BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120018930 


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 Army College Fund (ACF).

2.  The applicant states the ACF was one of the options she enlisted for when she enlisted in the U.S. Army.  During the early part of her enlistment, she was told that proof of her ACF incentive option was lost.  She recently found a copy of the document that shows she enlisted for the ACF.

3.  The applicant provides copies of Congressional correspondence and her enlistment contract.

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.  A DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 9 November 1983 and updated on 21 and 28 November 1983, was prepared by the Army recruiter on the occasion of processing the applicant for her entrance into the U.S. Army.  Section VI (Enlistment Options Accepted), item 42j (Specific Option/Program Enlisted for), shows that in accordance with Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), she enlisted for:

* Table 9-3 (U.S. Army Training of Choice)
* Table 9-15 (U.S. Army College Fund)

3.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 21 November 1983.  She was discharged from the USAR DEP on 27 November 1983 and enlisted in the Regular Army (RA) on 28 November 1983 for a period of 3 years.

4.  A DA Form 3286-40 (Statements for Enlistment – DEP), dated 21 November 1983, shows, in part, "Upon enlistment in the RA, I will be enlisted under the provisions of Army Regulation 601-210:

* Table 9-3 (U.S. Army Training of Choice)
* Table 9-15 (U.S. Army College Fund)"

5.  The applicant was awarded military occupational specialty 91B (Medical Specialist).  She was promoted to the rank of sergeant/pay grade E-5 on 1 April 1989.

6.  The applicant was honorably discharged from the RA on 9 November 1990. She completed 6 years, 11 months, and 12 days of total active service.

7.  In support of her application, the applicant provides a copy of a letter from the Honorable S____ J____, U.S. House of Representatives, dated 7 January 1992, that shows he obtained a report from the U.S. Army in response to the applicant's inquiry and he provided the report to her.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Department of the Army Office of the Deputy Chief of Staff, G-1.

	a.  The advisory official's review revealed that the applicant was guaranteed the ACF when she enlisted in the RA on 28 November 1983.  She was separated on 9 November 1990.

	b.  He noted that the ACF is an incentive that includes the basic plus an additional stipend or "kicker" that, when added together, is equal to the full ACF amount in the contract.  However, in this case, no amount was written into the contract.

	c.  Available data for 1983 shows the maximum ACF benefit for that time period would have been $4,700.00 in Veterans Educational Assistance (VEAP) benefits plus a maximum "kicker" of $12,000.00.

	d.  A Soldier had until 10 years after separation to use all benefits under this program.  In the applicant's case, her benefits would have to have been used by 9 November 2000.

	e.  The advisory official recommends denial of the applicant's request for administrative relief.

9.  The applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.

10.  On 5 February 2013, the applicant stated that there are several reasons why the requirement to use the ACF benefit within 10 years of her separation date should not apply in her case.

	a.  Information concerning the ACF, including the 10-year rule, was not disclosed to her when she separated from the Army.  In fact, at that time, Army officials maintained that she was not eligible to receive the ACF because the documentation could not be located.

	b.  Over the past 22 years, particularly during the first 10 years after separating from the Army, she petitioned the U.S. Army, Department of Veterans Affairs (VA), and State officials concerning her ACF benefits, but without results.

	c.  She has completed her degree in business finance.  She is not asking to use the ACF to attend college.  She is asking for the Army to honor its guarantee to pay for the schooling she has already completed.

11.  Title 38, U.S. Code, section 3031 (Time Limitation for Use of Eligibility and Entitlement) provides that the period during which an individual entitled to educational assistance under this chapter may use such individual's entitlement expires at the end of the 10-year period beginning on the date of such individual's last discharge or release from active duty.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding payment of the ACF have been carefully considered.

2.  The evidence of record shows the applicant's enlistment contract (i.e., the DD Form 1966 and DD Form 3286-40 completed in November 1983) clearly show she enlisted for the ACF incentive option.  In addition, in January 1992, approximately 14 months after her separation, the applicant was provided a report from the U.S. Army related to an inquiry she made, presumably concerning her ACF benefit.

3.  Thus, the evidence of record shows that documentation pertaining to the applicant's ACF incentive option was available in her military personnel records during her period of active duty and at the time of her separation from the Army.  In addition, it appears she was provided copies of the documents in 1992.

4.  Nowhere in her contract does it state the ACF amount includes the VEAP. 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 military recruiters to properly advise applicants for enlistment on matters relating to their enlistment options.

5.  There is insufficient evidence to show the applicant applied to the VA to use her ACF benefit within the required 10-year period and/or that such a request was denied by the VA.

6.  Therefore, based on the all of the foregoing, there is insufficient evidence which would warrant granting the relief requested.



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 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)                                         AR20120018930



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ABCMR Record of Proceedings (cont)                                         AR20120018930



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