruiting Command (USAREC) message 03-033, date-time-group 142014Z March 2003, mirrors an 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 (dynamic annex, copy B) 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 available evidence partially supports the applicant's request for correction of his record to show a valid contract for a $40,000 ACF kicker and payment of this benefit.

2.  The DD Form 1966 series completed when he enlisted clearly shows he enlisted for the $40,000.00 ACF option.  Therefore, it would be appropriate to provide him a DA Form 3286-66 showing he enlisted in the RA for 4 years for the ACF ($40,000.00) option.

3.  The ACF is not a stand-alone benefit.  It is used, in effect, to increase MGIB benefits to the contracted amount.  In this case, the maximum combined benefit the applicant could have received is $40,000.  

4.  As noted in the advisory opinion, if MGIB stipends are increased, the ACF "kicker" is reduced.  Further, if MGIB stipends are increased in excess of the contracted ACF amount, the ACF is not paid.  

5.  Prior to 31 December 2009, the ABCMR had the authority to rectify cases involving the ACF when an enlisted member had not been properly informed that the MGIB and ACF were a combined benefit.  While this may have happened in the applicant's case, the ABCMR's authority to address this matter has expired.  The applicant should, however, contact the Department of Veterans Affairs to determine if, based on the changes recommended below, he is eligible for any additional education benefits.  

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 preparing a DA Form 3286-66 showing he enlisted in the RA for 4 years for the ACF ($40,000.00) option and providing him a copy of this document.

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 ACF, in addition to his MGIB 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)                                         AR20120007821



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ABCMR Record of Proceedings (cont)                                         AR20120007821



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